at^i .  ^  .,.,.iA 


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CASES 


ON 


INTERNATIONAL  LAW 

PRINCIPALLY  SELECTED  FROM   DECISIONS  OF 

ENGLISH  AND  AMERICAN  COURTS 

EDITED    BY 

JAMES  BROWN  SCOTT 


"The  law  of  nations  Is  naturally  founded  on  this  principle,  that  differ- 
ent nations  ought  in  time  of  peace  to  do  one  another  all  the  good  they 
can,  and  in  time  of  war  as  little  harm  as  possible,  without  prejudicing 
their   real    interests." — Baron   de   Montesquieu,    The   Spirit   of   Laws,    1748. 

''I  am  much  obliged  by  the  kind  present  you  have  made  us  of  your  edition 
of  Vattel.  It  came  to  us  in  good  season,  when  the  circumstances  of  a  rising 
state  make  it  necessary  frequently  to  consult  the  law  of  nations.  Accord- 
ingly, that  copy  which  I  kept  *  *  *  has  been  continually  in  the  hands 
of  the  members  of  our  Congress  now  sitting." — Benjamin  Franklin,  1775. 

"Every  nation,  on  being  received,  at  her  own  request,  into  the  circle  of  civ- 
ilized governments,  must  understand  that  she  not  only  attains  rights  of 
sovereignty  and  the  dignity  of  national  character,  but  that  she  binds  herself 
also  to  the  strict  and  faithful  observance  of  all  those  principles,  laws,  and 
usages  which  have  obtained  currency  among  civilized  states,  and  which 
have  for  their  object  the  mitigation  of  the  miseries  of  war." — Daniel  Web- 
ster, Secretary  of  State,  to   Mr.  Thompson,  Minister  to  Mexico,  April  15,  1842. 


AMERICAN  CASEBOOK  SERIES 
WILLIAM  R.  VANCE 

GENERAL  EDITOR 


ST.    PAUL 

WEST  PUBLISHING  COMPANY 
1922 


61330 


COPTBIGHT,  1922 
BY 

WEST  PUBLISHING  COMPANY 

(Scott  Int. Law.) 


PREFACE  XV 

From  this  justice  nations  must  derive  tlieir  rules  of  law.  And  this  is 
so,  although  they  may  affect  to  consider  themselves  the  source  instead 
of  the  agent  whereby  the  principles  of  justice,  expressed  and  made 
visible  in  rules  of  law,  enter  the  minds  and  the  thoughts  of  men  before 
they  pervade  the  practice  of  nations. 

The  topics  here  selected  are,  in  the  editor's  opinion,  calculated  to  give 
the  student  a  knowledge  of  the  fundamental  principles  of  international 
law,  and  the  cases  will,  it  is  hoped,  furnish  him  training  in  the  discovery 
of  those  principles  and  in  their  application  to  the  concrete  problems  of 
international  life  as  they  present  themselves  to  courts  of  justice  and  to 
tribunals  of  arbitration. 

The  facts  of  the  case  may  be  new,  the  rule  of  law  may  seem  to  be 
new,  and  the  decision  is  necessarily  so;  but  the  principle  of  justice 
which  the  rule  of  law  announces  is  old.  "For  out  of  the  old  fields  must 
come  the  new  corn,"  as  Sir  Edward  Coke  says  in  his  report  of  Calvin's 
Case,  7  Reports,  3  B.  (1608). 

To  the  same  effect  is  the  language  of  Sir  William  Scott,  later  Lord 
Stowell,  which  is  sufficiently  broad  and  comprehensive  to  include 
future  agencies,  whether  they  operate  under  sea  or  in  the  air : 

"I  am  warranted  to  hold,  that  it  is  an  act  which  will  affect  the 
vehicle,  without  any  fear  of  incurring  the  imputation,  which  is  some- 
times strangely  cast  upon  this  court,  that  it  is  guilty  of  interpolations  in 
the  law  of  nations.  If  the  court  took  upon  itself  to  assume  principles 
in  themselves  novel,  it  might  justly  incur  such  an  imputation;  but  to 
apply  established  principles  to  new  cases  cannot  surely  be  so  consider- 
ed. All  law  is  resolvable  into  general  principles.  The  cases  which  may 
arise  under  new  combinations  of  circumstances,  leading  to  an  extended 
application  of  principles,  ancient  and  recognized,  by  just  corollaries, 
may  be  infinite;  but  so  long  as  the  continuity  of  the  original  and 
established  principles  is  preserved  pure  and  unbroken,  the  practice  is 
not  new,  nor  is  it  justly  chargeable  with  being  an  innovation  on  the 
ancient  law,  when,  in  fact,  the  court  does  nothing  more  than  apply  old 
principles  to  new  circumstances."  The  Atlanta,  6  C.  Rob.  440,  458 
(1808). 

And  also  from  the  bench  a  Chief  Justice  has  more  recently  said : 

"It  was  contended  on  behalf  of  the  owners  of  the  Prometheus  that 
the  term  'law,'  as  applied  to  this  recognized  system  of  principles  and 
rules  known  as  international  law,  is  an  inexact  expression ;  that  there 
is,  in  other  words,  no  such  thing  as  international  law ;  that  there  can 
be  no  such  law  binding  upon  all  nations,  inasmuch  as  there  is  no  sanc- 
tion for  such  law ;  that  is  to  say,  that  there  is  no  means  by  which  obe- 
dience to  such  law  can  be  imposed  upon  any  given  nation  refusing  obe- 
dience thereto.  I  do  not  concur  in  that  contention.  In  my  opinion  a 
law  may  be  established  and  become  international — that  is  to  say,  bind- 
ing upon  all  nations — by  the  agreement  of  such  nations  to  be  bound 
thereby,  although  it  may  be  impossible  to  enforce  obedience  thereto  by 


XVI  PREFACE 

any  given  nation  party  to  the  agreement.  The  resistance  of  a  nation 
to  a  law  to  which  it  has  agreed  does  not  derogate  from  the  authority  of 
the  law,  because  that  resistance  cannot,  perhaps,  be  overcome.  Such 
resistance  merely  makes  the  resisting  nation  a  breaker  of  the  law  to 
which  it  has  given  its  adherence,  but  it  leaves  the  law,  to  the  establish- 
ment of  which  the  resisting  nation  was  a  party,  still  subsisting.  Could 
it  be  successful!)'-  contended  that,  because  any  given  person  or  body  of 
persons  possessed  for  the  time  being  power  to  resist  an  established 
municipal  law,  such  law  had  no  existence?  The  answer  to  such  a  con- 
tention would  be  that  the  law  still  existed,  though  it  might  not  for  the 
time  being  be  possible  to  enforce  obedience  to  it."  Sir  Henry  Berkeley 
in  The  S.  S.  Prometheus,  Supreme  Court  of  Hongkong,  2  Hongkong 
Law  Reports,  207,  225  (1906). 

The  knowledge  thus  acquired  is  the  knowledge  of  law  and  the  train- 
ing obtained  is  the  training  in  law. 

The  editor  has  borne  in  mind  Dr.  Johnson's  advice  that  a  book  should 
not  require  references  to  other  works  in  order  to  complete  it.  There- 
fore the  material  portions  of  The- Hague  Conventions  and  some  other 
documents  of  an  international  character  are  brought  together  and 
placed  in  an  appendix. 

These  relate  primarily  to  war  and  the  method  of  its  conduct,  thus 
laying  before  the  student  the  laws  and  customs  of  war  which  have  not 
as  yet  become  the  subject  of  judicial  decision. 

It  is  devoutly  to  be  wished  that  members  of  the  profession  in  foreign 
countries  examine  the  decisions  of  their  own  courts,  the  awards 
of  mixed  commissions  and  sentences  of  arbitral  tribunals  in  whose  cases 
their  respective  countries  have  special  interest,  and  produce  collec- 
tions of  cases,  not,  only  for  the  benefit  of  the  profession  to  which 
they  belong,  but  also  for  the  purpose  of  instruction  in  the  law  schools, 
universities,  and  other  seats  of  learning  in  their  respective  states.    • 

The  many  cases  of  foreign  courts  involving  international  law  which 
have  come  to  the  editor's  attention  convince  him  that  this  can  be  done, 
and  he  had  chosen  not  a  few  foreign  cases  for  this  collection.  It  seem- 
ed, however,  better  on  the  whole  to  confine  the  present  work  to  the 
English-thinking  world  and  to  leave  the  selection  of  foreign  cases  to 
more  competent  hands. 

If  our  friends  in  other  parts  of  the  world  take  kindly  to  the  sug- 
gestion that  they  prepare  collections  of  cases  of  an  international 
character,  the  causes  decided  by  courts  which  are  foreign  to  them  might 
in  some  instances  predominate ;  but  the  collections  would,  nevertheless, 
be  made  up  of  adjudged  cases.  International  law  could  then  be  taught 
quite  generally  from  cases,  and  those  selected  would  be  the  ones  which 
appealed  most  strongly  to  the  profession  in  each  nation  accepting  and 
applying  the  law  of  nations,  and  which,  in  the  judgment  of  competent 
persons,  were  best  fitted  for  purposes  of  instruction  in  their  various 
countries. 


PREFACE  XVll 

It  needs  but  a  slight  familiarity  with  foreign  cases  to  see  how  they 
are  conditioned  in  form  by  local  procedure  and  in  substance  by  local 
law.  The  stream  is  indeed  everywhere  colored  by  the  soil  through 
which  it  reaches  the  sea,  but  the  sea  itself  is  international. 

In  conclusion,  the  editor  tenders  his  thanks  to  Mr.  Ammi  Brown, 
formerly  instructor  of  Law  in  the  Catholic  University  of  America, 
who  prepared  an  imposing  list  of  cases  from  which  to  select,  and  to 
Mr.  Henry  G.  Crocker,  of  the  Division  of  International  Law  of  the 
Carnegie  Endowment  for  International  Peace,  whose  suggestions  as 
to  the  choice  and  shortening  of  cases  have  often  been  followed. 

Jam^s  Brc5wn  Scott. 

Washington,  D.  C,  May  13,  1922. 
Scott  Int.Law— b 


Inscribed  to  the  Memory  of 

FREEMAN  SNOW 

Instructor  of  International  Law  in  Harvard  University 

who  taught  me  to  love  the  law  of  nations, 
and,  in  doing  so,  to  love  him 

(iii)* 


THE  AMERICAN  CASEBOOK  SERIES 


The  first  of  the  American  Casebook  Series,  Mikell's  Cases  on  Crim- 
inal Law,  issued  in  December,  1908,  contained  in  its  preface  an  able 
argument  by  Mr.  James  Brown  Scott,  the  General  Editor  of  the  Se- 
ries, in  favor  of  the  case  method  of  law  teaching.  Until  1915  this 
preface  appeared  in  each  of  the  volumes  published  in  the  series. 
But  the  teachers  of  law  have  moved  onward,  and  the  argument 
that  was  necessary  in  1908  has  now  become  needless.  That  such 
is  the  case  becomes  strikingly  manifest  to  one  examining  three  im- 
portant documents  that  fittingly  mark  the  progress  of  legal  education 
in  America.  In  1893  the  United  States  Bureau  of  Education  pub- 
lished a  report  on  Legal  Education  prepared  by  the  American  Bar  As- 
sociation's Committee  on  Legal  Education,  and  manifestly  the  work 
of  that  Committee's  accomplished  chairman,  William  G.  Hammond, 
in  which  the  three  methods  of  teaching  law  then  in  vogue — that  is,  by 
lectures,  by  text-book,  and  by  selected  cases — were  described  and  com- 
mented upon,  but  without  indication  of  preference.  The  next  report 
of  the  Bureau  of  Education  dealing  with  legal  education,  published 
in  1914,  contains  these  unequivocal  statements : 

"To-day  the  case  method  forms  the  principal,  if  not  the  exclusive, 
method  of  teaching  in  nearly  all  of  the  stronger  law  schools  of  the 
country.  Lectures  on  special  subjects  are  of  course  still  delivered  in 
all  law  schools,  and  this  doubtless  always  will  be  the  case.  But  for 
staple  instruction  in  the  important  branches  of  common  law  the  case 
has  proved  itself  as  the  best  available  material  for  use  practically  ev- 
erywhere. *  *  *  The  case  method  is  to-day  the  principal  method 
of  instruction  in  the  great  majority  of  the  schools  of  this  country." 

But  the  most  striking  evidence  of  the  present  stage  of  development 
of  legal  instruction  in  American  Law  Schools  is  to  be  found  in  the 
special  report,  made  by  Professor  Redlich  to  the  Carnegie  Foundation 
for  the  Advancement  of  Teaching,  on  "The  Case  Method  in  American 
Law  Schools."  Professor  Redlich,  of  the  Faculty  of  Law  in  the  L'ni- 
versity  of  Vienna,  was  brought  to  this  country  to  make  a  special  study 
of  methods  of  legal  instruction  in  the  United  States  from  the  stand- 
point of  one  free  from  those  prejudices  necessarily  engendered  in 
American  teachers  through  their  relation  to  the  struggle  for  supremacy 
so  long,  and  at  one  time  so  vehemently,  waged  among  the  rival  sys- 
tems. From  this  masterly  report,  so  replete  with  brilliant  analysis 
and  discriminating  comment,  the  following  brief  extracts  are  taken. 
Speaking  of  the  text-book  method  Professor  Redlich  says : 

"The  principles  are  laid  down  in  the  text-book  and  in  the  profes- 
sor's lectures,  ready  made  and  neatly  rounded,  the  predigested  essence 

(V) 


VI  PREFACE 

of  many  judicial  decisions.  The  pupil  has  simply  to  accept  them  and 
to  inscribe  them  so  far  as  possible  in  his  memor>\  In  this  way  the 
scientific  element  of  instruction  is  apparently  excluded  from  the  very 
first.  Even  though  the  representatives  of  this  instruction  certainly  do 
regard  law  as  a  science — that  is  to  say,  as  a  system  of  thought,  a  group- 
ing of  concepts  to  be  satisfactorily  explained  by  historical  research  and 
logical  deduction — they  are  not  willing  to  teach  this  science,  but  only 
its  results.  The  inevitable  danger  which  appears  to  accompany  this 
method  of  teaching  is  that  of  developing  a  mechanical,  superficial  in- 
struction in  abstract  maxims,  instead  of  a  genuine  intellectual  probing 
of  the  subject-matter  of  the  law,  fulfilling  the  requirements  of  a 
science." 

Turning  to  the  case  method  Professor  Redlich  comments  as  follows : 

"It  emphasizes  the  scientific  character  of  legal  thought;  it  goes  now 
a  step  further,  however,  and  demands  that  law,  just  because  it  is  a 
science,  must  also  be  taught  scientifically.  From  this  point  of  view  it 
very  properly  rejects  the  elementary  school  type  of  existing  legal  edu- 
cation as  inadequate  to  develop  the  specific  legal  mode  of  thinking,  as 
inadequate  to  make  the  basis,  the  logical  foundation,  of  the  separate 
legal  principles  really  intelligible  to  the  students.  Consequently,  as  the 
method  was  developed,  it  laid  the  main  emphasis  upon  precisely  that 
aspect  of  the  training  which  the  older  text-book  school  entirely  neg- 
lected— the  training  of  the  student  in  intellectual  independence,  in  in- 
dividual thinking,  in  digging  out  the  principles  through  penetrating 
analysis  of  the  material  found  within  separate  cases;  material  which 
contains,  all  mixed  in  with  one  another,  both  the  facts,  as  life  creates 
them,  which  generate  the  law,  and  at  the  same  time  rules  of  the  law 
itself,  component  parts  of  the  general  system.  In  the  fact  that,  as  has 
been  said  before,  it  has  actually  accomplished  this  purpose,  lies  the 
great  success  of  the  case  method.  For  it  really  teaches  the  pupil  to 
think  in  the  way  that  any  practical  lawyer — whether  dealing  with  writ- 
ten or  with  unwritten  law — ought  to  and  has  to  think.  It  prepares  the 
student  in  precisely  the  way  which,  in  a  country  of  case  law,  leads  to 
full  powers  of  legal  understanding  and  legal  acumen;  that  is  to  say, 
by  making  the  law  pupil  familiar  with  the  law  through  incessant  prac- 
tice in  the  analysis  of  law  cases,  where  the  concepts,  principles,  and 
rules  of  Anglo-American  law  are  recorded,  not  as  dry  abstractions,  but 
as  cardinal  realities  in  the  inexhaustibly  rich,  ceaselessly  fluctuating, 
social  and  economic  life  of  man.  Thus  in  the  modern  American  law 
school  professional  practice  is  preceded  by  a  genuine  course  of  study, 
the  methods  of  which  are  perfectly  adapted  to  the  nature  of  the  com- 
mon law." 

The  general  purpose  and  scope  of  this  series  were  clearly  stated  in 
the  original  announcement: 

"The  General  Editor  takes  pleasure  in  announcing  a  series  of  schol- 
arly casebooks,  prepared  with  special  reference  to  the  needs  and  limi- 


PBEFACB  Vll 

tations  of  the  classroom,  on  the  fundamental  subjects  of  legal  educa- 
tion, which,  through  a  judicious  rearrangement  of  emphasis,  shall  pro- 
vide adequate  training  combined  with  a  thorough  knowledge  of  the 
general  principles  of  the  subject.  The  collection  will  develop  the  law 
historically  and  scientifically ;  English  cases  will  give  the  origin  and 
development  of  the  law  in  England;  American  cases  will  trace  its  ex- 
pansion and  modification  in  America ;  notes  and  annotations  will  sug- 
gest phases  omitted  in  the  printed  case.  Cumulative  references  will  be 
avoided,  for  the  footnote  may  not  hope  to  rival  the  digest.  The  law 
will  thus  be  presented  as  an  organic  growth,  and  the  necessary  con- 
nection between  the  past  and  the  present  will  be  obvious. 

"The  importance  and  difficult}-  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. *  *  *  If  it  be  granted  that  all,  or  nearly  all,  the  studies  re- 
quired for  admission  to  the  bar  should  be  studied  in  course  by  every 
student — and  the  soundness  of  this  contention  can  hardly  be  seriously 
doubted — it  follows  necessarily  that  the  preparation  and  publication  of 
collections  of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine 
and  by  no  means  unimportant  service  to  the  cause  of  legal  education. 
And  this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief.     *     *     * 

"The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  classroom  and  the  needs  of  the  students  will  furnish 
a  sound  basis  of  selection." 

Since  this  announcement  of  the  Series  was  first  made  there  have 
been  published  books  on  the  following  subjects : 

Administrative  Lazv.     By  Ernst  Freund,   Professor  of  Law   in  the 

University  of  Chicago. 
Agency.    By  Edwin  C.  Goddard,  Professor  of  Law  in  the  University 

of  Michigan. 
Bills  and  Notes.    By  Howard  L.  Smith,  Professor  of  Law  in  the  Uni- 
versity of  Wisconsin,  and  Underbill  Moore,  Professor  of  Law  in 

Columbia  University. 
Carriers.    By  Frederick  Green,  Professor  of  Law  in  the  University'  of 

Illinois. 
Conflict  of  Laws.     By  Ernest  G.   Lorenzen,   Professor  of   Law   in 

Yale  University, 
Constitutional  Lai^'.     By  James  Parker  Hall,  Dean  of  the  Faculty  of 

Law  in  the  University  of  Chicago. 
Contracts.    By  Arthur  L.  Corbin,  Professor  of  Law  in  Yale  University. 


VXU  PREFACE 

Corporations.  By  Harry  S.  Richards,  Dean  of  the  Faculty  of  Law  in 
the  University  of  Wisconsin. 

Criminal  Law.  By  WilHam  E.  ]^Iikell,  Dean  of  the  Faculty  of  Law  in 
the  University  of  Pennsylvania. 

Criminal  Procedure.  By  William  E.  Mikell,  Dean  of  the  Faculty  of 
Law  in  the  University  of  Pennsylvania. 

Damages.  By  Floyd  R.  Mechem,  Professor  of  Law  in  the  University 
of  Chicago,  and  Barry  Gilbert,  of  the  Chicago  Bar. 

Equity.  By  George  H.  Boke,  formerly  Professor  of  Law  in  the  Uni- 
versity of  California. 

Evidence.  By  Edward  W.  Hinton,  Professor  of  Law  in  the  Universi- 
ty of  Chicago. 

Insurance.  By  William  R.  \'ance,  Professor  of  Law  in  Yale  Uni- 
versity. 

International  Law.  By  James  Brown  Scott,  Lecturer  on  International 
Law  and  the  Foreign  Relations  of  the  United  States  in  the  Set  )ol 
of  Foreign  Service,  Georgetown  University. 

Legal  Ethics,  Cases  and  Other  Authorities  on.  By  George  P,  Costigan, 
Jr.,  Professor  of  Law  in  Northwestern  University. 

Partnership.  By  Eugene  A.  Gilmore,  Professor  of  Law  in  the  Uni- 
versity of  Wisconsin. 

Persons  (including  Marriage  and  Divorce).  By  Albert  M.  Kales,  of 
the  Chicago  Bar,  and  Chester  G.  Vernier,  Professor  of  Law  in 
Stanford  University. 

Pleading  {Common  Law).  By  Clarke  B.  Whittier,  Professor  of  Law 
in  Stanford  University,  and  Edmund  M.  Morgan,  Professor  of 
Law  in  Yale  University. 

Property  (Titles  to  Real  Property).  By  Ralph  W.  Aigler,  Professor 
of  Law  in  the  University  of  Michigan. 

Property  {Personal).  By  Harry  A.  Bigelow,  Professor  of  Law  in  the 
L^niversity  of  Chicago. 

Property  (Rights  in  Land).  By  Harry  A.  Bigelow,  Professor  of 
Law  in  the  University  of  Chicago. 

Property  (Wills,  Descent,  and  Administration).  By  George  P.  Costi- 
gan, Jr.,  Professor  of  Law  in  Northwestern  University. 

Property  {Future  Interests).  By  Albert  M.  Kales,  of  the  Chicago 
Bar. 

Quasi  Contracts.  By  Edward  S.  Thurston,  Professor  of  Law  in  Yale 
University. 

Sales.  By  Frederic  C.  Woodward,  Professor  of  Law  in  the  University 
of  Chicago. 

Suretyship.  By  Crawford  D.  Hening,  formerly  Professor  of  Law 
in  the  University  of  Pennsylvania. 


PREFACE  IX 

Torts.  By  Charles  M.  Hepburn,  Dean  of  the  Faculty  of  Law  in  the 
University  of  Indiana. 

Trusts.  By  Thaddeus  D.  Kenneson,  Professor  of  Law  in  the  Univer- 
sity of  New  York. 

It  is  earnestly  hoped  and  believed  that  the  books  thus  far  published 
in  this  series,  with  the  sincere  purpose  of  furthering  scientific  training 
in  the  law,  have  not  been  without  their  influence  in  bringing  about  a 
fuller  understanding  and  a  wider  use  of  the  case  method. 

W11.LIAM  R.  Vance, 

General  Editor. 


AUTHOR'S  PREFACE 


The  idea  underlying  this  volume  is  that  international  law  is  part  of 
the  English  common  law ;  that  as  such  it  passed  with  the  English 
colonists  to  America ;  that  when,  in  consequence  of  a  successful  rebel- 
lion, they  were  admitted  to  the  family  of  nations,  the  new  republic 
recognized  international  law  as  completely  as  international  law  recog- 
nized the  new  republic.  Municipal  law  it  was  in  England;  municipal 
law  it  remained  and  is  in  the  United  States.  No  opinion  is  expressed 
on  the  vexed  question  whether  it  is  law  in  the  abstract;  our  courts, 
state  and  federal,  take  judicial  cognizance  of  its  existence,  and  in  ap- 
propriate cases  enforce  it,  so  that  for  the  American  student  or  prac- 
titioner it  is  domestic  or  municipal  law. 

If  English  and  American  courts  of  justice  enforce  international  law, 
and  have  repeatedly  done  so  in  the  past  two  centuries,  there  must  be, 
and,  in  fact,  there  is,  a  mass  of  judicial  decision  on  this  subject. 
There  should  be  the  same  reason  for  respecting  precedent  in  this  as  in 
other  branches  of  the  law ;  and  beyond  doubt  in  suits  involving  a  ques- 
tion of  international  law  a  case  in  point  is  cited  and  followed,  unless 
^overruled  or  distinguished  from  the  case  under  consideration.  Judicial 
decisions,  then,  are  an  important  and  indispensable  source  of  authority 
in  international  law. 

It  is  the  judgment  that  is  authoritative,  although  the  obiter  dictum 
of  a  distinguished  judge  is  entitled  to  respect.  The  opinion  of  a  text- 
book writer  is  valuable;  but,  like  the  dictum,  it  is  not  in  itself  law. 
It  is  at  best  a  statement  of  the  underlying  principle  of  the  law  or  a 
digest  or  summary  of  cases  on  the  subject  with  which  the  text-book 
deals.  The  opinions  of  diplomats  likewise  carry  great  weight ;  but  the 
diplomatist  does  not  and  cannot  consider  the  question  at  issue  with 
the  impartiality  of  a  judge,  for  he  is  influenced  by  the  interests  of  his 
country. 

For  these  reasons  the  cases  here  printed  have  been  selected  from  the 
reported  decisions  of  English  and  American  courts;  and  opinions  of 
text-book  writers  and  extracts  from  diplomatic  correspondence  *  *  * 
do  not  appear  in  the  text.^ 

1  The  above  paragraphs  are  retained  from  the  preface  to  a  collection  of 
cases  on  international  law  prepared  by  the  present  editor,  and  published  in 
1902. 

Opinions  of  writers,  extracts  from  diplomatic  correspondence  and  the 
literature  on  the  subject  are  not  included :  they  will  be  found  in  John  Bassett 
Moore's  Digest  of  International  Law  (1906). 

Later  opinions,  extracts  from  diplomatic  correspondence  and  literature  on 
the  subject  are  covered  by  George  A.  Finch's  Analytical  Index  to  the  American 
Journal  of  International  Law  (1921). 

A  single  reference,  covering  eveiT  page  of  the  present  volume,  is  made  to 
these  two  works. 

(xl) 


Xll  PREFACE 

The  statement  that  international  law  formed  a  part  of  the  common 
law  of  England,  and  that  as  such  it  passed  to  the  United  States  with  that 
law  of  which  it  formed  a  part,  can  be  based  upon  judicial  decision  be- 
fore the  separation  of  the  American  colonies  from  the  mother  country, 
upon  the  authority  of  the  accredited  commentator  upon  the  Laws  of 
England,  the  seventh  edition  of  whose  work,  containing  this  statement, 
appeared  in  the  fateful  year  of  1775,  and  upon  the  authority  of  Alexan- 
der Hamilton,  whose  opinion  a?  to  the  law  of  his  country  would  seem 
to  be  conclusive.  Thus,  Lord  Chancellor  Talbot  was  reported  by  Lord 
Mansfield  to  have  "declared."  in  Barbuit's  Case,  "a  clear  opinion  'that 
the  law  of  nations,  in  its  full  extent,  was  part  of  the  law  of  England.'  " 

There  can  be  no  doubt  about  Lord  Talbot's  opinion,  as  Lord  ^lans- 
field  added  that  he  was  "counsel  in  this  case"  and  that  he  had  "a  full 
note  of  it."    Triquet  v.  Bath,  3  Burrow,  1478,  1482  (1764). 

Lord  Mansfield  himself  held,  in  his  own  person,  in  the  case  of  Heath- 
field  V.  Chilton,  that  "the  privileges  of  public  ministers  and  their  retinue 
depend  upon  the  law  of  nations,  which  is  part  of  the  common  law  of 
England."    Heathfield  v.  Chilton,  4  Burrow,  2016  (1767). 

His  Lordship  was  familiar  with  the  law  of  nations  at  an  early  period 
of  his  career,  for  the  Barbuit  Case,  in  which  he  appeared  as  counsel, 
was  decided  in  1737.  As  Solicitor  General  he  put  his  name,  some  six- 
teen years  later,  to  the  declaration  that  the  law  of  nations  is  "founded 
upon  justice,  equity,  convenience,  and  the  reason  of  the  thing,  and  con- 
firmed by  long  usage" — a  definition  quoted  with  approval  by  Mr.  Elihu 
Root  as  leading  counsel  for  the  L'nited  States  in  the  North  Atlantic 
Fisheries  dispute,  decided  by  a  tribunal  of  The  Hague  in  1910. 

Sir  \\"illiam  Blackstone  stated  as  a  matter  of  course  in  the  fourth 
book  of  his  Commentaries,  published  in  1765,  that  "the  law  of  nations 
(wherever  any  question  arises  which  is  properly  the  object  of  its  juris- 
diction") is  here  adopted  in  its  full  extent  by  the  common  law,  and  is 
held  to  be  a  part  of  the  law  of  the  land." 

Sir  William  Blackstone  was  also  familiar  with  the  law  of  nations,  be- 
cause the  year  before  this  part  of  his  Commentaries  was  published  he 
had  appeared  as  leading  counsel  for  the  plaintiff  in  the  case  of  Triquet 
v.  Bath.  Indeed,  in  the  course  of  his  opinion  Lord  ^Mansfield  took  oc- 
casion to  say  that  "Mr.  Elackstone's  principles  are  right." 

In  the  letters  of  Camillus,  published  in  1795,  !Mr.  Hamilton  main- 
tained that  an  affirmative  answer  should  be  given  to  the  question  which 
he  himself  put :  "Does  this  customary  law  of  nations,  as  established  in 
Europe,  bind  the  United  States?" 

In  behalf  of  the  affirmative  answer  he  advanced  the  following  rea- 
sons, which  he  himself  called  conclusive : 

"I.  The  United  States,  when  a  member  of  the  British  Empire,  were 
in  this  capacity  a  party  to  that  law,  and  not  having  dissented  from  it, 
when  they  became  independent,  they  are  to  be  considered  as  having 
continued  a  part}-  to  it. 


PREFACE  Xni 

"2.  The  common  law  of  England,  which  was  and  is  in  force  in  each 
of  these  states,  adopts  the  law  of  nations,  the  positive  equally  with  the 
natural,  as  a  part  of  itself." 

The  fact  that  later  judges  may  be  inclined  to  consider  Lord  Mans- 
field's statement  as  too  sweeping  cannot  detract  from  the  binding  effect 
at  the  time  of  its  delivery  of  the  unanimous  decision  of  the  court  over 
which  he  presided.  But,  however  Lord  Mansfield  may  have  fared  at 
the  hands  of  his  successors,  Hamilton's  authority  is  unshaken.  For 
did  not  Mr.  Justice  Gray  say,  only  a  few  years  ago,  in  delivering  the 
opinion  of  the  court  in  the  case  of  The  Paquete  Habana,  decided  in 
1899,  and  in  language  which  is  a  paraphrase,  if  it  cannot  be  consider- 
ed as  a  direct  quotation  from  Sir  William  Blackstone,  that  "internation- 
al law  is  a  part  of  our  law,  and  must  be  ascertained  and  administered 
by  the  courts  of  justice  of  appropriate  jurisdiction  as  often  as  ques- 
tions of  right  depending  upon  it  are  duly  presented  for  their  determina- 
tion."   175  U.  S.  677,  700.  20  Sup.  Ct.  290,  44  L.  Ed.  320  (1899). 

The  late  Sir  Henry  Maine  spoke  as  an  historian,  as  well  as  a  man  of 
a'ffairs,  when  he  said,  in  his  lectures  on  International  Law,  delivered  in 
1887,  before  the  University  of  Cambridge:  "The  statesmen  and  jurists 
of  the  United  States  do  not  regard  Internatiorial  Law  as  having  become 
binding  on  their  country  through  the  intervention  of  any  Legislature. 
They  do  not  believe  it  to  be  of  the  nature  of  immemorial  usage,  'of 
which  the  memor}^  of  man  runneth  not  to  the  contrary.'  They  look 
upon  its  rules  as  a  main  part  of  the  conditions  on  which  a  state  is  orig- 
*  inally  received  into  the  family  of  civilized  nations.  This  view,  though 
not  quite  explicitly  set  forth,  does  not  really  differ  from  that  entertained 
by  the  founders  of  International  Law,  and  it  is  practically  that  submit- 
ted to,  and  assumed  to  be  a  sufficiently  solid  basis  for  further  infer- 
ences, by  governments  and  lawyers  of  the  civilized  sovereign  communi- 
ties of  our  day.  If  they  put  it  in  another  way  it  would  probably  be  that 
the  state  which  disclaims  the  authority  of  International  Law  places  it- 
self outside  the  circle  of  civilized  nations."  International  Law,  Lon- 
don, 1888,  pp.  Z7,  38. 

It  is  to  be  hoped  that  the  views  attributed  to  the  statesmen  and  jurists 
of  the  United  States  may  ultimately  prevail  in  all  parts  of  the  world. 
In  the  editor's  opinion  they  will  because  they  should.  If  he  is  mistaken 
in  this,  he  nevertheless  prefers  to  be  generously  wrong  than  to  be  nig- 
gardly right. 

International  law  seems  to  have  stood  fairly  well  the  strain  of  war. 
It  is  no  doubt  true  that  the  belligerent  practices  of  nations  have  not 
squared  with  their  peaceful  professions.  Nevertheless  the  law  of  na- 
tions emerges  from  the  World  War  as  a  system  with  foundations  unim- 
paired, although  the  structure  bears  outward  marks  of  violence  and  un- 
sightly scars,  which  only  time  can  cover. 

The  prediction,  however,  of  the  late  William  Edward  Hall,  set  out 
at  length  in  the  preface  to  the  third  edition  of  his  Treatise  on  Interna- 


XIV  PREFACB3 

tional  Law,  dated  August  1,  1889,  exactly  twenty-five  years  to  the  day 
before  the  outbreak  of  the  World  War,  has  stood  the  test  of  what  is 
commonly  called  the  greatest  of  all  wars. 

"Probably  in  the  next  great  war,"  he  said,  "the  questions  which  have 
accumulated  during  the  last  half  century  and  more  will  all  be  given 
their  answers  at  once.  Some  hates,  moreover,  will  crave  for  satisfac- 
tion; much  envy  and  greed  will  be  at  work;  but  above  all.  and  at  the 
bottom  of  all,  there  will  be  the  hard  sense  of  necessity.  Whole  nations 
will  be  in  the  field ;  the  commerce  of  the  world  may  be  on  the'  sea  to 
win  or  lose ;  national  existences  will  be  at  stake ;  men  will  be  tempted 
to  do  anything  which  will  shorten  hostilities  and  tend  to  a  decisive  issue. 
Conduct  in  the  next  great  war  will  certainly  be  hard ;  it  is  very  doubt- 
ful if  it  will  be  scrupulous,  whether  on  the  part  of  belligerents  or  neu- 
trals; and  most  likely  the  next  war  will  be  great.  But  there  can  be 
very  little  doubt  that,  if  the  next  war  is  unscrupulously  waged,  it  also 
will  be  followed  by  a  reaction  towards  increased  stringency  of  law.  In 
a  community,  as  in  an  individual,  passionate  excess  is  followed  by  a 
reaction  of  lassitude  and  to  some  extent  of  conscience.  On  the  whole, 
the  collective  seems  to  exert  itself  in  this  way  more  surely  than  the 
individual  conscience;  arid  in  things  within  the  scope  of  international 
law,  conscience,  if  it  works  less  impulsively,  can  at  least  work  more 
freely  than  in  home  afifairs.  Continuing  temptation  ceases  with  the  war. 
At  any  rate  it  is  a  matter  of  experience  that  times  in  which  internation- 
al law  has  been  seriously  disregarded  have  been  followed  by  periods  in 
which  the  European  conscience  has  done  penance  by  putting  itself  un- 
der straiter  obligations  than  those  which  it  before  acknowledged.  There 
is  no  reason  to  suppose  that  things  will  be  otherwise  in  the  future.  I 
therefore  look  forward  with  much  misgiving  to  the  manner  in  which  the 
next  great  war  will  be  waged,  but  with  no  misgiving  at  all  as  to  the 
character  of  the  rules  which  will  be  acknowledged  ten  years  after  its 
termination,  by  comparison  with  the  rules  now  considered  to  exist." 

Whether  we  admit  it  with  open  eyes,  or  ostrich-like  bury  our  heads 
in  the  sand,  there  is  such  a  thing  as  justice,  independent  of  the  State, 
above  it  and  beyond  it,  although  the  formulation  of  its  principles  may 
change  according  to  time,  place,  and  circumstances.  This  is  not  the 
language  of  mere  theory,  or  of  idle  speculation.  It  is  apparently  the 
view  of  the  Supreme  Court  of  the  United  States.  As  late  as  1880,  that 
august  tribunal,  "speaking  of  the  universal  law  of  reason,  justice,  and 
conscience,  of  which  the  law  of  nations  is  necessarily  a  part,"  quoted 
with  approval,  the  language  of  Cicero:  "Nor  is  it  one  thing  at  Rome 
and  another  at  Athens,  one  now  and  another  in  future,  but  among  all 
nations  it  is,  and  in  all  time  will  be,  eternally  and  immutably  the  same." 

From  this  opinion,  delivered  by  Mr.  Justice  Swayne,  on  behalf  of  the 
court,  in  the  case  of  Wilson  v.  McNamee,  102  U.  S.  572,  574,  26  L.  Ed. 
234,  there  was  no  recorded  expression  of  dissent  on  the  part  of  any  of 
its  members. 


A  SELECT  LIST  OF  AUTHORITIES 


American  Journal  of  International  Law.     1907 — 

Amos,  Sheldon :    Lectures  on  International  Law.    1874. 

Bentwich,  Norman  :  Students'  Leading  Cases  and  Statutes  on  Interna- 
tional Law.    London,  1913. 

Bernard,  M.:  Four  Lectures  on  Subjects  Connected  with  Diplomacy. 
London,  1868. 

:  A  Historical  Account  of  the  Neutrality  of  Great  Britain  dur- 
ing the  American  Civil  War.    London,  1870. 

Borchard,  Edwin  M.:  The  Diplomatic  Protection  of  Citizens  Abroad; 
or,  The  Law  of  International  Claims.    New  York,  1915. 

Bouve,  Clement  L. :  A  Treatise  on  the  Laws  Governing  the  Exclusion 
and  Expulsion  of  Aliens  in  the  United  States.    Washington,  1912. 

British  and  Colonial  Prize  Cases ;  Reports  of  Prize  Cases  Decided  dur- 
ing the  Present  War,  1915 — .  E.  fc.  M.  Trehern,  Gen.  Ed.  London, 
1916— 

British  Year  Book  of  International  Law.     1920.    London. 

Butler,  Charles  Henry:  The  Treaty-Making  Power  of  the  United 
States.    2  vols.  New  York,  1902. 

Cobbett,  Pitt:  Cases  and  Opinions  on  International  Law.  2  vols.  3d 
Ed.    London,  1909-13. 

Crandall,  Samuel  B. :  Treaties,  Their  Making  and  Enforcement.  2d 
Ed.    WasTiington,  1916. 

Creasy,  Edward  Shepherd:  First  Platform  of  International  Law. 
London,  1876. 

Davis,  George  B. :  The  Elements  of  International  Law.  3d  Ed.  New 
York,  1908. 

Evans,  Lawrence  B. :  Leading  Cases  on  International  Law.  Chicago, 
1917. 

Field,  David  Dudlev:  Outlines  of  an  International  Code.  2d  Ed. 
New  York,  1876. 

Finch,  George  A. :  An  Analytical  Index  to  the  American  Journal  of 
International  Law  and  Supplements,  Vols.  1-14  (1007-1920).  and 
the  Proceedings  of  the  American  Society  of  International  Law, 
1907-1920.    Washington,  1921. 

Fish,  Carl  R.:     American  Diplomacy.     New  York.  1915. 

Foreign  Relations  of  the  United  States:    1870 — 

Foster,  John  W. :  A  Century  of  American  Diplomacy,  \776-\S76. 
Boston,  1900. 

:    American  Diplomacy  in  the  Orient.     Boston  and  New  York, 

1903. 

Foulke,  Roland  R.:    A  Treatise  on  International  Law.    2  vols.    Phila- 
delphia, 1920. 
Scott  Int. Law  (xix) 


XX  LIST   OF   AUTHORITIES 

Garner,  James  W. :     International  Law  and  the  World  War.    2  vols. 
New  York  and  London.  1920. 

Hall,  William  E. :    A  Treatise  on  the  Foreign  Powers  and  Jurisdiction 
of  the  British  Crown.    Oxford,  1894. 

:     A  Treatise  on  International  Law.     4th  Ed.     Oxford,  Lon- 
don, 1895. 

Halleck,  Henry  Wager :    International  Law ;  or,  Rules  Regulating  the 
Intercourse  of  States  in  Peace  and  War.    San  Francisco,  1861. 

Henriques,  Henry  S.  O. :    The  Law  of  Aliens  and  Naturalization,  In- 
cluding the  Text  of  the  Aliens  Act,  1905.    London,  1906. 

Hershey,  Amos  S. :    The  Essentials, of  International  Public  Law.    New 
York,  1912. 

Hinckley,  Frank  E. :     American  Consular  Jurisdiction  in  the  Orient. 
Washington,  1906. 

Hogan,  Albert  E. :    Pacific  Blockade.    Oxford,  1908. 

Holland,  Sir  Thomas  Erskine :     Studies  in  International  Law.     Ox- 
ford, 1898. 

:     The  European  Concert  in  the  Eastern  Question.     Oxford, 

1885. 

:    The  Laws  and  Customs  of  War  on  Land,  as  defined  by  the 

Hague  Convention  of  1899.    London,  1904. 

:     British  Admiralty  Manual  of  the  Law  of  Prize.     1888. 

Letters  to  "The  Times"  upon  War  and  Neutrality  (1881- 


1920)  with  Some  Commentary.    3d  Ed.    London  and  New  York, 

1921. 
Huberich,  Charles  H. :    The  Law  Relating  to  Trading  with  the  Enemy. 

New  York,  1918. 
Hurst,  Sir  C.  J.  B.  and  Bray,  F.  E. :    Russian  and  Japanese  Prize  Cases. 

2  vols.    London,  1912-13. 
Hyde,  Charles  Cheney :    International  Law  Chiefiy  as  Interpreted  and 

Applied  by  the  United  States.    2  vols.    Boston,  1922. 
Instructions  for  the  Government  of  Armies  of  the  United  States  in  the 

Field.    Prepared  by  Francis  Lieber.     1863. 
International  Law  Association,  Reports  of.     1873 — 
International  Law  Situations,  Naval  War  College,  1901 — 
Johnson,  Willis  F. :    America's  Foreign  Relations.     New  York,  1916. 
Keith,   Arthur   Berriedale :     The  Theory  of    State   Succession,   with 

Special  Reference  to  English  and  Colonial  Law.    London,  1907. 
Kent,  James :     Commentary  on  International  Law.     2d  Ed.,  by  J.  T. 

Abdy.    Cambridge  and  London,  1878. 
Latane,  J.  H. :     The  Diplomatic  Relations  of  the  United  States  and 

Spanish  America.     Baltimore,  1900. 
Lawrence,  Thomas  J. :     The  Principles  of  International  Law.     4th 

Ed.    Boston,  1910. 
Levi,  Leone :    International  Law.    London,  1887. 


LIST    OP   AUTHORITIES  XXI 

Lorimer,  James :     The  Institutes  of  the  Law  of   Nations.     2  vols. 
Edinburgh  ar  d  London,  1883-84. 

Lyman,  Theodore :    Diplomacy  of  the  United  States.    2d  Ed.    Boston, 
1828. 

Maine,  Sir  Henry:     International  Law.     London,  1888. 

Manning,  William  Oke :     Commentaries  on  the  Law  of  Nations.    2d 
Ed.,  by  Sheldon  Amos.    London,  1875. 

Maxey,  Edwin :    International  Law,  with  Illustrative  Cases.    St.  Louis, 
1906. 

Moore,  John  Bassett :    A  Treatise  on  Extradition  and  Interstate  Rendi- 
tion.   2  vols.    Boston,  1891. 

:     History   and   Digest   of   the   International  Arbitrations   to 

which  the  United  States  has  been  a  Party,  etc,     6  vols.     Wash- 
ington, 1898. 

:     Report   on   Extraterritorial   Crime   and   the   Cutting   Case. 

Washington,  1887. 

:    The  Principles  of  American  Diplomacy.    New  York,  1918. 

A  Digest  of  International  Law.    8  vols.    Washington,  1906. 


Oppenheim,  L. :     International  Law.     2  vols.     3d  Ed.,  1920-21. 
Phillimore,  Sir  Robert:     Commentaries  upon  International  Law.     3 

vols.  Philadelphia,  1854-57;  2d.  Ed.,  4  vols.,  London,  1871-74; 

3d  Ed.,  4  vols.,  London,  1879-89. 
Phillimore,  Sir  Walter  G.  F. :    Three  Centuries  of  Treaties  of  Peace 

and  their  Teaching.    London,  1917. 
Phillipson,  Coleman :    The  International  Law  and  Custom  of  Ancient 

Greece  and  Rome.    2  vols.    London,  1911. 
— i :    International  Law  and  the  Great  War,  with  Introduction  by 

Sir  John  Macdonell.    London,  1915. 

:    Termination  of  War  and  Treaties  of  Peace.    London,  1916. 

:    Effect  of  War  on  Contracts  and  on  Trading  Associations  in 


Territories  of  Belligerents.    London,  1909. 
— :    Two  Studies  in  International  Law.     London,  1908. 


Piggott,  Francis  T. :  Extradition.  A  Treatise  on  the  Law  Relating  to 
Fugitive  Offenders.    Hongkong,  1910. 

:     Nationality,  Including  Naturalization  and  English  Law  on 

the  High  Seas  and  Beyond  the  Realm.    2  pts.    London,  1907. 

Pomeroy,  John  Norton :  Lectures  on  International  Law  in  Time  of 
Peace.    Ed.  by  T.  S.  Woolsey.    Boston,  1886. 

Ralston,  Jackson  H. :  International  Arbitral  Law  and  Procedure. 
Boston,  1910. 

Satow,  Sir  Ernest  M. :  A  Guide  to  Diplomatic  Practice.  2  vols.  Lon- 
don, 1917. 

Schuyler,  Eugene :    American  Diplomacy.    New  York,  1886. 

Smith,  Sir  Frederick  Edwin :  International  Law.  1900.  5th  Ed., 
London,  rev.  and  enl.  by  Coleman  Phillipson.    London,  1918. 


XXU  LIST   OF   AUTHORITIES 

Snow,  Freeman:  Treaties  and  Topics  in  American  Diplomacy.  Bos- 
ton, 1894. 

Cases  and  Opinions  on  International  Law.    Boston,  1893. 
New  and  enl.  ed.  by  James  Brown  Scott.     St.  Paul,  1906. 
International  Law,  a  IManual  Based  upon  Lectures  Delivered 
at  the  Naval  War  College.     2d  Ed.,  bv  C.  H.  Stockton.     Wash- 
ington, 1898. 

Stockton,  Charles  H. :  A  IManual  of  International  Law  for  the  Use 
of  Naval  Officers.    Second  Revised  Edition.    x\nnapolis,  1921. 

:    Outlines  of  International  Law.     New  York,  1914. 

Stowell.  Eiler}^  C.  Intervention  in  International  Law.  Washington, 
1921. 

:    Consular  Cases  and  Opinions.    Washington,  1909. 

and  Munro,  Henry  F. :    International  Cases  ;   Arbitrations  and 

Incidents  Illustrative  of  International  Law  as  Practised  by  In- 
dependent States.     Boston  and  New  York,  1916. 

Takahashi,  Sakuyei:  Cases  on  International  Law  during  the  Chino- 
Japanese  War.     Cambridge,  1899. 

:    International  Law  Applied  to  the  Russo-Japanese  War,  with 

the  Decisions  of  the  Japanese  Prize  Courts.     English  Ed.     Lon- 
don, 1908. 

Taylor,  Hannis:  A  Treatise  on  International  Public  Law.  Chicago, 
1901. 

Trescot,  William  Henry:  The  Diplomacy  of  the  Revolution.  New 
York,  1852. 

Twiss,  Sir  Travers :  The  Law  of  Nations  Considered  as  Independent 
Political  Communities.  On  the  Rights  and  Duties  of  Nations,  in 
Time  of  Peace.    Revised  Ed.    Oxford,  1884. 

:     (Same)     On  the  Rights  and  Duties  of  Nations  in  Time  of 

War.    2d  Ed.    Oxford,  1875. 

Van  Dyck,  Edward  A. :  Reports  upon  the  Capitulations  of  the  Otto- 
man Empire  Since  the  Year  1150.     Washington    1881-82. 

Van  Dvne,  Frederick:  Citizenship  of  the  United  States.  Rochester, 
1904. 

:    A  Treatise  on  the  Law  of  Naturalization  of  the  United  States. 

Washington,  1907. 

Walker,  Thom.as  Alfred:  A  Manual  of  Public  International  Law. 
Cambridge,  1895. 

:    A  History  of  the  Law  of  Nations.    Vol.  I.    Cambridge,  1899. 

:    The  Science  of  International  Law.    London,  1893. 

\\'ard,  Robert :  Treatise  of  the  Relative  Rights  and  Duties  of  Bellig- 
erent and  Neutral  Powers  in  Maritime  Affairs.    London,  1801. 

:     Enquiry  into  the  Foundation  and  History  of  the  Law  of 

Nations  in  Europe,  from  the  Time  of  the  Greeks  and  Romans  to 
the  Age  of  Grotius.    2  vols.    Dublin,  1795. 


LIST   OF  AUTHORITIES  XXIU 

Westlake,  John:  International  Law.  2d  Ed.  2  vols.  Cambridge 
(Eng.).  1910,  1913. 

:    Chapters  on  the  Principles  of  International  Law.    Cambridge, 

1894. 

:     Collected  Papers  on  Public  International  Law,  edited  by  L. 

Oppenheim.    Cambridge,  1914. 

Wharton,  Francis:  A  Digest  of  the  International  Law  of  the  United 
States.    2d  Ed.  3  vols.    Washington,  1887. 

Wheaton,  Henry:  Elements  of  International  Law,  with  a  Sketch  of 
the  History  of  the  Science.  London,  1836;  W.  B.  Lawrence's 
Second  Annotated  Edition,  Boston,  1863;  8th  Ed.,  edited  with 
notes,  by  R.  H.  Dana,  Jr.,  Boston,  1866. 

:    History  of  the  Law  of  Nations  in  Europe  and  America,  from 

the  Earliest  Times  to  the  Treaty  of  Washington,  1842.  New 
York,  1845. 

Wildman,  Richard :  Institutes  of  International  Law.  2  vols.  London, 
1849-50. 

:    Plain  Directions  to  Naval  Officers  as  to  the  Law  of  Search, 

Capture,  and  Prize.    London,  1854. 

Wilson,  George  Grafton :  Handbook  of  International  Law.  St.  Paul, 
1910. 

and  Tucker,  George  Fox:    International  Law.    6th  Ed.    New 

York  and  Boston,  1915. 

Woolsey,  Theodore  Dwight :  Introduction  to  the  Study  of  Internation- 
al Law.  Sixth  Edition,  revised  and  enlarged  by  Theodore  Salis- 
bury Woolsey.    New  York,  1891. 

Woolsey,  Theodore  S. :  America's  Foreign  PoHcy;  Essays  and  Ad- 
dresses.   New  York,  1898. 

NOTE 

It  was  felt  In  many  quarters  that  the  date  of  Germany's  declaration  of 
war  against  Russia,  August  1,  1914,  would  end  an  old  and  begin  a  new  era, 
and  that  international  law  would  require  to  be  built  up  as  from  that  date. 
With  this  in  view  the  Carnegie  Endowment  for  International  Peace  arranged 
to  have  a  statement  made  of  the  laws  of  war  as  then  existing,  and  the  ma- 
terial was  printed  in-  four  volumes,  by  the  government,  for  eventual  use  of 
the  Conference  at  Paris-  The  titles  and  authors  are  as  follows: 

Joseph  R.  Baker  and  Henry  G.  Crocker:  The  Laws  of  Land  Warfare  Con- 
cerning the  Rights  and  Duties  of  Belligerents  as  Existing  on  August  1. 
1914.     Washington,  Government  Printing  Office.  1919. 

Harold  H.  Martin  and  Joseph  R.  Baker:  Laws  of  Maritime  Warfare  Affect- 
ing Rights  and  Duties  of  Belligerents  as  Existing  on  August  1,  1914. 
Washington,  1918. 

[Joseph  R.  Baker]  :  The  Laws  of  Neutrality  as  Existing  on  August  1,  1914. 
Washington,  1918. 

Joseph  R.  Baker  and  Louis  W.  McKernan :  Selected  Topics  Connected  with 
the  Laws  of  Warfare  as  of  August  1,  1914.    Washington,  1919. 

These  volumes  furnish  a  standard  by  which  to  test  the  actions  of  the  bellig- 
erents in  the  World  War  of  1914-18- 


# 


TABLE  OF  CONTENTS 


INTRODUCTION 

Section  Page 

y/^.     The  Nature  and  Extent  of  International  Law 1 

I.     British    Cases 1 

II.     American    Cases 9 

2,.     Comity    17 

PART  I 
Rights  and  Duties  of  Nations  in  Time  of  Peace 

chapter  i 

States 

^  1.     Nature   and   Kinds 19 

1^/2.     Recognition  of  States  and  of  Governments 57 

3.  Succession  of  States 74 

I.     Effect  of  Public  Rights 74 

II.     Effect  of  Private  Rights  of  Property 9() 

III.     Effect  on   Law H)9 

4.  Responsibility    116 

CHAPTER  II 

NATIONALirr 

1.  Allegiance    1-^4 

2.  Naturalization l"^'? 

3.  Expatriation 154 

CHAPTER  III 

Territory  of  States 

1.  Modes  of  Acquisition 17.3 

I.     Discovery   and    Occupation 173 

II.     Conquest  and  Cession 1^>1 

III.  Accretion    l^-^ 

2.  Boundaries    -"^ 

I,     Rivers    -*'0 

II.     Sounds,    Straits,   and   Lakes -17 

IIL     Bays    --9 

IV.  Marginal    Seas — Three-Mile   Limit 24.3 

V.     Prescription     2.52 

3.  Servitudes    ^55 

CHAPTER  IV 
Jurisdiction  of  States 

1 .  In    Goneral 2(>.5 

2.  Immunity   from    .Turisdiction 27.S 

I.     States  and  Chiefs  of  State 278 

Scott  Int. Law  (xxv) 


XXVI  TABLE   OF   CONTENTS 

Section  Page 

II.     Diplomatic   Agents 286 

III.  Protection  to  Dii)lomatic   Agents 295 

IV.  Public  Ves.sels  and  Military  Forces 300 

V.     Consuls  May  be  Exempt  by  Treaty,  Not  by  the  Law  of  Na- 
tions     311 

VI.     Right  of  Asylum 323 

(A)  In  Embassy  or  l^egation 323 

(B)  On  Public  Vessel 326 

(C)  On   Mercliant   Vessel 332 

3.  Extraterritorial    Jurisdiction 337 

I.     In  Case  of  Piracy 337 

II.    Merchant    Vessels 349 

III.  Municipal  Seizure  Beyond  the  Three-Mile  Limit 361 

IV.  Jurisdiction  of  Offenses  Committed  Abroad 371 

V.     Acts  of  State 394 

4.  Extradition    404 

CHAPTER  V 

Treaties 

1.  Definition  of  Treaty  and  Extent  of  Treaty-Making  Power 429 

2.  Time  of  Going  into  Effect 438 

3.  Interpretation    of   Treaties 446 

4.  Rlelation  of  Treaties 453 

1.     To  States,  Parties  Thereto 453 

11.     To  the  Statutes  of  States,  Parties  Thereto 458 

111.     To  the  Judiciary  of  the  States,  Parties  Thereto 463 

5.  Extinction    468 

CHAPTER  VI 
Pacific  Settlement  of  Ini'ernational  Disputes 

1.  Maintenance  of  General  Peace 474 

2.  Good  Offices  and  Mediation .' 474 

3.  International  Commissions  of  Inquiry 475 

4.  International    Arbitration 476 


PART  II 
Compulsive  Measures  of  Redress  in  Time  oe  Peace 

CHAPTER  I 
NONINTEBCOTJESE    486 

CHAPTER  II 

Embargo 

1.  Nonhostile    493 

2.  Hostile     497 

CHAPTER  III 
retaliation    499 

CHAPTER  IV 
Display   of  Force 


lABLE    OP    CONTENTS  XXVll 


CHAPTER  V 

Section  Page 

Pacific    Blockade 510 


CHAPTER  VI 
Reprisals 514 


PART  III 

Rights  and  Duties  of  Nations  in  Time  of  War 

chapter  i 

Commencement  and  Definition  of  Wab 522 

CHAPTER  II 
Parties  to  a  Wab 

1.  Belligerents ;     Insurgents 537 

2.  Recognition  of  Belligerency — of  Insurgency 542 

CHAPTER  III 
Enemt  Pbopeety  in  Teebitoby  of  Other  Belli gebent 549 

CHAPTER  IV 
Alien  Enemies  Before  Courts  of  Justice 566 

CHAPTER  V 
Agents  in  Enemy  Territory. 5S0 

CHAPTER  VI 
Private  Rights  and  Contracts 5b5 

CHAPTER    VII 

Intercourse  Between  Belligerents 

1.  General  Prohibition •• 622 

2.  Permissible    Intercourse t>i!5 

CHAPTER  VIII 
Domicile   • 6'^*^ 

CHAPTER  IX 
Occupation — conquest — Martial   Law 6U4 


CHAPTER  X 


Angary 


7^3 


CHAPTER  XI 
Capture  at  Sea — Exemption  from  Capture — Recapture — Rescue.  .  744 


XXVlll  TABLE    OF    CONTENTS 


CHAPTER  XII 

Desteuction  of  Peizk 
Section  Page 

1.  Enemy   * 7S0 

2.  Neutral    793 

CHAPTER  XIII 
Retaliation    8U4 

CHAPTER  XIV 
Nationality  of  Peopeety  in  and  Dueing  Transit 811 

CHAPTER  XV 

Beixigebent  Use  of  Neutral  Territory 

1.  Base  of  Hostile  Operations 823 

2.  Capture  in  Neutral  Waters 848 

3.  Abuse  of  Hospitality 858 

CHAPTER  XVI 
Assistance  by  Neutrals  to  Belligerents 

1.  Unneutral    Service 865 

2.  Relacious  with  Insurgents 892 

CHAPTER  XVII 
Nexttbal  Teade  with  Belligeeents 

1.  General    Principle 912 

2.  Rule  of  1756 926 

3.  Blockade 932 

4.  Contraband    955 

5.  Destination    982 

I.     Continuous  Voyage 982 

II.     Ultimate  Destination 998 

6.  Visit  and  Search 1003 

7.  Employment  of   Armed  Vessels 1012 

8.  Transfer   of   Vessels 1022 

■CHAPTER  XVIII 

Adjudication  of  Prize 

1.  Condemnation    1036 

2.  Prize  Courts — Authority  and  Jurisdiction 1044 

3.  Effect  of  Prize  Decisions 1069 

4.  Freight — Liens    1083 

CHAPTER  XIX 
Termination  of  Wab 1097 

APPENDIX  I 

The  Covenant  of  the  League  op  Nations 1109 

Statute  foe  the  Permanent  Court  of  International  Justice  Pro- 
vided fob  by  Article  14  of  the  Covenant  of  the  League  of  Na- 
tions   1120 


TABLE   OF   CONTENTS  Xxix 


APPENDIX  II 
Section  Page 

Declaration  of  Paris llc;2 

Declaration    of    St.    Petersburg ll'oJ. 

Declaration  Concerning  Asphyxiating  Gases 1133 

Declaration  Concerning  Expanding  Bullets 1133 

Geneva  Convention  of  1906  for  the  Amelioration  of  the  Condition 

of  the  Wounded  in  Armies  in  the  P'ield 1133 

Convention  Relative  to  the  Opening  of  Hostilities 113S 

Convention  Respecting  the  Laws  and  Customs  of  War  on  Land 1138 

Annex  to  the  Convention — Regulations  Respecting  the   Laws  and 

Customs  of  War  on  Land 1139 

Convention   RIespecting  the  Rights  and  Duties  of  Neutral  Powers 

AND  Persons  in  Case  of  War  on  Land 1146 

Convention  Relating  to  the  Status  of  Enemy  Merchant  Ships  at  the 

Outbreak  of  Hostilities 1149 

Convention  Relating  to  the  Conversion  of  Merchant  Ships  into  War 

Ships    1150 

Convention  Relative  to  the  Laying  of  Automatic  Submarine  Con- 
tact Mines 1150 

Convention  Concerning  Bombardment  by  Naval  Forces  in  Time  of 

War    1151 

Contention  for  the  Adaptation  to  Maritime  Warfare  of  the  Princi- 
ples OF  the  Geneva  Convention 1153 

Convention   Relative  to   Certain   Restrictions  with  Regard  to  the 

Exercise  of  the  Right  of  Capittre  in  Naval  War 1157 

Convention  Concerning  the  Rights  and  Duties  of  Neutral  Powers 

IN  Naval  War 1158 

Declaration  Prohibiting  the  Discharge  of  Projectiles  and  Explo- 
sives from  Balloons » 1162 

Declaration  of  London 1162 

Declaration  of  Washington  in  Relation  to  the  Use  of  Submarines 

and  Noxious  Gases  in  Warfare 1172 

Washington  Resolution  for  a  Commission  of  Jurists  to  Consider 
Amendment  of  Laws  of  War 1174 

APPENDIX  III 

No.  1 — Order  in  Council  Framing  Reprisals  for  Restricting  Further 
the  Commerce  of  Germany 1175 

No.  2 — Order  in  Council  Defining  the  Expressions  "ENE^ry  Destina- 
tion," "Enemy  Origin,"  and  "Enemy  Property"  in  Articles  III  and 
IV  of  the  Order  in  Council  of  March  11,  1915 1177 

No.  3 — Order  in  Council  Supplemental  to  the  Orders  in  Council  of 
March  11,  1915,  and  January  10,  1917,  for  Preventing  Commodities 
OF  any  Kind  from  Reaching,  or  Leaving,  Enemy  Countries 1179 


TABLE    OF  CASES 


Cases  printed  in  ordinary  type  are  the  cases  reported  as  the  text  of  this 
volume.  Cases  printed  in  italics  are  found  in  the  footnotes  and  in  text ;  they 
are  included  in  this  table  either  because  they  are  stated  and  discussed,  or 
because  they  are  printed  in  other  casebooks  and  have  become  known  to  many 
teachers  and  students,  who  will  thus  be  enabled  to  use  this  tablu  as  a  supple- 
mentary index. 


Page 
Abhij,  The 815 

Aclia  la,  The 565 

Acteon,  The 780 

Active,  The 525 

Adams  v.  Akerlttnd 452 

Advocate-Gene?-al  v.  Dossee 115 

Agu:.do  V.  City  of  Manila S6 

4iJ?  La  Chapelle-Maastricht  R.  Co. 

V.  Theuns 264 

Aksionairnoye  Obschestvo 61 

Alabama  Claims,  The 842 

Alexandi-ia,  The 885 

Alexandra  Alvarez,  In  re 885 

Alibert,  Case  of 170 

AUeganean,  The 232 

AUetVs  Vill,  Case  of 665 

Alsberry  v.  Hawkins 154 

Alvares,  In  re 885 


Page 
Atlas,  The 931 

Attorney  General  of  Southern  Ni- 
geria V.  John  Holt  &  Co 197 

Aubrey,  In  re 386,  500 

Rajraley.  The  William 690 

Bain  v.  Speedwell,  The 1100 

Baiz,  In  re 314 

Baldy  v.  Hunter 48 

Baltica,  The 1023 

Balto,  The 988 

Banks  v.  Ogden 200 

Barbuit,  Case  of 311 

Barmbek,  The 1005 

Barrett  v.  U.  S 537 

Beers  v.  Arkansas 285 

Behring  Sea  Arbitration 248 


Alvarez  y  Sanchez  v.  U.  S 109 i Belgenland,  The 360 

Amhiorix,  The 851 1  ^ellorve,  La 1098 

Ambrose  Light,  The 544  Benito  Estenger,  The 1029 

Amelia,  The 769   Bentzon  v.  Boyle 6S0 

American  Ins.  Co.  v.  Canter 187 1  Berlin,  The 762 

Amistad  de  Rues,  La 827  i  Betsey,  The 208,  932 


Anatolia,  The 855 

Andrew    Artemonowitz    Mattucof, 

Case  of 286 

Anichab,  The 1063 

Anna,  The 195,  848 

Anna  Catharina,  The..... 813 

Anne,  The 851 

Ann  Green,  The 1028 

Ann  Green,  The 813 


Bieber  &  Co.  v.  Rio  Tinto  Co 597 

Blaauwpot  v.  Da  Costa 514 

Blankard  v.  Galdy 109 

Blonde,  The 566 

Boedes  Lust,  The 497 

Boffolo,  Case  of 146 

Bogados,  The 855 

Bolivar,    The 1061 

Bonna,  The 987 


Anonymous    110  Botiller  v.  Dominguez 462 

Antelope,  The 9  Boussmaker,  Ex  parte 540 

Anthon  v.  Ft^her 645  i  Boyd  v.  Tluiycr 148 

Antoine  v.  Morshead 647  Brandon  v.  Curling 589 

Antonia  Johanna,  The 10861  British  Consul  v.  The  Mermaid.  .1021 

Appam,  The 858  I  Broun  v.  Duchesne 268 

Archibald  Hamilton  &  Co.  v.  Ea-         1  Brown  v.  U.  S 555 

ton 45S\Broiin  v.  U.  S 116,  541 

Arena,   The 803  Brussels,  The 777 

Ariel,  The 932  |Buron  v.  Penman 394 

Atalanta,    The SGI '  Busk  v.  Bell 643 

Atalanta,  The 354,  102r  iButtenuth  v.  St.  Louis  Bridge  Co.  206 

Scott  Int.Law  (xxxi) 


XXX 11 


TABLE   OF  CASES 


Page 

CaldweU  v.   Rolfe 265 

Caldwell  v.  Vanvlissengen 265 

Caldwell  v.  Verbeck 265 

Campbell  v.  Hall 187 

Carlos  F.  Roses,  The 10S7 

Carlotta,  The 774 

Carrington  v.  Merchants'  Ins.  .Co.  975 

Castioni.  In  re '. . .  420 

Certain  Craft  Captured  on  the  Vic- 

'    taria  Xijanza,  Matter  of.  .  .22S,  1051 

Chamberlain  v.  Chamberlain 478 

Chamberlain's  Settlement,  In  re..  478 

Chappell  V.  Jar  dine 116 

Charkieh,   The 29 

Charlotte.  The 568 

Charlton  v.  Kelly 415 

Charming  Betsy,  The 11 

Charmintj  yancy.  The 645 

Chavasse.  Ex  parte 912 

Cheref,  The 792 

Cherokee  Nation  v.  State  of  Geor- 
gia        39 

Chesnelong,  Appeal  of 52 

Chinese  Exclusion  Case 9S 

Church  V.  Hubbart 361 

C.  H.  White,  The 371 

Circassian.   The 815 

City  of  Berne  v.  Bank  of  England     57 
City  of  New  Orleans  v.  Abbagnato  116 

Clan  Grant,  The .• 664 

Clarke  v.  Morey 579 

Cleveland  v.  Walvart 752 

Coffee  V.  Groover 116 

Commercen,  The 973 

Commodore  Stewart,  Case  of 1039 

Com.  V.  Blanding 375 

Com.  V.  Chapman Ill 

Commonwealth  of  Virginia  v.  State 

of  West  Virginia 81 

Commonicealth     of     Virginia     v. 

State  of  West  Virginia 85 

Comte  de  Synet  de  Xacyer,  Case  of  769 

Conn  V.  Penn 580 

Conn.  V.  Penn 5S1 

Constitution.  The 310 

Consul  Corfit:on.  The 5,  1000 

Contzen  v.  V.  S..  .■ 148 

Convention  for  the  Pacific  Settle- 
ment of  International  Disputes 

474,  475,  476 

Cooley  V.  Golden 214 

Cooper,  In  re 432 

Coppell  V.  Hall 322,  &43 

Cornu,  V.  Blackburne 645 

Crapo  V.  Kelly 355,  887 

Crawford  v.  William  Penn,  The. .   650 
Craicford  v.  William  Penn,  The.  .  653 

Creole,  The 273 

Creole,  The 277 

Curleic,  The 531 

Gushing  v.  U.  S 1079 

Cushing  v.  U.  S 520 

Cutting,  Case  of 387  1 


Page 

Dacia,  The 1033 

Dacia,  The 1035 

Dagleish  v.  Hodgson 1076 

Daifjie,   The 649 

Daksa,  The 1036 

Danekebaar  Africaan,  The 813 

Danous,    The 664 

Darby  v.  The  Erstern 880 

Davis  V.  Police  Jury 445 

De  Bilboa 817 

De  Bode  v.  Reg 171 

De   Haber  v.  Queen  of  Portugal, 

The 278 

De  Jager  v.  Attorney-General  of 

Natal   136 

Delagoa  Bay,  In  re 173 

De  Montellano  (Duke)  v.  Christin  290 

Derfflinger,  The 665 

De  Wutz  V.  Hendricks 892 

Diana,   The 816 

Dogger  Bank  Case 130 

Donaldson  v.  Thomp.son 695 

Don  Pacihc-o  v.  Greece 510 

Dos  Hermanos,  The 686 

Doss  V.  Secretary  of  State  for  In- 
dia      285 

Duke  De  Montellano  v.  Christin . .  290 

Dunham  v.   Lamphere 237 

Dupont  V.   Pichon 291 

DUsseldorf,  The 850 

Dynamit     Actien-Gesellschaft     v. 
Rio  Tinto  Co 597 


Earl  Russell,  Trial  of 371 

Edna,    The 885,  102S 

Eemland  v.  Gaasterland 1066 

Egypt  V.  Deut'iches  Kohlen  Depot 

Gesellschaft 565 

Elbe,  The 1107 

Eliza  Ann,  The 438,  523 

El  Triunfo  Co.,  Case  of 123 

Emanuel,    The 926 

Endeavor,   The 1008 

Erstern,    The 880 

Ertel  Bleber  &  Co.  v.  Rio  Tinto 

Go 597 

Esposito  v.  Boicden 602 

Exchange,  The,  v.  McFaddon 300 

Ezeta,  In  re 426 

Faber,  Case  of 201 

Falk,  The.  and  Other  Ships 750 

Fama,   The 181 

Fanny,  The 1012 

Fasbender  v.  Attorney  General. .  480 

Federico,  The 886 

Felicity,  The 783 

Fenix,    The 1095 

Ferdinand,  In  re 550 

Fiott  V.   Com 98 

First  Nat.  Bank  v.  Kinner 116 

Fitzsimmons  v.Neicportlns.Co...  93i 


TABLE   OP   CASES 


XXXlll 


Page 

Flad  Oyen,  The 1070 

Flamenco,   The 690 

Fleming  v.  Page 708 

Flindt  V.  Scott 642 

Foltina,    The 183 

Forbes  v.  Cochrane. 326 

Ford,  The  Mary 775 

Foreiqn  Relations  of  U.  S 371 

Fortuna,  The 561,  938 

Foster   v.   Neilson 429 

Fourteen  Diamond  Rings  v.  U.  S.  192 
Foxoraft  d  Galloway  v.  JVagle. . . .  603 

Frances  and  Eliza,  The 500 

Franciska,    The 944 

Frau  Houwina,  The 995 

Freeland  v.  WaVoer 643 

Friendship,  The 867 

Furtado  v.  Rogers : 585 

Oaasterland,   The 1066 

Gates  V.  Goodloe 693 

Gauntlet,  The , 873 

General  Armstrong,  The.. 853 

Geof roy  v.  Riiggs 446 

Geofroy  v.  Riggs 437 

Georgin,  The 1022 

Gerasimo,    The 696 

Germnnia,  The 565 

GertrugdU;  The 498 

Gibbons  v,  Livingston 516 

Glass  V.  Betsey,  The 268 

Glitra,  The 798 


Glover  v.  William,  The 75i'-Ionian  Ships.  The 21 "" 


Goede  Hoop,  The 635 

Goodrich  &  De  Forest  v.  Gordon . .  646 

Gra/noe,    The 852 

Gray  v.    U.    S 517 

Gray  Jacket,  The. . .      693 

Grazebrook.  In  re. . ;  .* 912 

Great  Britain  v.  Portugal 173 

Great  Britain  v.  U.   S 248 

Great  Britain,  on  behalf  of  Bar- 
rett, V.   U.   S 537 

Great  Britain,  on  behalf  of  Don 

Pacifico,  V.  Greece 510 

Green,  The  Ann 1028 

Green,  The  Ann 813 

Griswold  v.  Waddington 604 

Gnmbe's  Case 707 

Gustave  v.  Gaultier 49 


Page 

Heathfield  v.  Chilton 4 

Heina,  The 882 

Helen,   The 916 

Helena,  The 20 

Henrio,    The 1098 

Hijo  V.  U.  S 445 

Hijo  V.  V.  S 446 

Eipsang,  The IOCS 

Hoare  v.  Allen 602 

Hoffnung,  The 938 

Holford's  Ex'rs,  In  re 77 

Hoop,   The 622 

Hoop,    The 645 

Hoop,  The  Goede 635 

Hooper  v.  U.  S 470 

Hooper  v.   U.  S 516,  521, 

531,  755,  1021,  1061,  10S7 

Hopner  v.  Appleby 776 

Hudson  and  Smith  v.  Guestier. . .  365 
Hugh  Stevenson  &  Sons  v.  Aktien- 
gesellschaft     fUr    Cartonnagen- 

Industiie   594 

Hughes  and  Cornelius 1069 

Huldah,  The 10-36 

Hypatia,  The 666 

Immanuel.   The 928 

Indian  Chief,  The 659 

Indian  Prince,  The 803  . 

Industria,  The 276 

Industrie,  The S90 

International,  The 876 


lotDa  V.  Illi)iois 217 

Iro-Marn.   The 888 

Itata,  The 367,  901 


The. 


432 

137 


Haabet,    The 958 

Hakan,  The 968 

Hamborn,    The 669 

Hamilton  &  Co.  v.  Eaton 453 

Handly's  Lessee  v.  Anthony 200 

Hanger  v.  Abbott 613 

Harcourt  v.  Gailbird 442 

Harrold  v.  Arrin()ton 432 

Hardy.    Le 686 

Hart,  The  Stephen 988 

Haucnstein  v.    Lynham 45S 

Haver  v.  Yaker 443 

Heathfield  v.  Chilton 288  I  King,  The,  v.  Ship  North,  The 

Scott  Int.Law — c 


James  G.  Sivan 
Janis  V.  U.  S..  . 
Janson     v.     Driefontein     Consol. 

Mines    589 

Jecker  v.  Montgomery 1068 

Jenkins  (Sir  Leoline)  Opinion  of. .  337 

Jcunc  Eugenic.  La 13 

Johanna  Maria,  The 943 

.John.   The 1102 

Johnson  v.   Mcintosh 175 

.Johnstone  v.  Pedlar • 482 

Johnstone  v.  Pedlar 576 

Jones  V.  Garcia.  Del  Rio 57 

Jones  V.  Meh  an 4.~)2 

Jones  V.  r.  S 1^0 

Joseph,  The '. 692 

J.  Rihas  e  Hi1o  v.  V.  S 445 

J.  Rihas  y  Hijo  v.  U.  S 446 

Jurgan  v.   Loga  u 955 


cith  V.   Clark 48 

ennett  v.  Chambers 893 

Ker  &  Co.  v.  Conden 197 

Kershaw  v.  Kelsev 654 

King.  The  William 493 

Kinrr,  The,  v.  Lunch 135 

371 


xxxiv 


TABLE   OF    GASES 


Knight  Commander,  The 

Kreglinger  v.  S.'  Samuel  &  Roseu- 

feld   

Kronprinsessan  Margareta,  The. . 
Kythnos,   The , 

La  Amistad  de  Rues 

La   Bellone 

Labuan,  The 

La  Jeune  Eiw&nie 

Lamington,   The 

La  JVinfa 

La,  Nynipihe 

La  Petit e-Renommee 

La  Thetis 

Laurent,  Case  of 

Le    Hardy 

Leif  Gundersen,  The 

Leitensdorfer  f>.  Wehb 

Le  Louis 

Leonhardt,  The  Marie 

Leonor,   The 

Leonora,  The 

Le  Porcher 

Leucade,  The 

Liesbet  Van  Den  Toll,  The 

Lilla,   The 

Lindo  V.  Rodney 

TAndn  v.  Rodney 498, 

Lisette,  The 

■Tiittle  V.  P.arreme 

Little  V.   Barreme 

Lloyd  V.  Bowring 

Lola.  The 

Louis,  Le 

Louisiana,   The 987, 

Lovisiclna  v.  Mississippi 

Ludwig.   The 

Lupus,  The 

Luria  v.  U.  S 

Lusitania,   The 

Lust,  The  Boedes 

Luther  v.  James  Sagor  &  Co 

Lutzow,  The 

Macdonald,  Case  of 

McDonald  v.  Mallory 

Mclh-aine  v.  Coxe's  Lessee 

Mackenzie *v.  Hare 

McLood.  Claim  of 

Maclead  v.  Attorney  General.... 

MacLeod  v.  U.   S 

McVeigh  v.  U.  S 

Madison,    The 

Magellan  Pirates,  The 

Mahler  v.  Norwich  &  N.  Y.  Transp. 

Co 

Maisonnnire  v.  Keating 

Manchester  v.   Massachusetts. . . . 

Manhasset,  The 

Manhattan  Life  Ins.  Co.  v.  Buck. . 

Manouha.  Case  of 

Manuel  Espaliu,  The 

Marais,  Ex  parte 


Page  1 
793 

570 
979 

855 

I 

827  i 

1098 

741 

13 

357 

468 

1098 

1098 

1098 

€61 

686 

888 

101 

338 

565 

500 

804 

1098 

,  783 

665 

542 

1044 

.  566 

816 

752 

701 

,  440 

12 

338 

1062 

217 

791 

1003. 

148  1 

784. 

497: 

61 

690 

134 

356,, 

442 

161  j 

398! 

373; 

717 

576 

871 

345 

.  217 
647 
238 
16 
617 
888 

1001 
729 


Pago 
Marais    v.    General    Officer    Com- 
manding the  Lines  of  Communi- 
cation and  the  Attorney  General 

of  the  Colony 729 

Maria,    Thw 1003 

Maria,  The 766,  1098 

Maria,  The  Jotanna 943 

Marianna  Flora,  The 1009 

Marie  LeonJiardt,  The 565 

Marquis  De  Somerueles,  The.  ....   760 

Marshall  v.  Miirgatroyd 355 

Mary  Ford,  The 775 

Mather  v.  Cunninghfnn 665 

Matthews  v.  McStea 613,  643 

Mattueof,  Case  of 286 

Mentor,  The 1097 

Mercuriiis,   The 1036 

Mermaid,  The 1021 

Merten's  Patents,  In  re 570 

Meteor,   The 828 

Meunier,  In  re 427 

Midsland,   The 1083 

Mighell  V.  Sultan  of  Johore 280 

Milligan,   Ex  parte 724 

Minerva,    The 4 

Miramichi,  The 819 

Missouri  v.  Kentucky 217 

Montara,    The 928 

Montoya  v.  U.  S 538 

Montoya  v.  U.  8 20 

Mormon  Church  v.  U.  8 189 

Mortensen  v.  Peters 247 

Municipality  of  Ponce  r>.   Roman 
Catholic    Apostolic    Church    in 

Porto  Rico 56 

Murray  v.  Charming  Betsy 171 

Musurus  Bey  v.  Gadban 293 

Xancy,  The 941 

Nancy,  The 1008 

Nathan  v.  Virginia 285 

Nayade,  The 522 

N eagle.  In  re 172 

Neal  Dow  v.  Johnson 304 

Nebraska  v.  loira 217 

Xeptunus.  The .  935 

Nereide,  The 499,  1014 

Neustra    Senora   de  Los   Dolores, 

The 1099 

New    Chile    Gold    Mvnina    Co.    v. 

Blanco    295 

New  Orleans  v.   New  York  S.   S. 

Co 709 

New  Orleans  v.  V.  8 200 

Netv  York  Life  Ins.  Co.  v.  Davis.  .  620 
New  York  Life  Ins.  Co.  v.  Seyms. .  617 
New  York   Life  Ins.  Co.  v.   Stat- 

ham    617 

NichQls  V.  U.  8 286 

Ninfa.  La 468 

Nitchevcoff,  Appeal  of 325 

North  Sea  or  Dogger  Bank  Case  130 

Novion  V.   Hallett '.  .  1051 

Scott  Int.Law 


TABLE    OF   CASES 


XXXV 


Page 

Noydt  Gerlaoht,  The 1022 

Nuestra  Serlwa   de  EegU,  The...VdA\ 
Nymphe,  La. . ..,. ~ 10^8 

Oalces  V.  V.  8 1037 

Ocean,  The 689,  936 

Oddy  V.  Bovill 1075 

Oetjen  v.  Central  Leather  Co 70 

Olinde  Rodrigues,  The 954 

One    Hundred    and.    Ninety-Four 

Shaivls,  In  re 

Ophelia,  The 

O'Reilly  de  Catnara  v.  Uroolce 

Orel,  The 

Orozembo,  The 

Orteric.    The 

Osaka  Shosen  Kaisha,  The 962 

Ostsee,  The 744 


359 

772 
109 
770 
S65 
816 


310 

4S6 

645 

2 

925 


Packet  de  Bilboa,  The 817 

Paklat,  The '5'6'7 

Panaghia  Rhomba,  The 9.>1 

Panama,  The '^^^ 

Panama,  The 524,  1021 

Panariellos,  The 629 

Paquete  Habana,  The 12,  17 

Paquete  Hahana,  The '5'JO 

Parana,    The 5)79 

Parchim,   The 1<^62 

Parkinson  v.  Potter. 290 

Parlement  Beige,  The 

Patriot,  The 

Patrixent,   The 

Peach  V.  Bath 

Pearson  v.   Allis-Ohahners   Co 

Pearson  v.  Parson 920 

Peggy,  The 465 

P^gon.  The 1^21 

Penhallow  v.  Doane's  Adnv'rs 39 

Penn,  The  William 650 

Penn,  The  William 653 

People  V.  Gerke  &  Clark 433 

Pericles,   The -^^^ 

Perle,   The ^^^ 

Perrin  v.  U.  S.... 504 

Peterhoff,  The 980 

Petite-Renommce,  La 1098 

Pigou,    The 1021 

Pitt,  The -^'^'^ 

Pontoporos,   The '^'^^ 

Porcher,  La 109S 

Porter  v.  Freudenberg 570 

Portland,    The 662 

Potts  V.  Bell 626 

President.    The 664 

Pri/tis  der  KederUindcv,  The.  .975,  1096 

PriJce  Cases,  The 531,  (>S3 

Prometheus.   The 962 

Protector,   The 1100 


Page 

Kafjenel,   Goods  of 680 

(Rannveig,    The 998 

Rapid,  Th-^ • 631 

Rattray  v.  H olden 441 

Regina  v.  Anderson 351 

Regina  v.  Lesley 349 

Rendsborg,    The 931 

Republic  of  Honduras  v.  Soto 20 

Republic  of  Mexico  v.  De  Aran- 

gois   40 

Respublica  v.  De  Longchamps  295,  404 

Rex  V.  Vaughan 187 

Kicord  V.  Bettenham. 644 

Rodrigues,  In  re 145 

Rodrigues.    The   Olinde 954 

Roland,    The 1084 

Rolla,   The 943 

Roman  Catholic  Apostolic  Church 

V.  People  in  Porto  Rdco 101 

Rose,  The 1008 

Roses,  The  Carlos  F lOST 

Ross,  In  re 379 

Russell,  Trial  of 371 

Russian    Socialist    Federated    Re 

public  V.  Oibrario 


73    — 


Quang-Nam,  The . . 
Queen,  The,  v.  Keyi 


891 
243 


St.  Andre,  The 823 

8t.  Clair  County  v.  Lovingston.. .  200 

Sally,  The SH 

8aUy,  The 492 

Sally   Magee.  The 821 

Salvador,    The 82:^ 

8an  Jos6  Indiiino,  The 822 

Santa  Anna,  The 694 

Santa  Cruz,  The T72 

Santissima  Trinidad,  The 823 

Sapphire,    The 68 

Sea  Lion,  The 643 

Sekgome,  Ex  parte 28 

Senimes  v.  Hartford  Ins.  Co 621 

Simla,   The -" '''pO 

Sir  Leoline  Jenkins,  Opinion  of.  ..  337 

Slaudhter  House  Cases, 171 

Small's  Adm'r  v.  Lumpkin''s  r:x'x  584 
Small's  Adm'r  v.  Lumpkin's  Fx'x  622 
Society  for  Propogation  of  Gospel 

in    Foreign    Parts   v.   Town   of 

New  Haven 93,  469 

Solicitors'  Journal  and  Reporter, 

The   ^'^ 

Sophie,  The 199S 

Sotclo,  Case  of 336 

South   American    S.    S.   Co.   v.   U. 

g .367,  855 

Sparcnburah    v.    linnmitiine 567 

Speedwell,   The 1160 

Splendid,  The 740 

State  v.  Knight •"•> 

State  v.  Pat  terson 413 

State  of  Texas  v>  White 34 

Stephen  Hart.  The 988 

Stepney  Flection  Petition,  In  re..  l-;'6 
Stetson  V.  U.  S 2^32 


XXXVl 


TABLE   OF  CASES 


Page 
Stevenson  &  Sons  v.  Aktiengesell- 
scliaft  Fiir   Cartonnageu-Indus- 

trie  594 

Stewart,  Case  of 1039 

Stigstad,  The 805 

Stoeck  V.  Public  Trustee 167 

Stovall  V.  'V.  S 536 

Strathearn  S.  S.  Co.  v.  Dillon 270 

Sutton  V.  Sutton 468 

Svithiod.    The 867 

Swan,  The  James  G 432 

Sydland,  The 1062 

Tahbs  V.   Bendelack 686 

Tartar  Chemical  Co.  v.  U.  8 73 

Taylor  v.  Barclay 59 

Taylor  v.  Morton 462 

Terlinden  v.  Ames 473 

Teutonia,  The 524 

Texas  Bonds 77 

Thetis,  La 1098 

Thirtv    Hogsheads    of    Sugar    v. 

Boyle   680 

Thompson  v.  Poivles 61 

Three  Friends,  The 548,  830 

Tinos,  The 855 

Titus  V.    U.  S 93 

Trende  Sostre,  The 816 

Trent,  Case  of 887 

Trigas  v.  City  of  Manila 86 

Triquet  v.  Bath 2 

Tucker  v.  Alexandroff 452 

Turner  v.  Williams 146 

Twee  Qebroeders,  The 214,  850 

Underhill  v.  Hernandez 11 

United    Combed    Wool    Spinning 
Mills  of  Scfuiffhausen  &  Deren^ 

dingen,  In  re ^1067 

U.  S.  V.  Active,   The 525 

U.  S.  V.  Ambrose  Light,  The 544 

U.  8.  V.   Arjona 374 

U.  S.  V.  Benner 297 

U.  S.  V.   Benner 291 

V.  8.  V.   Bull 251 

U.  S.  V.  De   Repentigmj 101 

U.  S.  v.  Diekelman 332 

U.  S.  V.  Great  Britain 238,  260 

U.  S.  V.    Grossmayer 582 

U.  8.  V.    Guillem 953 

U.  8.  V.  Guinet 827 

C.  8.  V.   Hand 298 

U.  S.  V.  Itata,  The 901 

U.  S.  V.  Jeffers 323 

U.  S.  V.  Liddle 296 

U.  S.  V.    McRac 92 

U.  S.  V.  Meteor,   The 828 

U.  S.  V.    Moreno 190 

V.  8.  V.  Ortega : 296 

V.  8.  V.  Pacific  Railroad 509 

U.  S.  V.  Peggy,   The 465 

U.  S.  V.  Perciieman 99 

U.  S.  V.  Prioleau 90 


Page 
U.  S.  V.   Quincy 828 

U.  S.  V.  Kauscher 405 

U.  S.  V.    Ravara 313 

U.  S.  V.  Rice 707 

U.  S.  V.    Rodgers 222,  360 

U.  S.  V.  Smiley 377 

V.  S.  V.   Smith 338 

U.  S.  V.  Trumbull 318 

U.  S.  V.  Two  Thousand  Cases  of 

Rifles  901 

U.  S.  V.   Winans.  .• 255 

U.  8.  V.    Winchester 1037 

U.  S.  V.  Wong  Kim  Ark 138 

Usparicha  v.  Noble 639 

Valeria.,   The 850 

Vavasseur  v.  Krwpp 285 

Venezuela,    The 689 

Venus,  The 672 

Vereinigte    Koenigs    Und    Laura- 
huette  Actiengesellschaft  v.  Rio 

Tinto  Co 597 

Vesta,  The 1028 

Victoria  Nnanza,  Matter  of 228 

Vilas  V.  City  of  Manila 8& 

Virginia  v.  Tennessee 252 

Vorwarts,  The 791 

Vrow  Henrica,  The 1083 

Wade  V.  Barnwell 705 

Wadeer  v.  East  India  Co 701 

Walker  v.  Baird 463 

Ware  v.  HyUon 457,  560 

Washington,  The,  Case  of 229 

Wells  V.  Williams 566 

West  Rand  Central  Gold  Mining 

Co.  V.  King,  The 5,  74 

Wheelwright  v.  Depeyster 1082 

White,  The  C.  H 371 

Whitney  v.  Robertson 458 

Wildenhnis,  Case  of 385 

William,  The 751,  982 

William  Bagaley,  The 690 

William  Kmg,  The 493 

William,  Penn,  The 650 

William  Penn,  The 653 

Williams,  Case  of 158 

Williams  v.  Brufify 40 

Williams  v.  Marshall 643 

Williams  v.  Suffolk  Ins.  Co 73 

Wilson  v.  Blanco 293 

Wilson  V.  McNamee 357 

Wilson  V.  Shaio 432 

Wolff  V.  Oxholm 550 

Wren,  The 954 

Yangtsze  Ins.  Ass'n  v.  Indemnity 

Mut.  Marine  Assur.  Co S77 

Young,   In  re 145 

Yrisarri  v.   Clement '    19 

Zamora.  The 733,  10.52 

^mora.   The 973 


CASES 


ON 


INTERNATIONAL  LAW 


INTRODUCTION 

SECTION  1.— THE  NATURE  AND  EXTENT  OF  INTERNA- 
TIONAL LAW 


I.  British  Cases 


AN  ACT  FOR  PRESERVING  THE  PRIVILEGES  OF  AM- 
BASSADORS, AND  OTHER  PUBLIC  MINISTERS 
OF  FOREIGN  PRINCES  AND  STATES.    1708. 

(1  Chitty's  Statutes  [5th  Ed.]  Title  Ambassadors.) 

Whereas  several  turbulent  and  disorderly  persons  having  in  a 
most  outrageous  manner  insulted  the  person  of  his  excellency  Andrew 
Artemonowitz  Matueof,  ambassador  extraordinary  of  his  czarish 
majesty,  emperor  of  Great  Russia,  her  majesty's  good  friend  and 
ally,  by  arresting  him,  and  taking  him,  by  violence,  out  of  his  coach 
in  the  public  street,  and  detaining  him  in  custody  for  several  hours, 
in  contempt  of  the  protection  granted  by  her  majesty,  contrary  to  the 
law  of  nations  and  in  prejudice  of  the  rights  and  privileges  which 
ambassadors  and  other  public  ministers,  authorized  and  received  as 
such,  have  at  all  times  been  thereby  possessed  of,  and  ought  to  be 
kept  sacred  and  inviolable :  (  Be  it  therefore  declared.  That  all  actions 
and  suits,  writs  and  processes,  commenced,  sued,  or  prosecuted,  against 
the  said  ambassador  by  any  person  or  persons  whatsoever,  and  all  bail 
bonds  given  by  the  said  ambassador,  or  any  other  person  or  persons  on 
his  behalf,  and  all  recognizances  of  bail  given  or  acknowledged  in  any 
such  action  or  suit,  and  all  proceedings  upon  or  by  pretext  or  colour  of 
such  action  or  suit,  writ  or  process,  and  all  judgments  had  thereupon, 
are  utterly  null  and  void,  and  shall  be  deemed  and  judged  to  be  utterly 
null  and  void,  to  all  intents,  constructions  and  purposes  whatso- 
ever.    *     *     * 

Scott  Int.  Law — i 


a  INTRODUCTION 

TRIQUET  et  al.  v.  BATH. 

PEACH  et  al.  v.  BATH. 

(Court  of  King's  Bench,  1764.    3  Burr.  1478.) 

Mr.  Blackstone,  Mr.  Thurlow,  and  Mr.  Dunning,  on  behalf  of  the 
plaintiffs,  showed  cause  why  the  bill  of  Middlesex  in  each  of  these 
causes  should  not  be  set  aside,  and  the  bail-bond  be  cancelled. 

The  rule  was  made  upon  affidavits  "Of  the  defendant's  being  a 
domestic  servant  of  a  foreign  minister;  and  having  taken  all  the 
proper  steps  to  entitle  him  to  the  privilege  of  such  domestics." 

The  only  question  was,  "Whether  the  defendant  (Christopher  Bath) 
was  really  and  truly  and  bona  fide  a  domestic  servant  of  Count  Has- 
lang,  the  Bavarian  minister;"  or,  "Whether  his  service  was  only  color- 
able, and  a  mere  sham  and  pretence  calculated  to  protect  him  from 
the  just  demands  of  his  creditors."     *     *     * 

Lord  Mansfield.  Mhis  privilege  of  foreign  ministers  and  their 
domestic  servants  depends  upon  the  law  of  nations,  y  The  act  of  Par- 
liament of  7  Anne,  c.  12,  is  declaratory  of  it.  All  that  is  new  in  this 
act,  is  the  clause  which  gives  a  summary  jurisdiction  for  the  punish- 
ment of  the  infractors  of  this  law. 

{The  act  of  Parliament  was  made  upon  occasion  of  the  Czar's  ambas- 
sador being  arrested,  If  proper  application  had  been  immediately 
made  for  his  discharge  from  the  arrest,  the  matter  might  and  doubtless 
would  have  been  set  right.  Instead  of  that,  bail  was  put.  in,  before 
any  complaint  was  made.  An  information  was  filed  by  the  then 
attorney-general  against  the  persons  who  were  thus  concerned,  as 
infractors  of  the  law  of  nations,  and  they  were  found  guilty,  but  never 
brought  up  to  judgment. 

The  Czar  took  the  matter  up,  highly.  No  punishment  would  have 
been  thought  by  him  an  adequate  reparation.  Such  a  sentei?ce  as  the 
court  could  have  given,  he  might  have  thought  a  fresh  insult. 

Another  expedient  was  fallen  upon  and  agreed  to ;  this  act  of  Par- 
liament passed,  as  an  apology  and  humiliation  from  the  whole  nation. 
It  was  sent  to  the  Czar,  finely  illuminated,  by  an  ambassador  extraor- 
dinary, who  made  excuses  in  a  solemn  oration. 

A  great  deal  relative  to  this  transaction  and  negotiation  appears  in 
the  annals  of  that  time;  and  from  a  correspondence  of  the  Secretary 
of  State  there  printed. 

But  the  act  was  not  occasioned  by  any  doubt  "Whether  the  law  of 
nations,  particularly  the  part  relative  to  public  ministers,  was  not 
part  of  the  law  of  England,  and  the  infraction,  criminal;  nor  in- 
tended to  vary  an  iota  from  it." 

I  remember  in  a  case  before  Lord  Talbot,  of  Buvot  v.  Barbut,  in 
Cane.    16th  July,    1736,   upon  a  motion  to   discharge  the  defendant 

Scott  Int.Law 


THE  NATURE   AND   EXTENT  OF  INTERNATIONAL  LAW  3 

(who  was  in  execution  for  not  performing  a  decree),  "Because  he  was 
agent  of  commerce,  commissioned  by  the  King  of  Prussia,  and 
received  here  as  such;"  the  matter  was  very  elaborately  argued  at 
the  bar;  and  a  solemn  deliberate  opinion  given  by  the  court.  These 
questions  arose  and  were  discussed. — "Whether  a  minister  could,  by 
any  act  or  acts,  waive  his  privilege." — "Whether  being  a  trader  was 
any  objection  against  allowing  privilege  to  a  minister,  personally." — 
"Whether  an  agent  of  commerce,  or  even  a  consul,  was  entitled  to  the 
privileges  of  a  public  minister." — "What  was  the  rule  of  decision:  the 
act  of  Parliament  or  the  law  of  nations."  Lord  Talbot  declared  a  clear 
opinion — "That  the  law  of  nations,  in  its  full  extent,  was  part  of  the 
law  of  England."— "That  the  act  of  Parliament  was  declaratory,  and 
occasioned  by  a  particular  incident." — "That  the  law  of  nations  was  to 
be  collected  from  the  practice  of  different  nations,  and  the  authority 
of  writers."  Accordingly,  he  argued  and  determined  from  such  in- 
stances, and  the  authority  of  Grotius,  Barbeyrac,  Binkershoek,  Wique- 
fort,  &c. ;  there  being  no  English  writer  of  eminence  upon  the  sub- 
ject. 

I  was  counsel  in  this  case,  and  have  a  full  note  of  it, 

I  remember,  too.  Lord  Hardwicke's  declaring  his  opinion  to  the 
same  effect ;  and  denying  that  Lord  Chief  Justice  Holt  ever  had  any 
doubt  as  to  the  law  of  nations  being  part  of  the  law  of  England,  upon 
the  occasion  of  the  arrest  of  the  Russian  ambassador. 

Mr.  Blackstone's  principles  are  right ;  but  as  to  the  facts  in  -the 
present  case,  the  affidavits  on  the  part  of  the  defendant  have  outsworn 
those  on  the  part  of  the  plaintiffs.  [And  his  Lordship,  as  well  as  Mr. 
Justice  WiLMOT,  took  notice  that  the  person  who  drew  the  affidavits 
on  the  part  of  the  defendant  had  very  exactly  pursued  the  course  of 
the  cases  that  had  been  determined  upon  questions  of  this  kind ;  and 
had  taken  care  to  meet  and  answer  all  objections  that  might  arise  from 
them.]  ^ord  Mansfield  observ€4--alsay  that  the  defendant  was  em 
ploye_d-m-^the  service  of  Monsieur  Haslang,  before  the  plaintiff"  toot 
out  his  writ. 

It  was  not  to  be  expected,  he  said,  that  every  particular  act  of  the 
service  should  be  particularly  specified;  iLis^enougli^if . aa-actual  bona 
fide  service^ be  proved.  And  if  such  a  service  be  sufficiently  proved  by 
affidavit,  we  must  not,  upon  bare  suspicion  only,  suppose  it  to  have  been 
merely  colorable  and  collusive. 

As  to  the  latter  point,  "Of  his  being  a  trader" — his  having  been  so  in 
Ireland  (and  even  that  seven  years  ago)  will  not  bring  him  within 
the  exception  of  the  5th  clause  of  this  act,  which  provides  "That  no  mer- 
chant or  other  trader  whatsoever,  within  the  description  of  any  of  the 
statutes  against  bankrupts,  who  hath  or  shall  put  himself  into  the  serv- 
ice of  any  such  ambassador  or  public  minister,  shall  have  or  take  any 
manner  of  benefit  by  that  act." 


>;\ 


4  INTRODUCTION 

And  there  is  no  color  for  bringing  this  case  within  that  of  Dodsworth 
V.  Anderson,  Sir  T.  Raym.  375,  Sir  T.  Jones,  141 ;  for  here  is  no  con- 
nection between  the  goods  bought  in  England  and  those  sold  in  Ireland. 
It  does  not  appear  that  they  were  the  same  goods ;  neither  is  any  time 
specified,  when  they  were  bought,  or  when  they  were  sold. 

Per  Cur.  Both  rules  were  made  absolute,  but  without  costs,  by 
reason  of  the  suspicious  circumstances  of  this  case.^ 


THE  MINERVA. 

(Vice-Admiralty  Court  for  Bombay,  1806.     1  Robert  J.  Mackintosh's  Mem- 
oirs of  the  Life  of  Sir  James  Mackintosh   [1835]  317.) 

It  was  that  of  the  Minerva,  an  American  ship  taken  in  a  voyage  from 
Providence,  in  the  course  of  which  she  touched  at  the  Isle  ot  France, 
from  which  place  she  sailed  to  Tegall  and  Manilla,  and  on  her  voyage 
back  from  this  last  place  to  Batavia,  she  was  detained  as  trading  be- 
tween enemies'  ports,  in  violation  of  His  Majesty's  Instructions  of 
June,  1803.  Restitution  was  insisted  on  by  the  claimants,  on  the  ground 
that  neither  Manilla  nor  Batavia,  nor  the  Isle  of  France,  were  enemies' 
colonies  in  such  a  sense,  as  to  render  the  trading  thereto  by  a  neutral, 
in  time  of  w^ar,  illegal ;  inasmuch  as  the  trade  to  these  places  was  open 
to  foreigners  in  time  of  peace.  For  the  purpose  of  ascertaining  this 
last  point,  commissions  had  been  sent  to  Calcutta  and  Madras ;  and  the 
judge,  finding  that  the  trade  had  been  as  alleged,  open  to  foreigners, 
pronounced  for  restitution,  but  without  costs. 

In  pronouncing  the  judgment  he  [Sir  James  Mackintosh]  observed, 
"that  the  sole  point  in  the  case  was,  whether  Manilla  and  Batavia 
were  colonies,  according  to  the  true  meaning  of  His  Majesty's  Instruc- 
tions of  1803 ;  or,  in  other  words,  whether  they  were  settlements  ad- 
ministered, in  time  of  peace,  on  principles  of  colonial  monopoly.  The 
word  "colony"  was  here  not  a  geographical,  but  a  political  term.  His 
Majesty's  Instructions  must  be  construed  so  as  not  to  be  at  variance 
with  the  principle  of  public  law,  maintained  by  Great  Britain,  called 
the  rule  of  1756.  No  settlement  could  be  called  a  colony  under  that 
rule,  which  was  open  to  foreigners  in  time  of  peace.  As,  from  the  re- 
turn to  the  commissions,  it  appeared  that  Batavia  and  Manilla  were  not 
such  colonies,  he  did  not  therefore  conceive  that  trading  to  them  was 
illegal  under  the  law  of  nations,  as  relaxed  by  His  Majesty's  Instruc- 
tions oi  1803. 

iln  Heathfield  v.  Chilton,  4  Burr.  2015,  2016  (1767),  Lord  Chief  Justice 
Mansfield  thus  restated  the  views  which  he  had  expressed  in  the  principal 
case:  ''The  privileges  of  public  ministers  and  their  retinue  depend  upon  the 
law  of  nations,  which  is  part  of  the  common  law  of  England.  And  the  act  of 
Parliament  of  7  Anne,  c.  12,  did  not  intend  to  alter,  nor  can  alter  the  law  of 
nations." 


THE   NATURE   AND   EXTENT  OF  INTERNATIONAL  LAW  5 

"Something  had  been  said  of  the  obedience  due  to  the  letter  of  these 
Instructions.  Undoubtedly  the  letter  of  the  Instructions  was  a  suffi- 
cient warrant  for  His  Majesty's  officers  for  detaining  ships,  which  ap- 
peared to  offend  against  it;  but,  as  to  the  doctrine  that  courts  of 
prize  were  bound  by  illegal  instructions,  he  had  already,  in  a  former 
case  (that  of  The  Erin),  treated  it  as  a  groundless  charge  by  an  Ameri- 
can writer  against  English  courts.  In  this  case  (which  had  hitherto 
been,  and,  he  trusted,  ever  would  continue,  imaginary),  of  such  illegal 
instructions,  he  was  convinced  that  English  courts  of  admiralty  would 
as  much  assert  their  independence  of  arbitrary  mandates  as  English 
courts  of  common  law.  That  happily  no  judge  had  ever  been  called 
upon  to  determine,  and  no  writer  had  distinctly  put  the  case  of,  such  a 
repugnance.  He  had,  therefore,  no  direct  and  positive  authority;  but 
he  never  could  hesitate  in  asserting,  that,  in  such  an  imaginary  case,  it 
would  be  the  duty  of  a  judge  to  disregard  the  Instructions,  and  to  con- 
sult only  that  universal  law,  to  which  all  civilized  princes  and  states 
acknowledge  themselves  to  be  subject,  and  over  which,  none  of  them 
can  claim  any  authority."  ^ 


WEST  RAND  CENTRAL  GOLD  TUNING  CO.,  Limited,  v. 

THE  KING. 

(Court  of  King's  Bench,  1905.     L.  R.  [1905]  2  K.  B.  391.) 

Petition  of  right  by  the  West  Rand  Central  Gold  Mining  Company, 
Limited.'     *     *     * 

Lord  AlvErstonr,  C.  J.  In  this  case  the  Attorney-General,  on  be- 
half of  the  crown,  demurred  to  a  petition  of  right  presented  in  the 
month  of  June,  1904,  by  the  West  Rand  Central  Gold  Mining  Com- 
pany, Limited.  The  petition  of  right  alleged  that  two  parcels  of  gold, 
amounting  in  all  to  the  value  of  i3804,  had  been  seized  by  officials  of 
the  South  African  Republic — £1104  on  October  2  in  course  of  transit 
from  Johannesburg  to  Cape  Town,  and  £2700  on  October  9,  taken  from 
the  bank  premises  of  the  petitioners.    No  further  statement  was  made 

2  This  decision  of  Sir  James  Mackintosh  is  quoted  with  approval  by  Sir 
Robert  Phillimore,  Commentaries  upon  International  Law  (3d  Ed..  18S5)  655. 
It  has  had  the  good  fortune  to  be  confirmed  by  the  highest  judicial  authori- 
ties of  Great  Britain.  Thus,  Lord  Parker,  speaking  for  the  Judicial  Commit- 
tee of  the  Privy  Council  in  The  Steamship  Consul  Coiiitzon,  [1917]  L.  R..  App. 
Cas.  550,  555,  said :  "The  substantive  law  administered  by  the  court  is  inter- 
national law,'which  cannot  be  affected  by  the  municipal  legislation  of  any  one 
state,  and  its  practice  and  procedure  are  governed  by  the  municipal  law  of 
the  state  from  which  it  derives  its  jurisdiction,  and  cannot  be  modilied  by  the 
municipal  legislation  of  any  other  state." 

For  an  elaborate  statement  of  this  position  see  The  Zamora,  191G,  L.  R. 
[1916]  2  A.  C.  77,  post,  p.  10.52. 

8  The  statement  of  facts  contained  in  the  report  is  omitted,  and  only  the 
portion  of  the  opinion  of  the  court  dealing  with  international  law  is  given. 

b'or  the  balance  of  the  opinion,  dealing  with  the  liability  of  the  succeeding 
state,  see  post.ip.  74. 


b  INTRODUCTION 

in  the  petition  of  the  circumstances  under  which,  or  the  right  by  which, 
the  government  of  the  Transvaal  RepubHc  claimed  to  seize  the  gold; 
but  it  was  stated  in  paragraph  6 : 

"That  the  gold  was  in  each  case  taken  possession  of  by,  and  on  be- 
half of,  and  for  the  purposes  of,  the  then  existing  government  of  the 
said  Republic,  and  that  the  said  government,  by  the  laws  of  the  said 
Republic,  was  under  a  liability  to  return  the  said  gold,  or  its  value,  to 
your  suppliants.  None  of  the  said  gold  has  been  returned  to  your 
suppliants,  nor  did  the  said  government  make  any  payment  in  re- 
spect thereof." 

The  petition  then  alleged  that  a  state  of  war  commenced  at  5  p.  m. 
on  October  11,  1899,  that  the  forces  of  the  late  queen  conquered  the 
Republic,  and  that  by  a  proclamation  of  September  1,  1900,  the  whole 
of  the  territories  of  the  Republic  were  annexed  to,  and  became  part 
of,  her  majesty's  dominions,  and  that  the  government  of  the  Republic 
.  ceased  to  exist.  The  petition  then  averred  that  by  reason  of  the  con- 
quest and  annexation  her  majesty  succeeded  to  the  sovereignty  of  the 
Transvaal  Republic,  and  became  entitled  to  its  property ;  and^that  the 
obligation  which  vested  in  the  government  was  binding  upon  his  pres- 
enti5ajes|}^Jhe  king. 

Before  dealing  with  the  questions  of  law  which  were  argued  before 
us,  we  think  it  right  to  say  that  we  must  not  be  taken  as  acceding  to 
the  view  that  the  allegations  in  the  petition  disclosed  a  sufficient  ground 
for  relief.  The  petition  appears  to  us  demurrable  for  the  reason  that 
it  shews  no  obligation  of  a  contractual  nature  on  the  part  of  the  Trans- 
vaal government.  For  all  that  appears  in  the  petition  the  seizure  might 
have  been  an  act  of  lawless  v-iolence.     *     *     * 

Lord  Robert  Cecil  argued  that  all  contractual  obligations  incurred 
,  by  a  conquered  state,  beforejwar  actuallybreaks  out,^p,ass  upon  annexa- 
/  tion  to  the  conqueror,  no  matter  what  was.  their  nature,  character,,  ori- 
gin, or  history.  *  *  *  fjjg  niain  proposition  was  divided  into  three 
heads :  First,  that,  by  international  law,  the  sovereign  of  a  conquer- 
ing state  is  liable  for  the  obligations  of  the  conquered;  secondly,  that 
international  law  forms  part  of  the  law  of  England ;  and,  thirdly,  that 
rights  and  obligations,  which  were  binding  upon  the  conquered  state, 
must  be  protected  and  can  be  enforced  by  the  municipal  courts  of  the 
conquering  state. 

In  support  of  his  first  proposition  Lord  Robert  Cecil  cited  passages 
from  various  writers  on  international  law.  In  regard  to  this  class  of 
authority  it  is  important  to  remember  certain  necessary  limitations  to 
its  value.  There  is  an  essential  difference,  as  to  certainty  and  definite- 
ness,  between  municipal  law  and  a  system  or  body  of  rules  in  regard 
to  international  conduct,  which,  so  far  as  it  exists  at  all  (and  its  exist- 
ence is  assumed  by  the  phrase  "international  law"),  rests  upon  a  con- 
sensus of  civilized  states,  not  expressed  in  any  code  or  pact,  nor  pos- 
sessing, in  case  of  dispute,  any  authorized  or  authoritative  interpreter. 


THE   NATURE   AND   EXTENT   OF   INTERNATIONAL   LAW  7 

and  capable,  indeed,  of  proof,  in  the  absence  of  some  express  inter- 
national agreement,  only  by  evidence  of  usage  to  be  obtained  from  the 
action  of  nations  in  similar  cases  in  the  course  of  their  history.  It  is 
obvious  that,  in  respect  of  many  questions  that  may  arise,  there  will  be 
room  for  difference  of  opinion  as  to  whether  such  a  consensus  could 
be  shown  to  exist.  Perhaps  it  is  in  regard  to  the  extraterritorial  priv- 
ileges of  ambassadors,  and  in  regard  to  the  system  of  limits  as  to  ter- 
ritorial waters,  that  it  is  least  open  to  doubt  or  question. 

The  views  expressed  by  learned  writers  on  international  law  have 
done  in  the  past,  and  will  do  in  the  future,  valuable  service  in  helping  to 
create  the  opinion  by  which  the  range  of  the  consensus  of  civilized  na- 
tions is  enlarged.  But  in  many  instances  their  pronouncements  must 
be  regarded  rather  as  the  embodiments  of  their  views  as  to  what  ought 
to  be,  from  an  ethical  standpoint,  the  conduct  of  nations  inter  se,  than 
the  enunciation  of  a  rule  or  practice  so  universally  approved  or  as- 
sented to  as  to  be  fairly  termed,  even  in  the  qualified  sense  in  wKich 
that  word  can  be  understood  in  reference  to  the  relations  between  in- 
dependent political  communities,  "law."  The  reference  which  these 
writers  not  infrequently  make  to  stipulations  in  particular  treaties  as 
acceptable  evidence  of  international  law  is  as  little  convincing  as  the  at- 
tempt, not  unknown  to  our  courts,  to  establish  a  trade  custom  which  is 
binding  without  being  stated,  by  adducing  evidence  of  express  stipu- 
lations to  be  found  in  a  number  of  particular  contracts. 

Before,  however,  dealing  with  the  specific  passages  in  the  writings  of 
jurists  upon  which  the  suppliants  rely,  we  desire  to  consider  the  prop- 
osition, that  by  international  law  the  conquering  country  is  bound  to 
fulfil  the  obligations jDi. the  conquered,  upon  principle;  and  upon  prin- 
ciple we  think  it  cannot  be  sustained.     *     *     * 

The  second  proposition  urged  by  Lord  Robert  Cecil,  that  interna- 
tional law  forms  part  of  the  law  of  England,  requires  a  word  of  ex- 
planation and  comment.  It  is  quite  true  that  whatever  has  received  the 
common  consent  of  civilized  nations  must  have  received  the  assent  of 
our  country,  and  that  to  which  we  have  assented  along  with  other  na- 
tions in  general  may  properly  be  called  international  law,  and  as  such 
will  be  acknowledged  and  applied  by  our  municipal  tribunals  when  le- 
gitimate occasion  arises  for  those  tribunals  to  decide  questions  to 
which  doctrines  of  international  law  may  be  relevant.  But  any  doc- 
trine so  invoked  must  be  one  really  accepted  as  binding  between  na- 
tions, and  the  international  law  sought  to  be  applied  must,  like  any- 
thing else,  be  proved  by  satisfactory  evidence,  which  must  shew  either 
that  the  particular  proposition  put  forward  has  been  recognized  and 
acted  upon  by  our  own  country,  or  that  it  is  of  such  a  nature,  and  has 
been  so  widely  and  generally  accepted,  that  it  can  hardly  be  supposed 
that  any  civilized  state  would  repudiate  it.  The  mere  opinions  of  ju- 
rists, however  eminent  or  learned,  that  it  ought  to  be  so  recognized,  are 
not  in  themselves  sufficient.    They  must  have  received  the  express  sane- 


8  INTRODUCTION 

tion  of  international  agreement,  or  gradually  have  grown  to  be  part  of 
international  law  by  their  frequent  practical  recognition  in  dealings  be- 
tween various  nations. 

We  adopt  the  language  used  by  Lord  Russell  of  Killowen  in  his  ad- 
dress at  Saratoga  in  1896  on  the  subject  of  international  law  and  ar- 
bitration :  "What,  then,  is  international  law  ?  I  know  no  better  defini- 
tion of  it  than  that  it  is  the  sum  of  the  rules  or  usages  which  civilized 
states  have  agreed  shall  be  binding  upon  them  in  their  dealings  with 
one  another."  In  our  judgment,  the  second  proposition  for  which 
Lord  Robert  Cecil  contended  in  his  argument  before  us  ought  to  b^ 
treated  as  correct  only  if  the  term  "international  law"  is  understood 
in  the  sense,  and  subject  to  the  limitations  of  application,  which  we 
have  explained.  The  authorities  which  he  cited  in  support  of  the  prop- 
osition are  entirely  in  accord  with  and,  indeed,  well  illustrate  our  judg- 
ment upon  this  branch  of  the  arguments  advanced  on  behalf  of  the  sup- 
pliants; for  instance,  Barbuit's  Case,  Cas.  t.  Tal.  281,  Triquet  v.  Bath,  3 
Burr.  1478,  and  Heathfield  v.  Chilton,  4  Burr.  2016,  are  cases  in  which 
the  courts  of  law  have  recognized  and  have  given  effect  to  the  privilege 
of  ambassadors  as  established  by  international  law.  But  the  expres- 
sions used  by  Lord  Mansfield  when  dealing  with  the  particular  and 
recognized  rule  of  international  law  on  this  subject,  that  the  law  of  na- 
tions forms  part  of  the  law  of  England,  ought  not  to  be  construed  so 
as  to  include  as  part  of  the  law  of  England  opinions  of  text-writers 
upon  a  question  as  to  which  there  is  no  evidence  that  Great  Britain  has 
ever  assented,  and  a  fortiori  if  they  are  contrary  to  the  principles  of  her 
laws  as  declared  by  her  courts.  The  cases  of  Wolff  v.  Oxholm,  6  M.  & 
S.  92,  18  R.  R.  3i3,  and  Rex  v.  Keyn,  2  Ex.  D.  63,  are  only  illustra- 
tions of  the  same  rule — namely,  that  questions  of  international  law 
may  arise,  and  may  have  to  be  considered  in  connection  with  the  admin- 
istration of  municipal  law. 

We  pass  now  to  consider  the  third  proposition  upon  which  the  suc- 
cess of  the  suppliants  in  this  case  must  depend — namely,  that  the  claims 
of  the  suppliants  based  upon  the  alleged  principle  that  the  conquering 
state  is  bound  by  the  obligations  of  the  conquered  can  be  enforced  by 
petition  of  right.  *  *  *  We  are  of  opinion,  for  .the  reasons  given, 
that  no  right  on  the  part  of  the  suppliants  is  disclosed  by  the  petition 
which  can  be  enforced  as  against  his  majesty  in  this  or  in  any  municipal 
court ;  and  we  therefore  allow  the  demurrer,  with  costs. 

Judgment  for  the  crown. 


THE  NATURE   AND   EXTENT   OF  INTERNATIONAL  LAW 


II.    AMERICAN  CASES 


THE  ANTELOPE. . 

(Supreme  Court  of  the  United  States,  1825.    10  "Wheat.  66,  6  L.  Ed.  268.) 

Appeal  from  the  Circuit  Court  of  Georgia. 

These  cases  were  allegations  filed  by  the  vice  consuls  of  Spain  and 
Portugal,  claiming  certain  Africans  as  the  property  of  subjects  of 
their  nation,  A  privateer,  called  the  Columbia,  sailing  under  a  Vene- 
zuelan commission,  clandestinely  shipped  a  crew  mostly  of  citizens  of 
the  United  States  in  Baltimore  in  1819  and  proceeded  to  sea,  hoisted 
a  foreign  flag  and  assumed  the  name  of  the  Arraganta.  Off  the  coast 
of  Africa  sbe  captured'  several  Portuguese  vessels  and  a  Spanish  ves- 
sel called  the  Antelope,  from  each  of  which  vessels  she  took  off  a 
considerable  number  of  Africans.  The  two  vessels  then  sailed  to 
the  coast  of  Brazil,  where  the  Arraganta  was  wrecked  and  a  part  of 
the  crew  were  made  prisoners,  and  some  of  the  Africans  were  lost. 
The  rest  of  the  crew  and  the  remainder  of  the  Africans  were  trans- 
ferred to  the  Antelope.  This  vessel  later  was  captured  off  the  coast 
of  the  United  States  by  the  revenue  cutter  Dallas,  and  brought  into  the 
port  of  Savannah  for  adjudication.  The  vessel  and  the  Africans  were 
libelled  by  the  Portuguese  and  Spanish  vice  consuls.  The  Africans 
were  also  claimed  by  the  United  States  as  having  been  transported  from 
foreign  parts  by  American  citizens,  in  contravention  of  the  laws  of 
the  United  States,  and  as  entitled  to  their  freedom  by  those  laws  and 
by  the  law  of  nations. 

The  court  dismissed  the  claim  of  the  United  States,  except  as  to 
that  portion  of  the  Africans  which  had  been  taken  from  the  American 
vessel.  The  residue  was  divided  between  the  Spanish  and  Portuguese 
claimants.*" 

Mr.  Chief  Justice  Marshall.  In  prosecuting  this  appeal,  the  United 
States  assert  no  property  in  themselves.  They  appear  in  the  charac- 
ter of  guardians,  or  next  friends,  of  these  Africans,  who  are  brought, 
without  any  act  of  their  own,  into  the  bosom  of  our  country,  insist 
on  their  right  to  freedom,  and  submit  their  claim  to  the  laws  of  the 
land,  and  to  the  tribunals  of  the  nation.  The  consuls  of  Spain  and 
Portugal,  respectively,  demand  these  Africans  as  slaves,  who  have, 
in  the  regular  cause  of  legitimate  commerce,  been  acquired  as  property, 
by  the  subjects  of  their  respective  sovereigns,  and  claim  their  restitu- 
tion under  the  laws  of  the  United  States.     *     *     * 

In  the  United  States,  different  opinions  have  been  entertained  in 
the  different  circuits  and  districts;    and  the  subject  is  now,  for  the 

<  A  statement  of  the  facts  of  the  case  has  been  substituted  for  that  of  the 
report. 


10  INTRODUCTION 

first  time,  before  this  court.  The  question,  whether  the  slave  trade  is 
prohibited  by  the  law  of  nations  has  been  seriously  propounded,  and 
both  the  affirmative  and  negative  of  the  proposition  have  been  main- 
tained with  equal  earnestness.  That  it  is  contrary  to  the  law  of  nature 
will  scarcely  be  denied.  That  every  man  has  a  natural  right  to  the 
fruits  of  his  own  labor  is  generally  admitted ;  and  that  no  other  person 
can  rightfully  deprive  him  of  those  fruits,  and  appropriate  them  against 
his  will,  seems  to  be  the  necessary  result  of  this  admission.  But  from 
the  earliest  times  war  has  existed,  and  war  confers  rights  in  which  all 
have  acquiesced.  Among  the  most  enlightened  nations  of  antiquity, 
one  of  these  was  that  the  victor  might  enslave  the  vanquished.  This, 
y/^vhich  was  the  usage  of  all,  could  not  be  pronounced  repugnant  to  the 
law  of  nations,  which  is  certainly  to  be  tried  by  the  test  of  general 
usage.  That  which  has  received  the  assent  of  all,  must  be  the  law  of 
all.  Slavery,  then,  has  its  origin  in  force ;  but  as  the  world  has  agreed, 
that  it  is  a  legitimate  result  of  force,  the  state  of  things  which  is 
thus  produced  by  general  consent,  cannot  be  pronounced  unlawful. 

Throughout  Christendom,  this  harsh  rule  has  been  exploded,  and 
war  is  no  longer  considered  as  giving  a  right  to  enslave  captives.  But 
this  triumph  of  humanity  has  not  been  universal.  The  parties  to  the 
modern  law  of  nations  do  not  propagate  their  principles  by  force,  and 
Africa  has  not  yet  adopted  them.  Throughout  the  whole  extent  of 
that  immense  continent,  so  far  as  we  know  its  history,  it  is  still  the 
law  of  nations,  that  prisoners  are  slaves.  Can  those  who  have  them- 
selves renounced  this  law,  be  permitted  to  participate  in  its  effects, 
by  purchasing  the  beings  who  are  its  victims?  Whatever  might  be  the 
answer  of  a  moralist  to  this  question,  a  jurist  must  search  for  its 
legal  solution,  in  those  principles  of  action  which  are  sanctioned  by  the 
usages,  the  national  acts,  and  the  general  assent,  of  that  portion  of 
the  world  of  which  he  considers  himself  as  a  part,  and  to  whose  law 
the  appeal  is  made.  If  we  resort  to  this  standard,  as  the  test  of  inter- 
national law,  the  question,  as  has  already  been  observed,  is  decided 
in  favor  of  the  legality  of  the  trade.  Both  Europe  and  America  em- 
barked in  it;  and  for  nearly  two  centuries,  it  was  carried  on,  without 
opposition,  and  without  censure.  A  jurist  could  not  say  that  a  practice, 
thus  supported,  was  illegal,  and  that  those  engaged  in  it  might  be 
punished,  either  personally  or  by  deprivation  of  property.  In  this 
commerce  thus  sanctioned  by  universal  assent,  every  nation  had  an 
(equal  right  to  engage.  How  is  this  right  to  be  lost?  Each  may  re- 
snounce  it  for  its  own  people;  but  can  this  renunciation  affect  others? 
No  principle  of  general  law  is  more  universally  acknowledged,  than 
the  perfect  equality  of  nations.    Russia  and  Geneva  have  equal  rights.^ 

5  «'Every  sovereign  state  is  bound  to  respect  the  independence  of  every  other 
sovereign  state,  and  the  courts  of  one  country  will  not  sit  in  judgment  on  the 
acts  of  the  government  of  another  done  withiia  its  own  territory.  Redress 
of  grievances  by  reason  of  such  acts  must  be  obtained  through  the  means  open 


THE   NATURE   AND   EXTENT   OF   INTERNATIONAL  LAW  11 

It  results  from  this  equality,  that  no  one  can  rightfully  impose  a  rule 
on  another.  Each  legislates  for  itself,  but  its  legislation  can  operate 
on  itself  ^alone.  A  right,  then,  which  is  vested  in  all,  by  the  consent  of 
all,  can  be  divested  only  by  consent;  and  this  trade,  in  which  all  havT' 
participated,  must  remain  lawful  to  those  who  cannot  be  induced  to 
relinquish  it.  As  no  nation  can  prescribe  a  rule  for  others,  none  can 
make  a  law  of  nations;  and  this  traffic  remains  lawful  to  those  whose 
governments  have  not  forbidden  it.  If  it  be  consistent  wath  the  law 
oF nations,  it  cannot  in  itself  be  piracy.  It  can  be  made  so  only  by 
statute;  and  the  obligation  of  the  statute  cannot  transcend  the  legis- 
lative power  of  the  state  which  may  enact  it. 

If  it  be  neither  repugnant  to  the  law  of  nations,  nor  piracy,  it  is 
almost  superfluous  to  say,  in  this  court,  that  the  right  of  bringing  in 
for  adjudication,  in  time  of  peace,  even  where  the  vessel  belongs  to  a 
nation  which  has  prohibited  the  trade,  cannot  exist.  The  courts  of  . 
no  country  execute  the  penal  laws  of  another ;  and  the  course  of  tlie" 
American  government,  on  the  subject  of  visitation  and  search,  would 
decide  any  case  in  which  that  right  had  been  exercised  by  an  American 
cruiser,  on  the  vessel  of  a  foreign  nation,  not  violating  our  municipal 
laws,  against  the  captors.  It  follows,  that  a  foreign  vessel  engaged  in 
the  African  slave  trade,  captured  on  high  seas,  in  time  of  peace,  by 
an  American  cruiser,  and  brought  in  for  adjudication,  would  be  re- 
stored.    *     *     * 

We  think,  then,  that  all  the  Africans,  now  in  possession  of  the 
marshal  for  the  district  of  Georgia,  and  under  the  control  of  the 
circuit  court  of  the  United  States  for  that  district,  which  were  brought 
in  with  the  Antelope,  *  *  *  except  those  which  may  be  designated 
as  the  property  of  the  Spanish  claimants,  ought  to  be  delivered  up  to 
the  United  States,  to  be  disposed  of  according  to  law.  So  much  of  the 
sentence  of  the  circuit  court  as  is  contrary  to  this  opinion,  is  to  be  re- 
versed, and  the  residue  affirmed."     *     *     * 

to  be  availed  of  by  sovereign  powers,  as  between  themselves."  Mr.  Chief  Jus- 
tice Fuller  in  the  case  of  TJuderhill  v.  Hernandez,  168  U.  S.  250,  252,  18  Sup. 
Ct.  83,  42  L.  Ed.  456  (1897). 

«  For  a  discussion  of  the  same  question  from  a  different  point  of  view,  in 
which  the  principle  of  equality  of  nations  is  assorted  and  applied  to  the  high 
seas,  reference  should  be  made  to  the  decision  of  Sir  William  Scott  in  Le  Louis, 
post,  p.  338. 

On  other  occasions  Chief  Justice  Marshall  had  to  consider  and  pass  upon 
question.s  of  International  Law.  In  one  of  his  earlier  cases,  that  of  The 
Charming  Betsy,  2  Cranch,  64,  118,  2  L.  Ed.  208  (1804),  he  said:         ^ 

"It  has  been  very  properly  observed,  in  argument,  that  the  building  of 
vessels  in  the  United  States  for  sale  to  neutrals,  in  the  islands,  is,  during 
war,  a  profitable  business,  which  Congress  cannot  be  intended  to  have  pro- 
hibited, unless  that  intent  be  manifested  by  express  words,  or  a  very  plain  and 
nece-ssary  implication.  It  has  also  been  observed,  that  an  act  of  Congress 
ought  never  to  be  constinied  to  violate  the  law  of  nations,  if  any  other  possi- 
ble construction  remains,  and  consequently,  can  never  be  construed  to  violate 
neutral  rights,  or  to  affect  neutral  conunerce,  further  than  is  warranted  by 
the  law  of  nations  as  understood  in  this  countiy.     These  principles  are  be- 


12  INTRODUCTION 

THE  PAOUETE  HABANA. 
THE  EOEA. 

(Supreme  Court  of  the  United  States,  1900.    175  U.  S.  677,  20  Sup.  Ct.  200, 

44  L.  Ed.  320.) 

During  the  Spanish-American  war  of  1898  two  small  fishing  smacks, 
the  Paquete  Habana  and  the  Lola,  were  respectively  captured  at  sea 
by  the  United  States  gunboat  Castine  and  the  United  States  steamship 
Dolphin,  and  taken  by  their  captors  into  Key  West,  Fla.,  where  they 
were  libelled  and  condemned  as  enemy's  property,  and  sold  under  de- 
cree of  the  court.  On  appeal  to  the  Supreme  Court  of  the  United 
States,  the  question  before  the  court  was,  are  fishing  smacks,  in  the 
absence  of  municipal  law  or  treaty,  protected  from  capture  by  the 
law  of  nations,  and  is  such  law  of  nations  part  of  the  municipal  law 
of  the  United  States  ?  ^ 

Mr.  Justice  Gray.  *  *  *  International  law  is  part  of  our  law, 
and  must  be  ascertained  and  administered  by  the  courts  of  justice  of 
appropriate  jurisdiction,  as  often  as  questions  of  right  depending  upon 
it  are  duly  presented  for  their  determination.*  For  this  purpose 
where  there  is  no  treaty,  and  no  controlling  executive  or  legislative  act 
or  judicial  decision,  resort  must  be  had  to  the  customs  and  usages  oi 
civilized  nations;  and,  as  evidence  of  these,  to  the  works  of  jurists  and 

lieved  to  be  correct,  and  they  ought  to  be  kept  in  view,  in  construing  the  act 
now  under  consideration." 

For  a  further  expression  of  the  views  of  Chief  Justice  Marshall  on  the  na- 
ture and  extent  of  international  law,  see  Thirty  Hogsheads  of  Sugar  v. 
Boyle,  9  Cranch,  191,  19S,  3  L.  Ed.  701  (1815),  post,  p.  682,  and  The  Nereide,  9 
Oranch,  .388.  422,  423,  3  L.  Ed.  769  (1815)  post,  p.  499. 

''  This  brief  statement  is  substituted  for  the  elaborate  presentation  of  the 
facts  and  circumstances  of  the  case  contained  in  the  opinion  of  Mr.  Justice 
Gray.    The  dissenting  opinion  of  Chief  Justice  Fuller  is  omitted. 

s  It  is  of  interest  to  note  that  Sir  William  Blackstone,  the  distinguished 
writer  on  the  laws  of  England,  whose  Commentaries  were  a  text-book  to 
the  colonial  and  revolutionary  statesmen,  as  they  are  even  to-day  in  the  United 
States,  was  of  counsel  in  the  Triquet  Case,  just  as  Lord  Mansfield,  who  de- 
cided it,  was  counsel  in  the  case  of  Buvot  v.  Barbut.  The  law  laid  down  by 
Lord  Talbot  and  Lord  Mansfield  in  these  cases  passed  into  the  Commentaries, 
where  it  is  thus  stated : 

"In  arbitrary  states  this  law,  wherever  it  contradicts  or  is  not  provided  foi 
by  the  municipal  law  of  the  country,  is  enforced  by  the  royal  power ;  but  since 
in  England  no  royal  power  can  introduce  a  new  law,  or  suspend  the  execution 
of  the  old,  therefore  the  law  of  nations  ( wherever  any  question  arises  which  is 
properly  the  object  of  its  jurisdiction)  is  here  adopted  in  its  full  extent  by 
the  common  law,  and  is  held  to  be. a  part  of  the  law  of  the  landy  And  those 
acts  of  parliament,  which  have  from  time  to  time  been  made  to  enforce  this 
universal  law,  or  to  facilitate  the  execution  of  its  decisions,  are  not  to  be 
considered  as  introductive  of  any  new  rule,  but  merely  as  declaratory  of  the 
old  fundamental  constitutions  of  the  kingdom ;  without  which  it  must  cease 
to  be  a  part  of  the  civilized  world."  Commentaries  on  the  Laws  of  England, 
book  IV,  chapter  5,  published  in  1769  (7th  Ed.)  1775,  p.  67. 

In  the  Emperor  of  Austria  v.  Day  and  Kossuth,  2  Gifford,  628,  678,  679  (1861). 
Sir  John  Stuart  quotes  with  approval  this  paragraph  of  the  learned  commenta- 
tor. 


THE  NATURE   AND   EXTENT  OF  INTERNATIONAL  LAW  13 

commentators,  who  by  years  of  labor,  research  and  experience,  have 
made  tHemselves  peculiarly  well  acquainted  with  the  subjects  of  which 
they  treat.  Such  works  are  resorted  to  by  judicial  tribunals,  not  for 
the  speculations  of  their  authors  concerning  what  the  law  ought  to  be. 
but  for  trustworthy  evidence  of  what  the  law  really  is.  Hilton  v.  Guy- 
ot,  159  U.  S.  113,  163,  164,  214.  215,  16  Sup.  Ct.  139,  40  L.  Ed.  95.» 
Wheaton  places,  among  the  principal  sources  of  international  law, 
"Text-writers  of  authority,  showing  what  is  the  approved  usage  of  na- 
tions, or  the  general  opinion  respecting  their  mutual  conduct,  with  the 
definitions  and  modifications  introduced  by  general  consent."  As 
to  these  he  forcibly  observes:  "Without  wishing  to  exaggerate  the 
importance  of  these  writers,  or  to  substitute,  in  any  case,  their  authority 
for  the  principles  of  reason,  it  may  be  affirmed  that  they  are  generally 
impartial  in  their  judgment.     They  are  witnesses  of  the  sentiments 

"For  the  view  of  Mr.  Justice  Story — certainly  a  high  authority — as  to 
the  nature  and  sources  of  international  law,  see  La  Jeune  Eugenie,  2  Mason, 
409,  Fed.  Cas.  No.  15,551  (1S22). 

In  the  course  of  his  opinion  in  this  case,  the  learned  Justice  of  the  Su- 
preme Court,  sitting  at  circuit,  said: 

"Now  the  law  of  nations  may  he  deduced,  first,^from  the  general  principles 
of  right  and  justice,  applied  to  the  concerns  of  individuals,  and  thence  to  the 
relations  and  duties  of  nations ;  or,  secondly,  in  things  indifferent  or  question- 
able, from  the  customary  observances  and  recognitions  of  civilized  nations; 
or,  lastly,  from  the  conventional  or  positive  law,  that  regulates  the  inter- 
course between  states.  What,  therefore,  the  law  of  nations  is,  does  not  rest 
upon  mere  theory,  but  may  be  considered,  as  modified  by  practice,  or  ascer- 
tained by  the  treaties  of  nations  at  different  periods.  It  does  not  follow,  there- 
fore, that  because  a  principle  cannot  be  found  settled  by  the  consent  or  prac- 
tice of  nations  at  one  time,  it  is  to  be  concluded,  that  at  no  subsequent  period 
the  principle  can  be  considered  as  incorporated  into  the  public  code  of  nations. 
Nor  is  it  to  be  admitted,  that  no  principle  belongs  to  the  law  of  nations,  which 
^  not  universally  recognized,  as  such,  by  all  civilized  commimities.  or  even 
by  those  constituting,  what  may  be  called,  the  Christian  states  Of  Europe. 
Some  doctrines,  which  we,  as  well  us  (ireut  Britain,  admit  to  belong  to 
the  law  of  nations  are  of  but  recent  origin  and  application,  and  have  not, 
as  yet,  received  any  public  or  general  sanction  in  other  nations;  and  yet  they 
are  founded  in  such  a  just  view  of  the  duties  and  rights  of  nations,  belligerent 
and  neutral,  that  we  have  not  hesitated  to  enforce  them  by  the  penalty  of  con- 
fiscation. There  are  other  doctrines,  again,  which  have  mot  the  decided  hos- 
tility of  some  of  the  European  states,  enlightened  as  well  as  powerful,  such  as 
the  right  of  search,  and  the  rule,  that  free  ships  do  not  make  free  goods,  which, 
nevertheless,  both  Great  Britain  and  the  United  States  maintain,  and  in  my 
judgment  with  unanswerable  arguments,  as  settled  rules  in  the  law  of  Prize, 
and  scruple  not  to  apply  them  to  the  ships  of  all  other  nations.  And  yet,  if  the 
general  custom  of  nations  in  modern  times,  or  even  in  the  present  age,  recogniz- 
ed an  opposite  doctrine,  it  could  not,  perhaps,  be  affirmed,  that  that  practice 
did  not  constitute  a  part,  or,  at  least,  a  modification  of  the  law  of  nations. 

"But  I  thinli  it  may  be  unequivocally  affirmed,  that  every  doctrine,  that  may 
be  fairly  deduced  by  correct  reasoning  from  the  riglits  and  duties  of  nations. 
and  the  nature  of  moral  obligation,  may  theoretically  be  said  to  exist  in  the 
law  of  nations;  and  unless  it  be  relaxed  or  waived  by  the  consent  of  nations, 
which  may  be  evidenced  by  their  general  practice  and  customs,  it  may  be 
enforced  by  a  court  of  justice,  whenever  it  arises  In  judgment.  And  I  may 
go  farther  and  say,  that  no  practice  whatsoever  can  obliterate  the' fundamental 
distinction  lietween  right  and  wrong,  and  that  every  nation  is  at  liberty  to  ap- 
ply to  another  the  correct  principle,  whenever  both  nations  by  their  public 
acts  recede  from  such  practice,  and  admit  the  injustice  or  cruelty  of  it." 


14  INTRODUCTION 

and  usages  of  civilized  nations,  and  the  weight  of  their  testimony  in- 
creases every  time  that  their  authority  is  invoked  by  statesmen,  and 
every  year  that  passes  without  the  rules  laid  down  in  their  works  be- 
ing impugned  by  the  avowal  of  contrary  principles."  Wheaton's  Inter- 
national Law  (8th  Ed.)  §  15. 

Chancellor  Kent  says :  "In  the  absence  of  higher  and  more  authori- 
tative sanctions,  the  ordinances  of  foreign  states,  the  opinions  of  emi- 
nent statesmen,  and  the  writings  of  distinguished  jurists  are  regarded 
as  of  great  consideration  on  questions  not  settled  by  conventional  law. 
In  cases  where  the  principal  jurists  agree,  the  presumption  will  be  very 
great  in  favor  of  the  solidity  of  their  maxims ;  and  no  civilized  nation, 
that  does  not  arrogantly  set  all  ordinary  law  and  justice  at  defiance, 
will  venture  to  disregard  the  uniform  sense  of  the  established  writers 
on  international  law." ,!  1  Kent,  Com.  18. 

It  will  be  convenient,  in  the  first  place,  to  refer  to  some  leading 
French  treatises  on  international  law,  which  deal  with  the  question  now 
before  us,  not  as  one  of  the  law  of  France  only,  but  as  one  determined 
by  the  general  consent  of  civilized  nations.     *     *     * 

The  modern  German  books  on  international  law,  cited  by  the  coun- 
sel for  the  appellants,  treat  the  custom,  by  which  the  vessels  and  im- 
plements of  coast  fishermen  are  exempt  from  seizure  and  capture,  as 
\    well  established  by  the  practice  of  nations.    Heffter,  §  137;   2  Kalten- 
^  born,  §  237,  p.  480;  Bluntschli,  §  667;   Perels,  §  37,  p.  217.     *     *     * 
Two  recent  English  text-writers,  cited  at  the  bar,   (influenced  by 
what  Lord  Stowell  said  a  century  since,)  hesitate  to  recognize  that  the 
exemption  of  coast  fishing  vessels  from  capture  has  now  become  a  set- 
tled rule  of  international  law.    Yet  they  both  admit  that  there  is  little 
real  difference  in  the  views,  or  in  the  practice,  of  England  and  of  oth- 
j   er  maritime  nations;   and  that  no  civilized  nation  at  the  present  day 
I    would  molest  coast  fishing  yessels,  so  long  as  they  were  peaceably  pur- 
(    suing  their  calling,  and  there  was  no  danger  that  they  or  their  crews 
might  be  of  military  use  to  the  enemy.     Hall,  in  section  148  of  the 
fourth  edition   of   his   Treatise   on    International   Law,   after   briefly 
sketching  the  history  of  the  positions  occupied  by  France  and  England 
at  different  periods,  and  by  the  United  States  in  the  Mexican  War, 
goes  on  to  say :    "In  the  foregoing  facts  there  is  nothing  to  show  that 
much  real  difference  has  existed  in  the  practice  of  the  maritime  coun- 
tries.    England  does  not  seem  to  have  been  unwilling  to  spare  fishing 
vessels  so  long  as  they  are  harmless,  and  it  does  not  appear  that  any 
State  has  accorded  them  immunity  under  circumstances  of  inconven- 
ience to  itself.     It  is  likely  that  all  nations  would  now  refrain  from 
molesting  them  as  a  general  rule,  and  would  capture  them  so  soon  as 
any  danger  arose  that  they  or  their  crews  might  be  of  military  use  to 
the  enemy;   and  it  is  also  likely  that  it  is  impossible  to  grant  them  a 
more  distinct  exemption."     So  T.  J.  Lawrence,  in  section  206  of  his 
Principles  of  International  Law,  says:     "The  difference  between  the 


X 


THE  NATURE  AND  EXTENT  OF  INTERNATIONAL  LAW  15 

English  and  the  French  view  is  more  apparent  than  real ;  for  no 
civilized  belligerent  would  now  capture  the  boats  of  fishermen  plying 
their  avocation  peaceably  in  the  territorial  waters  of  their  own  State ; 
and  no  jurist  would  seriously  argue  that  their  immunity  must  be  re- 
spected if  they  were  used  for  warlike  purposes,  as  were  the  smacks 
belonging  to  the  northern  ports  of  France,  when  Great  Britain  gave  the 
order  to  capture  them  in  1800." 

But  there  are  writers  of  various  maritime  countries,  not  yet  cited, 
too  important  to  be  passed  by  without  notice.     *     *     * 

This  review  of  the  precedents  and  authorities  on  the  subject  appears 
to  us  abundantly  to  demonstrate  that  at  the  present  day,  by  the  general 
consent  of  the  civilized  nations  of  the  world,  and  independently  of 
any  express  treaty  or  other  public  act,   it  is  an  established  rule  of 
international  law,  founded  on  considerations  of  humanity  to  a  poor  and 
industrious  order  of  men,  and  of  the  mutual  convenience  of  belligerent  \ 
states,  that  coast  fishing  vessels,  with  their  implements  and  supplies,  l 
cargoes  and  crews,  unarmed  and  honestly  pursuing  their  pieaceful  call-  / 
ing  of  catching  and  bringing  in  fresh  fish,  are  exempt  from  capture/ 
as  prize  of  war. 

"The  exemption,  of  course,  does  not  apply  to  coast  fishermen  or  their 
vessels,  if  employed  for  a  warlike  purpose,  or  in  such  a  way  as  to  give 
aid  or  information  to  the  enemy ;    nor  when  military  or  naval  opera-       'y( 
tions  create  a  necessity  to  which  all  private  interests  must  give  way.i 

Nor  has  the  exemption  been  extended  to  ships  or  vessels  employed 
on  the  high  sea  in  taking  whales  or  seals,  or  cod  or  other  fish  which  are 
not  brought  fresh  to  market,  but  are  salted  or  otherwise  cured  and 
made  a  regular  article  of  commerce. 

.  This  rule  of  international^law  is  one  which  prize  courts,  administer- 
ing the  law  of  nations,  are  bound  to  take  judicial  notice  of,  and  to  give 
effect  to,  in  the  absence  of  any  treaty  or  other  public  act  of  their  own 
government  in  relation  to  the  matter. 

Calyo,  in  a  passage  already  quoted,  distinctly  afifirms  thatjhe  exemp- 
tion of  coast  fishing  vessels  from  capture  is  perfectly  justiciable,  or, 
in  other  words,  of  judicial  jurisdiction  or  cognizance.  Calvo,  §  2368. 
Norare  judicial  precedents  wanting  in  support  of  the  view  that  this 
exemption,  or  a  somewhat  analogous  one,  should  be  recognized  and 
declared  by  a  prize  court.     *     *     * 

To  this  subject,  in  more  than  one  aspect,  are  singularly  applicable 
the  words  uttered  by  Mr.  Justice  Strong,  speaking  for  this  court : 
"Undoubtedly,  no  single  nation  can  change  the  law  of  the  sea.  That* 
law  is  of  universal  obligation,  and  no  statute  of  one  or  two  nations  can 
create  obligations  for  the  world.  Like  all  the  laws  of  nations,  it  rests  \ 
upon  the  common  consent  of  civilized  communities.  It  is  of  force,  not 
because  it  was  prescribed  by  any  superior  power,  but  because  it  has 
been  generally  accepted  as  a  rule  of  conduct.  Whatever  may  have 
been  its  origin,  whether  in  the  usages  of  navigation,  or  in  the  ordinances 


16  INTRODUCTION 

of  maritime  states,  or  in  both,  it  has  become  the  law  of  the  sea  only 
by  the  concurrent  sanction  of  those  nations  who  may  be  said  to  con- 
stitute the  commercial  world.  Many  of  the  usages  which  prevail,  and 
which  have  the  force  of  law,  doubtless  originated  in  the  positive  pre- 
scriptions of  some  single  state,  which  were  at  first  of  limited  effect, 
but  which,  when  generally  accepted,  became  of  universal  obligation." 
"This  is  not  giving  to  the  statutes  of  any  nation  extra-territorial  effect. 
It  is  not  treating  them  as  general  maritime  laws;  but  it  is  recognition 
of  the  historical  fact  that  by  common  consent  of  mankind  these  rules 
have  been  acquiesced  in  as  of  general  obligation.  Of  that  fact,  we 
think,  we  may  take  judicial  notice.  (  Foreign  municipal  laws  must  in- 
deed be  proved  as  facts,  but  it  is  not  "so  with  the  law  of  nations. 'N  The 
Scotia,  14  Wall.  170]  187,  188,  20  L.  Ed.  822.^o     *    *    *         ^y 

The  two  vessels  and  their  cargoes  were  condemned  by  the'  District 
Court  as  prize  of  war ;  the  vessels  were  sold  under  its  decrees ;  and 
it  does  not  appear  what  became  of  the  fresh  fish  of  which  their  car- 
goes consisted. 

Upon  the  facts  proved  in  either  case,  it  is  the  duty  of  this  court, 
sitting  as  the  highest  prize  court  of  the  United  States,  and  administer- 
ing the  law  of  nations,  to  declare  and  adjudge  that  the  capture  was 
unlawful,  and  without  probable  cause;  and  it  is  therefore,  in  each 
case, 

Ordered,  that  the  decree  of  the  District  Court  be  reversed,  and  the 
proceeds  of  the  sale  of  the  vessel,  together  with  the  proceeds  of  any 
sale  of  her  cargo,  be  restored  to  the  claimant,  with  damages  and 
costs. 

Mr.  Chief  Justice  Fuller,  with  whom  concurred  Mr.  Justice  Har- 
lan and  Mr.  Justice  McKenna,  dissenting.*  *     *     * 

1°  Maritime  law  (unless  part  of  international  law)  has  the  effect  of  law  only 
in  so  far  as  it  is  aclopted  by  the  laws,  usages,  and  customs  of  the  particular 
country.  Norwich  Co.  v.  Wright,  13  Wall.  104.  20  L.  Ed.  585  (1872),  especially 
The  Lottawanna,  21  Wall.  558,  572-578,  22  L.  Ed.  654  (1874),  where  the  subject 
is  discussed  in  detail ;  The  Scotland,  105  U.  S.  24,  26  L.  Ed.  1001  (1881),  where 
cases  in  13  and  21  Wall,  are  cited  and  approved. 

In  The  Manhasset  (D.  C.)  18  Fed.  918,  920-923  (1884)  this  subject  was  con- 
sidered and  the  following  resum4  is  found  on  page  922  of  the  judgment  of 
Hughes,  J.:  "From  all  that  has  been  said,  these  things  would  seem  to  be 
clear :  First,  that  the  maritime  law,  existing  as  it  does  by  the  common  consent 
of  nations,  and  heing  a  general  law,  cannot  be  changed  oi*  modified  as  to  its 
general  operation  by  any  particular  sovereignty ;'  second,  that  it  has  force  in 
any  country  only  by  its  adoption,  express  or  implied,  by  that  country,  and  may 
be  modified  in  its  special  operation  in  that  jurisdiction  at  the  will  of  that 
special  sovereignty;  third,  that  it  is  by  such  adoption  part  of  the  federal  law 
of  the  United  States,  and  incapable  of  modificatiqirhy~state-enactment, — Con- 
gress having  exclusive  power,  under  the  Constitution,'  ''to  regulate  commerce 
with  foreign  nations,  and  among  the  several  states,  and  with  the  Indian 
tribes;'  and  the  judicial  power  of  the  United  States,  'exclusive  of  the  state 
courts,'  extending  'to  all  cases  of  admiralty  and  maritime  jurisdiction.' " 

The  leading  cases  on  mercantile  and  maritime  law  are  collected  and  annotat- 
ed in  Tudor's  Mercantile  Cases  (3d  Ed.,  1884). 

For  the  origin,  nature,  and  extent  of  admiralty  jurisdiction  in  the  United 
States,  see  Ames,  Cases  on  Admiralty  (1901). 


COMITY  17 

SECTION  2.— COMITY. 


-  Gray,  J.,  in  THE  PAQUETE  HABANA,  1900,  175  U.  S.  677, 
693,  694,  20  Sup.  Ct.  290,  44  I..  Ed.  320: 

"Lord  Stowell's  judgment  in  The  Young  Jacob  and  Johanna,  1  C. 
Rob.  20,  above  cited,  was  much  relied  on  by  the  counsel  for  the  United 
States,  and  deserves  careful  consideration. 

/  "The  vessel  there  condemned  is  described  in  the  report  as  'a  small 
Dutch  fishing  vessel  taken  April,  1798,  on  her  return  from  the  Dogger 
Bank  to  Holland';  and  Lord  Stowell,  in  delivering  judgment,  said: 
'In  former  wars,  it  has  not  been  usual  to  make  captures  of  these  small 
fishing  vessels ;  but^this  rule  was  a  rule  of  comity  only,  and  not  of  legal 
decision ;  it  has  prevailed  from  views  of  mutual  accommodation  between 
neighboring  countries,  and  from  tenderness  to  a  poor  and  industrious 
order  of  people.  In  the  present  war  there  has,  I  presume,  been  suffi- 
cient reason  for  changing  this  mode  of  treatment,  and,  as  they  are 
brought  before  me  for  my  judgment,  they  must  be  referred  to  the 
general  principles  of  this  court ;  they  fall  under  the  character  and  de- 
scription of  the  last  class  of  cases ;  that  is.  of  ships  constantly  and  ex- 
clusively  employed  in  the  enemy's  trade.'  And  he  added:  'It  is  a 
farther  satisfaction  to  me  in  giving  this  judgment  to  observe  that  the 
facts  also  bear  strong  marks  of  a  false  and  fraudulent  transac- 
tion.'    *     *     * 

"But  some  expressions  in  his  opinion  have  been  given  so  much 
weight  by  English  writers,  that  it  may  be  well  to  examine  them  particu- 
larly. The  opinion  begins  by  admitting  the  known  custom  in  former 
wars  not'  to  capture  such  vessels — adding,  however,  'but  this  was  a  rule 
of  comity  only,  and  not  of  legal  decision.'  Assuming  the  phrase  'legal 
decision'  to  have  been  there  used,  in  the  sense  in  which  courts  are  ac- 
customed to  use  it,  as  equivalent  to  'judicial  decision,'  it  is  true  that, 
so  far  as  appears,  there  had  been  no  such  decision  on  the  point  in 
England.  The  word  'eomity-  was  apparently  used  by  Lord  Stowell  as 
synonymous  with  courjtesy  or  good  will.  But  the  period  of  a  hundred 
years  which  has  since  elapsed  is  amply  sufficient  to  have  enabled  what 
originally  may  have  rested  in  custom  or  comity,  courtesy  or  concession, 
to  grow,  by  the  general  assent  of  civilized  nations,  into  a  settled  rule 
of  international  law.  As  well  said  by  Sir  James  Mackintosh:  'In 
the  present  century  a  slow  and  silent,  but  very  substantial  mitigation 
has  taken  place  in  the  practice  of  war ;  and  in  proportion  as  that  miti- 
gated practice  has  received  the  sanction  of  time,  it  is  raised  from  the 
rank  of  mere  usage,  and  becomes  part  of  the  law  of  nations.'  Dis- 
course on  the  Law  of  Nations,  38;  1  Miscellaneous  Works,  360."  ^^ 

11  For  the  relation  of  international  law  to  the  municipal  law  of  Great  Britain 
and  the  United  States,  see  Cyril  Moses  Picciotto,  The  Relation  of  International 
Scott  Int. Law — 2 


18  INTRODUCTION 

Lftw  to  the  Law  of  England  and  of  the  United  States  of  America  (1915); 
Philip  Quincy  Wright,  The  Enforcement  of  International  Law  through  Munic- 
ipal Law  in  the  United  States  (1916). 

For  the  general  relation  of  international  law  to  municipal  law,  see  Heinrich 
Triepel,  Volkerrecht  und  Landesrecht  (1899),  French  translation  under  title  of 
Droit  International  et  Droit  Interne,  by  Rene  Bruuet  (1920).  See,  also,  a 
briefer  treatment  of  the  same  subject  by  Wilhelm  Kaufman,  Die  Rechtskraft 
des  Internationalen  Rechts  und  das  Verhtlltnis  der  Staatsgesetzgebungen  und 
der  Staatsorgane  zu  demselben  (1899). 

The  tendency  to  regard  international  law  as  having  the  force  and  effect  of 
municipal  law  is  admirably  stated  in  article  4  of  the  present  Constitution  of 
the  German  Republic,  adopted  August  11,  1919 : 

"Die  allgemein  anerkannten  Regeln  des  Volkerrechts  gelten  als  bindende 
Bestandteile  des  deutschen  Reichsrechts." 

This  article  may  be  freely,  but  accurately,  rendered  as  follows : 

"The  generally  recognized  rules  of  international  law  form  an  integral  part 
of  the  law  of  the  German  Reich  and  are  binding  as  such." 

See,  also,  to  the  same  effect,  article  9  of  the  Constitution  of  the  Republic 
of  Austria,  of  October  1,  1920.    The  German  text  is  as  follows : 

"Die  allgemein  anerkannten  Regeln  des  Volkerrechtes  gelten  als  Bestand- 
teile des  Bundesrechtes." 

Of  this  the  following  is  an  English  equivalent : 

"The  generally  recognized  rules  of  international  lavi'  form  an  integral  part 
of  the  federal  law." 

Scott  Int.Law 


PART  I 

RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME 
OF  PEACE 


CHAPTER  1 
STATES 


SECTION  1.— NATURE  AND  KINDS 


YRISARRI  V.  CLEMENT. 
(Court  of  Common  Pleas,  1825.    2  Car.  &  P.  223.) 

In  an  action  brought  by  the  plaintifif  against  defendant  for  a  libel 
published  in  the  Morning  Chronicle,  it  appeared  that  the  plaintifif 
had  been  appointed  minister  and  diplomatic  agent  to  Great  Britain; 
that  he  employed  Messrs.  Hullett  and  Widder  to  raise  a  loan  of  ilOO,- 
000  for  the  service  of  Chili;  that  the  Morning  Chronicle  imputed 
fraud  to  plaintiff  in  the  application  of  the  money  raised  by  him.^ 

Best,  C.  J.  It  occurs  to  me  at  present,  that  there  is  this  distinction. 
If  a  foreign  state  is  recognized  by  this  country,  it  is  not  necessary  to 
prove  that  it  is  an  existing  state;  but  if  it  is  not  so  recognized,  such 
proof  becomes  necessary.  There  are  hundreds  in  India,  and  elsewhere, 
that  are  existing  states,  though  they  are  not 'recognized.  •  I^jake  the 
rule  to  be  this — if  a  body  of  persons  assemble  together  to  protect 
themselves,  and  support  their  own  independence,  and  make  laws,  and 
have  courts  of  justice,  that  is  evidence  of  their  being  a  state.  /We  have 
had,  certainly,  some  evidence  here  to-day  that  these  provinces  formerly 
belonged  to  Spain ;  but  it  would  be  a  strong  thing  to  say,  that  because 
they  once  belonged,  therefore  they  must  always  belong.  We  have  rec- 
ognized lately  some  of  these 'states.  It  makes  no  difference  whether  they 
formerly  belonged  to  Spain,  if  they  do  not  continue  to  acknowledge  it, 
and  are  in  possession  of  a  force  sufficient  to  support  themselves  in  op- 

1  A  shortened  statement  of  facts  is  substituted  for  that  of  the  original 
report,  and  only  so  much  of  the  opinion  is  given  as  relates  to  Chile  as  a 
"foreign  state." 

(19) 


20      -      ■  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME  OP  PEACE       (Part  1 

position  to  it.    This  is  my  present  opinion ;  but  I  will  give  ray  brother 
Taddy  leave  to  move  the  court  upon  the  subject.* 


REPUBLIC  OF  HONDURAS  v.  SOTO. 

(Court  of  Appeals  of  New  York,  1889.    112  N.  T.  310,  19  N.  E.  845,  2  L.  R. 
A.  642,  8  Am.  St.  Rep.  744.) 

RuGER,  C.  J.^  Section  3268  of  the  Code  of  Civil  Procedure  provides 
that  a  defendant,  in  an  action  brought  in  a  court  of  record,  may  re- 
quire security  for  costs,  in  cases,  among  others,  where  the  plaintiff 
was,  when  the  action  was  commenced,  either  "a.  person  residing  with- 
out the  state,"  or  "a  foreign  corporation."  The  plaintiff  claims  to  be 
a  foreign  independent  state. 

It  is  urged  by  the  plaintiff  that  it  is  neither  a  person  nor  a  foreign 
corporation,  within  the  meaning  of  the  Code.  It  is  not  disputed  but 
that  the  plaintiff  is  an  independent  government,  recognized  as  such  by 
the  United  States,  and  capable  of  entering  into  contracts  and  acquiring 
property,  as  well  as  competent,  through  the  rule  of  comity,  of  bringing 
and  maintaining  actions  in  the  courts  of  this  country ;  but  it  is  claimed 
that  it  does  not  come  within  the  description  of  legal  entities  authorized 
to  require  security  for  costs.  That  it  is  within  the  spirit  of  the  enact- 
ment, we  think  cannot  be  disputed,  and  we  are  also  of  the  opinion 
that  it  is  within  the  letter  as  well. 

Vattel  defines  "nations  or  states  to  be  bodies  politic,  societies  of 
men  united  together  for  the  purpose  of  promoting  their  mutukl  safety 
and  advantage  by  the  joint  effort  of  their  combined  strength.  Such  a 
society  has  her  affairs  and  her  interests.  She  deliberates  and  takes 
resolutions  in  common,  thus  becoming  a  moral  person,  who  possesses 
an  understanding  and  a  will  peculiar  to  himself,  and  is  susceptible  of 
obligations  and  rights."  Law  of  Nations,  1 ;  Wheaton's  International 
Law,  c.  2,  §§  I,  2;    Bouvier's  Institutes,  title  "Nation." 

That  such  a  being  constitutes  a  legal  entity,  capable  of  acquiring 
and  enjoying  property  and  protecting  itself  from  injuries  thereto  in 
the  courts  of  foreign  countries,  has  long  been  recognized  and  estab- 
lished in  the  tribunals  of  civilized  nations.  Republic  of  Mexico  v.  De 
Arangoiz,  12  N.  Y.  Super.  Ct.  636;  Hullet  v.  King  of  Spain,  1  Dow. 
&  C.  169;   Cherokee  Nation  v.  Georgia,  5  Pet.  52,  8  L.  Ed.  25. 

2  On  leave  given  the  court  "thought  that  the  opinion  of  the  Chief  Jus- 
tice which  he  gave  at  the  trial  was  correct.  But  they  decided  on  another 
ground,  viz.  the  incorrectness  of  some  material  innuendoes,  which  was  not 
adverted  to  at  nisi  prius,  and  therefore  made  the  rule  absolute  for  a  new 
trial."     2  Car.  &  P.  229. 

For  the  characteristics  of  nation,  tribe,  or  band,  see  Montoya  v.  United 
States,  180  U.  S.  261,  21  Sup.  Ct.  358,  45  L.  Ed.  521  (1901),  post,  p.  538. 

For  application  of  international  law  to  backward  nations  or  states,  see  Sir 
William  Scott's  judgment  in.The  jl£l.ena,  4  C.  Rob.  4  (1801). 

3  The  facts  of  the  case  and  part  of  the  opinion  are  omitted. 


Ch.  1)  STATES    '  21 

There  can  be  no  doubt  but  that  under  title  2,  chapter  10,  part  3,  of 
the  Revised  Statutes,  proYiding  for  security  for  costs  in  an  action, 
brought  by  any  plaintiff,  not  residing  within  the  jurisdiction  of  the 
court,  that  foreign  states  and  nations  were  required  to  give  such  secu- 
rity, and  we  do  not  think  that  the  provisions  of  the  Code  were  intended 
to  change  the  law  in  that  respect. 

"Section  3268  of  the  Code  is  stated  to  be  a  re-enactment  of  the  pre- 
vious statute,  and  it  cannot,  we  think,  have  been  intended  thereby  to 
take  away  the  right  which  resident  defendants  had  to  require  security 
for  costs.  No  reason  is  seen  for  such  a  change,  and  we  do  not  think 
any  was  intended  to  be  made.  The  word  "person"  was,  we  think,  used 
in  its  enlarged  sense,  as  comprising  all  legal  entities  except  foreign 
corporations,  which  were  authorized  to  bring  actions  in  this  state.  In 
that  sense  if  embraces  moral  persons  having  legal  rights,  capable  of 
entering  into  contracts  and  incurring  obligations,  as  well  as  natural  per- 
sons. The  statute  must  be  construed  with  reference  to  the  objects  it 
had  in  view,  the  evils  intended  to  be  remedied  and  the  benefits  expected 
to  be  derived  from  it;  and,  as  thus  construed,  we  can  see  no  reason 
whxJhe  plaintiff  is  not  included  within  the  description  of  persons  in- 
tended to  be  subjected  to  its  obligations.     *     *     * 

M 


THE  IONIAN  SHIPS. 
(High  Court  of  Admiralty,  1855.    2  Spinks,  212.) 

Some  ships  under  the  flag  of  the  Ionian  states  were  captured  in  the 
Black  Sea  by  some  of  her  Majesty's  cruisers,  and  brought  in  for  adju- 
dication, on  the  ground  that  the  lonians  being  British  subjects  they 
were  illegally  trading  with  the  enemy.  On  the  first  case.  The  Leucade, 
coming  on  for  hearing,  the  Queen's  Advocate  submitted  that  it  was  a 
case  for  further  proof ;  but  the  Court  was  of  opinion  that  it  would  be 
useless  to  order  further  proof  until  the  preliminary  question  was  de- 
cided, whether  the  inhabitants  of  the  Ionian  Islands  were  to  be  con- 
sidered as  Britisli_subiejcts  or  not.  That  question  was,  thereforeTelab- 
orately  argued. 

Dr.  LusHiNGTON.  It  must  be  distinctly  understood  that  all  I  am 
about  to  say  on  the  present  occasion  applies  only  to  the  general  ques- 
tion, and  not  to  the  particular  circumstances  of  any  individual 
case.     *     *     * 

Now,  what  are  the  facts  necessary  to  constitute  the  propositions  for 
the  consideration  of  the  Court.  They  are  few  indeed.  The  vessel 
proceeded  against  is  an  Ionian  vessel,  under  the  Ionian  flag,  destined, 
for  the  purpose  of  the  present  inquiry  at  least,  to  Taganrog,  a  Russian 
port.  The  captors  say  that  such  a  voyage  by  an  Ionian  ship  subjects 
her  to  condemnation.  The  claimants  say  that  neither  by  the  Law  of 
Nations,  nor  any  other  law,  are  they  liable  to  condemnation ;  that  the 


/ 


22  EIGHTS   AND   DUTIES   OF   NATIONS   IN    TDIE   OF   PEACE        (Part  1 

Russian  port  of  Taganrog  \yas  not  blockaded;  that  they  did  not  carry 
contraband:  that  the  expedition  in  which  they  were  engaged  was  law- 
ful, and  that  they  are  entitled  to  restitution.  Such  is  merely  a  general 
statement  of  the  averment  of  each  part\'.  I  must  now  endeavour  to  set 
forth,  as  clearly  as  I  can,  the  reasons  and  principles  on  which  the  pray- 
ers for  condemnation  and  restitution  are  founded. 

The  counsel  for  the  captors  allege  that  all  Ionian  vessels  are  to  be 
considered  as  British  vessels ;  that  as  British  vessels  are  prohibited 
from  trading  with  Russia  during  the  war,  so  for  the  same  reason  are 
Ionian  vessels ;  in  other  words,  the  British  and  Ionian  vessels  are  to  be 
placed  in  the  same  categor}* ;  tliat  as  regards  a  power  hostile  to  Great 
Britain,  the  Ionian  islanders  stand  in  the  same  position  as  British 
subjects. 

If  this  proposition  be  true,  it  necessarily  follows,  as  a  corollar}-  from 
it,  t^at  all  trade  with  the  enemy  of  Great  Britain  not  allowed  to  British 
subjects  is  prohibited  to  the  inhabitants  of  the  Ionian  islands.  There 
is  no  doubt  that  a  British  vessel  could  not  trade  with  this  port  of  Tag- 
anrog; therefore,  if  British  and  Ionian  vessels  are  in  eadem  conditione. 
this  vessel  could  not  lawfully  prosecute  her  enterprise,  and  the  cargo 
must  be  condemned. 

The  claimants  deny  all  these  propositions;  they  say  they  were  not 
British  subjects,  they  are  not  at  war  with  Russia,  and  they  have  a  right 
to  carrv'  on  with  Russia  any  trade  that  the  subjects  of  a  neutral  nation 
could  lawfully  be  engaged  in.     *     *     * 

But  the  question  I  have  to  decide  assumes  this  shape,  not  whether 
Great  Britain  has  power  to  declare  the  Ionian  states  in  hostility  with 
Russia,  but  whether.  Great  Britain  being  at  war  with  Russia,  it  fol- 
lows, as  an  inevitable  consequence,  that  the  Ionian  states  are  placed 
at  war  with  Russia  also.     *     *     * 

Therefore,  and  for  the  reasons  I  have  now  stated,  I  have  only  to  con- 
sider the  last  proposition,  whether  Great  Britain,  being  at  war  with 
Russia,  the  Ionian  states  are,  ex  necessitate,  at  war  also,  exactly  in  the 
same  way  as  Jersey,  Guernsey,  Jamaica  and  Canada  would  be  placed  in 
hostility  by  a  declaration  of  war  against  Great  Britain  by  any  other 
power.  This  view  of  the  case  opens  a  ver\'  wide  question;  for  if  I 
should  hold  that  the  declaration  of  war  by  Great  Britain  against  Rus- 
sia would  at  once  place  the  Ionian  Islands  in  a  state  of  war  with  Russia, 
then  it  follows,  as  it  appears  to  me,  as  an  inevitable  consequence,  thaL 
if  war  be  declared  by  Great  Britain  against  China,  against  the  United 
States  of  America,  against  any  other  power,  the  subjects  of  the  Ionian 
states  must  be  constituted,  ipso  facto,  enemies  of  such  nation,  for  it 
has  not  been  and  cannot  be  contended  that  the  empire  of  Russia  stands 
in  any  peculiar  relation,  so^  to  make  war  with  her  an  exception. 

The  political  history  of  these  islands  was  traced  from  an  early  pe- 
riod with  great  care  by  the  counsel  on  both  sides ;  it  will  not,  in  my  view 
of  the  case,  be  necessary  for  me  to  recapitulate  it.    I  proceed  upon  the 


Ch.  1)  STATES  23 

assumption  which  I  beheve  to  be  accurate,  for  it  matters  not  if  it  be  not 
precisely  accurate  in  all  its  particulars,  but  to  this  effect  that  all  these 
islands  were  conquered  by  Great  Britain  during  the  war  ending  1815. 
I  proceed  on  that  assumption  ;  whether  Corfu  surrendered  at  that  time, 
or  some  other,  I  need  not  inquire.  I  proceed  on  the  assimiption  that 
Great  Britain  dealt  with  them  as  conquered.  Had  they  continued  after 
the  peace  in  the  same  state,  they  would  have  been  a  part  of  the  domin- 
ions of  Great  Britain,  governed  as  other  conquered  territories  were 
governed,  by  the  Crown  and  acts  of  Parliament. 

Great  Britain,  however,  did  not  retain  these  islands  in  the  ordinary 
course  of  conquered  territories,  but  she  exercised  a  right  indisputably 
belonging  to  her  of  making,  in  conjunction  with  other  powers,  a  new 
and  different  status  for  these  islands.  Great  Britain  ceded  her  original 
rights,  and  merged  them  in  the  new  settlement.  I  am  of  opinion  that 
no  right  remained  in  Great  Britain  after  the  treaty  to  which  I  am 
about  to  refer,  except  the  rights  conferred  by  that  treaty;  that,  from 
the  nature  of  that  transaction  and  from  the  terms  of  the  treaty  itself. 
Great  Britain  can  at  this  period  exercise  no  rights  whatever  that  are 
not  to  be  found  within  the  four  corners  of  that  treaty ;  that  there  does 
not  remain  a  scintilla  of  the  original  right  of  conquest ;  that,  for  rea- 
sons with  which  T  have  no  concern,  Great  Britain  laid  at  the  feet  of 
the  contracting  parties,  as  she  had  a  right  to  do,  the  power  and  au- 
thority she  had  previously  acquired.  Henceforward  the  treaty  is  the 
sole  guide;  from  this  document  must  be  derived  all  the  rights  of  the 
contracting  parties,  and  all  the  rights  and  the  obligations  of  the  Ionian 
states. 

^^The  treaty  of_Paris  of  the  5th  of  November,  1815,  was  made  between 
Great  Britain,  Austria,  Russia,  and  Prussia.  I  apprehend  it  is  a  mere 
truism  to  say  it  was  equally  binding  upon  all  and  each  of  them. 

The  first  article  declares  that  these  islands„sliall.-form  a  free  and 
independent  state.  My  province  is  simply  that  of  construction — of 
ascertaining  to  the  best  of  my  ability  what  the  contracting  powers  in- 
tended by  the  contract  into  which  they  entered,  and  that  with  refer- 
ence in  the  first  instance  to  the  w^ords  of  the  contract  itself;  but  I 
must  look  to  the  whole  of  the  instrument  and  not  to  a  part.  Terms 
however  strong  and  clear  in  themselves,  whatever  meaning  may  be 
attributed — necessarily  attributed — to  them,  standing  alone,  may  be 
modified  by  other  parts  of  the  same  instrument.  The  construction, 
therefore,  I  put  on  the  first  article  is  that  the  Ionian  islands  shall  form 
a  single  free  and  independent  state,  according  to  the  plain  meaning  of 
tKose^terms,  subject  to  and  liable  to  be  controlled  by  the  rest  of  the 
treat}' ;    the  whole  treaty  creates  one  obligation. 

The  second  article  is  one  of  great  importance — the  declaration  that 
this  state  shall  be  placed  under  the  immediate  and  exclusive  protection 
of  the  King  of  Great  Britain.  I  am  strongly  inclined  to  think  that  the 
necessary  anH^mevitable  consequence  of  such  a  condition  is,  that  the 


24  RIGHTS  AND  DUTIES   OF  NATIONS   IN   TIME   OF  PEACE        (Part  1 

King  of  Great  Britain  has  the  right  of  making  war  and  peace ;  indeed, 
such  a  power  is  inseparable  from  protection;  for  how  could  the  duty 
of  protection  be  fulfilled  without  such  a  right?  and  how  could  the  Ion- 
ian islands  be  secured  from  aggression  but  by  the  exercise  of  that 
power?  and  how  could  their  tranquillity  be  secured  afterwards,  save 
by  the  power  to  conclude  peace,  with  all  its  concomitants. 

But  it  is  another  and  wholly  different  question  whether,  in  conse- 
/  quence  of  this  protectorate  right,  the  Ionian  states  become,  ipso  facto. 
/  the  enemies  of  all  or  any  power  or  powers  with  which  Great  Britain 
\  may  happen  to  be  at  war ;  and  it  is  also  another  and  different  question 
1  whether,  if  Great  Britain  were,  on  account  of  Ionian  grievances  alone, 
to  adopt  measures  for  their  protection  against  any  other  state,  the  king- 
dom of  Great  Britain  would  necessarily  be  at  war  with  such 
state.     *     *     * 

Some  of  the  secondary  propositions  of  this  treaty  I  may  omit  to  no- 
tice with  much  convenience. 

By  the  third  article  the  united  Ionian  states  were,  with  the  approba- 
tion of  Great  Britain,  to  regulate  their  internal  organization. 

By  the  fourth  there  is  to  be  a  legislative  assembly  and  a  new  consti- 
tutional charter,  also  to  be  ratified  by  the  King  of  Great  Britain.  Un- 
til such  charter  was  ratified  no  alteration  was  to  be  made  in  the  existing 
constitution  save  by  the  King  in  Council.  Until  that  period,  therefore, 
as  to  internal  concerns,  these  islands  remained  nearly,  though  not  al- 
together, in  the  position  of  conquered  islands  belonging  to  the  crown 
of  Great  Britain. 

The  fifth  article  declares  that  the  Britannic  Majesty  shall  have  a 
right  to  occupy  the  fortresses  of  the  islands,  to  maintain  garrisons, 
and  have  the  control  of  the  Ionian  forces. 

By  the  sixth,  a  particular  convention  is  to  regulate  the  maintenance 
of  the  forces,  payment  of  the  garrisons,  and  the  number  of  men  in 
time  of  peace. 

This  is  a  remarkable  limitation,  because  it  evidently  leads  to  the  con- 
clusion that  in  time  of  war,  non  constat  what  war,  Great  Britain  was 
not  to  be  subject  to  any  such  restriction. 

The  seventh  article  is  one  deserving  great  attention.  The  trading 
flag  of  the  Ionian  islands  was  acknowledged  by  all  the  contracting  par- 
ties as  the  flag  of  a  free  and  independent  state.  The  eft"ect  of  this  pro- 
vision, I  apprehend,  is,  if  war  existed  between  Russia  and  Austria,  Great 
/Britain  having  no  part  in  it,  the  Ionian  flag  would  be  respected  as  the 
j  flag  of  a  neutral  power.  In  one  respect,  and  one  only,  therefore,  the 
neutral  character  would  clearly  belong  to  the  subjects  of  these  islands. 
IThe  description  of  the  flag  to  be  carried  I  need  not  enlarge  upon.  1 
must  also  observe  that  the  whole  diplomatic  power  is  lodged  in  Great 
Britain  by  virtue  of  this  treaty. 

The  constitutional  charter  does  not,  in  my  opinion,  essentially  influ- 
ence any  view  I  may  take  of  the  question  on  which  I  am  unfortunate- 


Ch.  1)  STATES  25 

ly  called  to  pronounce  my  opinion.  The  status  of  the  subjects  of  the 
Ionian  states  must  be  governed  by  the  treaty,  not  by  the  charter,  so  far 
as  any  question  may  arise  affecting  the  right  or  interest  of  the  powers, 
parties  to  that  treaty. 

I  will  now  make  a  short  summary  of  this  treaty;  it  will  show  some 
of  the  anomalies.  A  single  free  and  independent  state,  having  the 
flag  of  a  free  and  independent  state, — the  military,  naval,  and  diplo- 
matic power  all  vested  in  the  protecting  state, — the  protected,  not  the 
subjects  of  the  protector, — not  British  subjects,  for  that  is  perfectly 
clear.  I  apprehend  that  I  must  endeavour  to  give  effect  to  all  these 
main  provisions  of  this  treaty.  I  must  maintain  the  quality  of  inde- 
pendence, save  as  modified  by  the  treaty  itself,  and,  by  parity  of  rea- 
soning, the  independence  of  the  flag,  or  rather  the  rights  and  attributes 
of  the  flag  of  an  independent  state. 

Having  carefully  addressed  myself  to  these  considerations,  I  come 
to  the  question  of  whether  I  ought  to  condemn  the  ship  and  cargo 
proceeded  against  as  the  property  of  British  subjects  trading  with  the 
enemy,  as  the  property  of  allies  trading  with  the  enemy,  or  as  the  prop- 
erty of  subjects  of  the  Ionian  states  being  at  war  with  Russia.  There 
is  no  other  state  of  things  in  which  I  conceive  it  to  be  possible  to  pro- 
nounce a  decree  of  condemnation. 

With  respect  to  the  first  ground  of  condemnation,  I  am  of  opinion 
that  this  property  cannot  be  condemned,  for,  according  to  all  the  au- 
thorities and  all  the  principles  on  which  the  authorities  are  founded, 
no  property  can  be  condemned  on  that  ground,  unless  it  belong  to 
British  subjects,  in  the  proper  sense  of  the  term — which  the  lonians 
are  not.  As  to  the  second  ground,  I  am  of  opinion  I  cannot  condemn, 
because  the  lonians  are  not  allies  in  the  war.  No  act  whatsoever  of 
the  Ionian  Government  or  of  the  protecting  power  has  brought  them 
within  the  fair  meaning  of  that  term.  On  the  third  ground  I  am  of 
opinion  that  it  does  not  follow  of  necessity  that  the  Ionian  subjects 
are  at  once,  by  a  declaration  of  war  by  the  Crown  of  Great  Britain, — 
confined  to  a  declaration  of  war  by  Great  Britain  only  against  another 
power, — comprised  within  that  declaration,  and  constituted  enemies  of 
that  power.  This  being  so,  I  know  of  no  act  of  the  protecting  power 
to  place  the  lonians  in  that  predicament.  Great  Britain  may  have  au- 
thority to  do  so,  as  the  protecting  power  is  possessed  of  all  the  rights 
of  treating  with  foreign  nations,  and  of  the  right  to  place  them  in  the 
category  of  enemies  ;  but  she  has  not  thought  proper  to  do  so. 

This  observation,  I  think,  is  entitled  to  more  weight  from  a  consid- 
eration of  the  manner  in  which  Great  Britain  has  exercised  the  great 
powers  secured  to  her  by  the  treaty.  I  refer  to  the  convention  dated 
January,  1852,  between  the  Queen  and  the  King  of  the  Netherlands. 
The  terms  of  that  treaty  are : 

"The  inhabitants  and  vessels  of  the  Ionian  islands  shall  enjoy  in 
the  dominion  of  his  Majesty  the  King  of  the  Netherlands  all  the  advan- 
tages which  are  guaranteed  by  the  treaty  of  tlie  27th  of  October,  1837, 


26  RIGHTS   AND   DUTIES    OF   NATIONS   IN    TIME    OF   PEACE        (Part  1 

between  Great  Britain  and  the  Netherlands,  and  by  the  convention 
additional  to  that  treaty,  signed  in  March,  1851,  so  soon  and  for  as 
long  as  the  Government  of  the  Ionian  islands  shall  grant  to  the  inhab- 
itants and  vessels  of  the  Netherlands  the  same  advantages  which  were 
granted  in  these  islands  to  the  inhabitants  and  vessels  of  Great  Britain." 

The  commencement,  too,  of  that  treaty  is  not  unworthy  of  observa- 
tion. The  Queen  negotiates  on  behalf  of  the  Ionian  states  as  perfectly 
separate  and  distinct  from  the  dominions  of  the  Crown  of  Great  Brit- 
ain.   It  commences : 

"Her  Majesty  the  Queen  of  the  United  Kingdom  of  Great  Britain 
and  Ireland  on  the  one  part,  and  his  Majesty  the  King  of  the  Nether- 
lands on  the  other  part,  being  desirous  of  promoting  the  relations 
of  commerce  and  navigation  existing  between  the  United  States  of  the 
Ionian  islands,  wtiich  are  under  the  protection  of  her  Britannic  Majes- 
ty and  the  kingdom  of  the  Netherlands,  have  agreed  to  conclude  a  con- 
vention for  that  purpose,  and  have  named  as  their  respective  pleni- 
potentiaries," etc. 

Nothing  can  be  more  manifest  than  this  preamble  to  show  that  the 
Queen  of  Great  Britain  has  negotiated  for  the  Ionian  islands  as  an  en- 
tirely separate  and  distinct  state. 

Certain  conclusions,  therefore,  appear  to  me  to  follow  from  a  con- 
sideration of  this  treaty :  First,  it  is  evident  that  her  Majesty  ascribes 
to  herself  the  right  of  making  treaties  on  behalf  of  the  Ionian  states. 
Secondly,  that  no  treaty  between  Great  Britain  with  another  state  does 
include  the  Ionian  islands,  except  specially  named.  I  think  that  is 
perfectly  evident,  because  otherwise  there  is  no  necessity  for  this  treaty 
if  it  was  included  in  the  former.  Thirdly,  that  this  power,  vested  in 
the  Crown  of  Great  Britain,  is  limited  as  to  the  Ionian  states  in  the  same 
way  that  the  power  is  limited  with  respect  to  the  British  territories 
themselves,  namely,  the  Crown  may  contract,  but  as  to  all  internal 
legislation  necessary  to  carry  such  contracts  into  execution,  it  rests 
with  the  Government  of  the  Ionian  states  to  adopt  the  required  meas- 
ures as  it  would  so  in  similar  cases  rest  with  the  British  Par- 
liament.    *     *     * 

But  confining  myself  to  the  consideration  of  the  question  whether, 
by  the  terms  of  the  treaty,  the  subjects  of  the  Ionian  states,  as  a  nec- 
essary consequence  of  the  provisions  of  that  treaty,  became  the  ene- 
mies of  the  protecting  power,  at  least  I  ought  to  consider  from  what 
cause  such  necessity  springs.  Again  I  must  repeat  the  terms  of  the 
proposition,  to  prevent  mistake.  I  am  not  putting,  or  attempting  to 
put,  bounds  to  the  authority  of  Great  Britain  under  this  treaty.  I 
am  considering  the  import  of  the  treaty  only  where  Great  Britain  has 
not  declared  the  exercise  of  her  power.  In  this  view  of  the  case,  is 
it  at  all  immaterial,  at  all  inconsistent  with  the  powers  of  the  treaty,  at 
all  injurious  to  the  subjects  of  the  protected  states  themselves,  that 
whatever  might  be  the  relations  of  Great  Britain  towards  Russia  or 
any  other  country,  peace  with  the  Ionian  states  should  continue,  at 


Ch.  1)  STATES  27 

least  until  war  was  declared  on  their  part  by  Great  Britain?  Are  there 
not  many  instances  in  which  Great  Britain  herself  might  wish  not  to 
involve  the  Ionian  states  in  a  warfare  in  which  she  herself  is  engaged, 
but  in  which. they  have  no  interest?  But  above  all,  I  must  repeat  what 
I  have  so  often  said  before  in  substance — could  it  have  been  the  in- 
tention of  the  contracting  powers,  evinced  by  the  terms  of  the  treaty, 
that  a  state  of  warfare  should  necessarily  follow  upon  hostilities  break- 
ing out  between  themselves  and  others  without  giving,  in  the  terms  of 
the  proposition,  even  an  option  to  the  protecting  powers  to  leave  the 
Ionian  states  at  peace?  To  make  the  extension  of  all  wars  to  the 
Ionian  states  inevitable  would  be  to  deprive  the  protecting  power  of 
her  discretion  to  leave  them  at  peace. 

Now,  I  am  told  that  anomalous  consequences  must  follow,  if  the 
Ionian  states  are  allowed  to  maintain  a  neutral  character.  I  admit  it 
must  be  so.  But  will  such  consequences  be  more  repugnant  to  the 
treaty,  than  to  hold  that  a  guaranteed  free  and  independent  state  is 
involved  necessarily  irT^war  by  the  aict  of  another  state,  contrary  to 
their  own  interests,  and  without  the  least  regard  to  them?  and  that 
not^by  the  act,  the  deliberate  act,  of  the  protecting  power,  but  merely 
by  an  inevitable  inference?  But  again,  are  anomalous  consequences 
resulting  from  a  treaty  a  reason  for  abrogating  its  main  provisions? 
For  construing  such  provisions,  if  possible,  so  as  not  to  produce  such 
consequences,  no  doubt  there  is  a  very  strono^  reason ;  for  abrogating 
them,  none.  Though  all  contracting  powers  may  be  bound  by  what 
they  have  done,  yet  surely  it  would  be  difficult  to  contend  that  such  a 
construction  as  this  must  be  taken  as  actually  foreseen,  and  intention- 
ally provided  for  too,  by  the  stipulations  of  the  treaty  to  the  effect  of 
entailing  on  the  Ionian  states  any  war  in  which  Great  Britain  may  be 
involved.  But  to  this  I  ought  to  add  that  if  anomalous  consequences, 
or  such  as  can  be  deemed  so,  could  dissolve  treaties,  I  fear  there 
would  be  little  security  for  compacts  amongst  states.  It  often  hap- 
pens, unfortunately,  from  the  want  of  care  and  caution,  treaties  are 
so  framed,  that  when  they  come  to  be  put  in  practice,  consequences 
wholly  unforeseen  by  the  contracting  parties  may  arise.     *     *     * 

I  have  mentioned,  at  least,  some  of  the  reasons  which  have  induced 
me  to  come  to  that  conclusion. 

I  shall  restore,  because  the  property  is  not  the  property  of  allies  in 
the  war,  for  neither  by  the  treaty  nor  by  the  law  of  nations  can  I  im- 
pose on  the  subjects  of  the  Ionian  states  that  character. 

Again,  I  shall  restore,  because  if  Great  Britain  had  the  right  by 
treaty  of  declaring  war  between  the  Ionian  islands  and  Russia,  she 
had  not  done  it. 

Because,  in  the  absence  of  all  such  declaration  or  solemn  act,  in 
whatever  form,  I  am  of  opinion  that  the  Ionian  subjects  are  not  placed 
in  any  state  of  war. 

Because  I  hold  it  to  be  t]\e  duty  of  every  Court  professing  to  admin- 
ister the  Law  of  Nations  to  cany  into  effect  and  operation  the  plainest 


28  RIGHTS   AND  DUTIES   OF  NATIONS   IN   TIME   OF   PEACE        (Part  1 

terms  of  a  treaty,  though  the  consequences  may  not  be  perceived.  Vari- 
ous anomalous  results  may  follow,  but  they  are  infinitely  less  important 
in  their  consequences  than  if  a  Court  of  Justice  should  take  upon  itself 
to  disregard  a  solemn  compact  carefully  expressed.  I  hardly  need  go 
further.*     *     *     * 

*  In  1864,  the  Ionian  Islands  were  annexed  to  Greece,  and  thereafter  ceas- 
ed to  be.  in  law  and  in  fact,  a  protected  state. 

For  the  history  of  the  Ionian  Islands,  in  so  far  as  it  Is  material  to  the 
present  purpose,  and  for  the  steps  by  which  they  became  incorporated  with 
Greece,  see  Sarah  Wambaugh,  A  Monograph  on  Plebiscites  (1920),  pp.  122- 
132.  S3S-863. 

The  stock  example  of  a  personal  union  of  states — that  Is  to  say,  the  union 
of  two  independent  states  in  the  person  of  one  and  the  same  sovereign — 
was  that  of  Hanover.  This  state  of  affairs  was  produced  by  the  accession  of 
George  Louis.  Elector  of  Hanover,  to  the  throne  of  Great  Britain,  as  George 
I,  in  1714,  as  by  act  of  Parliament  the  succession  was  vested  in  the  nearest 
Protestant  heir  of  the  royal  house  of  Stuart.  The  personal  union  continued 
until  the  death  of  William  IV.  Queen  Victoria  succeeded  him  as  British 
sovereign  in  1837.  His  nephew,  the  Duke  of  Cumberland,  succeeded  him  in  his 
capacity  of  King  of  Hanover.  Hanover,  as  such,  ceased  to  be  a  kingdom  by 
its  conquest  by  Prussia,  in  1866. 

The  union  between  Sweden  and  Norway,  from  1815  to  1905,  was  more  com- 
plicated :  it  being  contended  on  the  part  of  Sweden  that  it  was  a  real  union, 
and  on  the  part  of  Norway  that  it  was  only  a  personal  and  voluntary  union. 
The  difficulty  was  settled  in  1905  by  the  peaceable  separation  of  the  two  coun- 
tries, which  thereafter  were  universally  recognized  as  sovereign  and  inde- 
pendent in  law  as  well  as  in  fact.  For  this  union,  and  the  steps  leading  to 
and  including  the  separation  in  1905,  see  Sarah  Wambaugh,  Id.  165-169,  1051- 
1072. 

For  the  status  of  the  Transvaal  Republic  before  its  conquest  and  annexa- 
tion by  Great  Britain  in  1900,  see  In  re  Taylor  (D.  C.)  118  Fed.  196  (1902). 

For  the  status  of  Cuba  during  American  occupation  in  consequence  of  the 
war  with  Spain,  of  1898,  till  May  20,  1902,  when  it  was  evacuated  and  turned 
over  to  a  government  elected  by  its  people,  see  Neely  v.  Henkel,  180  U.  S.  109, 
21  Sup.  Ct.  302.  45  L.  Ed.  448  (1901).  For  the  relations  of  the  United  States 
and  Cuba,  see  the  treaty  concluded  on  May  23,  1903,  by  these  two  republics, 
incorporating  in  its  text  the  Piatt  Amendment,  so  called  from  Senator  Piatt, 
of  Connecticut,  who  introduced  it  into  the  Senate  as  an  amendment  to  the 
Army  Appropriation  Bill,  although  the  amendment  was  devised  by  Elihu 
Root,  then  Secretary  of  War  of  the  United  States.  See,  also,  Elihu  Root, 
Military  and  Colonial  Policy  of  the  United  States,  pp.  185-188  (1916). 

In  the  case  of  Rex  v.  The  Earl  of  Crewe,  Ex  parte  Sekgome,  L.  R.  2  K.  B. 
576,  619,  620  (1910),  the  court  had  occasion  to  consider  the  status  of  a  pro- 
tectorate in  the  narrower  sense  of  the  word. 

In  ordering  a  writ  of  habeas  corpus  on  behalf  of  Sekgome,  a  native  chieftain 
within  the  Batawana  Protectorate,  Lord  Justice  Kennedy  said,  in  the  course  of 
his  judgment: 

"Upon  the  first  question,  namely,  whether  Sekgome  is  or  is  not  a  British 
subject,  I  think  that  the  latter  view  is  correct.  Sekgome  was  born  and  ha.s 
remained  a  member  of  a  native  African  tribe  called  the  Batawana  tribe, 
dwelling  in  a  region  which  has  for  some  years  (see  proclamation  of  March 
29,  1S99)  become  officially  entitled  'The  Batawana  Native  Reserve,'  near 
Lake  Ngami,  within  the  Bechuanaland  Protectorate.  Now  the  features  of 
protectorates  differ  greatly,  and  of  this  a  comparison  of  the  British  protector- 
ates of  native  principalities  in  India,  the  British  protectorate  of  the  Ionian 
Islands  between  1815  and  1864,  the  protectorate  of  the  Federated  Malay  States, 
and  the  Bechuanaland  Protectorate  as  constituted  by  the  Orders  in  Council 
and  proclamation  before  mentioned,  affords  ample  illustration.  Other  in- 
stances of  protectorates  will  be  found  in  Wheaton,  International  Law  (4th 
Ed.)  pp.  51  to  66.    The  one  common  element  in  protectorates  is  the  prohibition 


Ch.  1)  STATES  29 

THE  CHARKIEH. 

(High  Court  of  Admiralty,  1S73.    L.  R.  4  Adm.  &  Ecc.  59.) 

This  was  a  cause  instituted  on  behalf  of  the  Netherlands  Steamship 
Co.,  the  owners  of  the  steamship  Batavier,  and  on  behalf  of  the  master, 
crew  and  passengers  thereof  against  the  screw  steamship  Charkieh  and 
her  freight,  for  damages  arising  out  of  a  collision  between  the  Batavier 
and  the  Charkieh  in  the  river  Thames  in  1872. 

As  a  bar  to  the  action  for  damages  resulting  from  the  collision,  it 
was  maintained  that  the  ship  was  the  property  of  Ismail  Pacha,  Khe- 
dive of  Egypt,  the  reigning  sovereign  of  the  state  of  Egypt  and  that 
the  Charkieh  was  a  public  vessel  of  the  government  and  semi-sovereign 
state  of  Egypt.'' 

Sir  Robert  Phillimori;.  *  *  *  From  these  averments  In  the 
pleadings,  and  these  facts  in  the  evidence,  the  following  questions  arise : 
1.  Js_  the  international  status  of  the  Khedive  that  of  sovereign 
prince  of  Egypt  ? 

2.  Is  he  entitled  by  virtue  of  that  status  to  claim  the  exemption  of 
this  ship  from  the  jurisdiction  of  this  court? 

3.  If  he  be  entitled  to  this  privilege,  has  he  waived  or  forfeited  it? 
I  proceed  to  consider  these  questions  in  their  order,  and  first,  as  to 

the  international  status  of  His  Highness  the  Khedive. 

[After  sketching  the  history  of  Egypt  from  Arabian  conquest  in  838 
A.  D.  to  the  year  1833,  the  learned  judge  says:] 

of  all  foreign  relations  except  those  permitted  by  the  protecting  state.  With- 
in a  protectorate,  the  degree  and  the  extent  of  the  exercise  by  the  protecting 
state  of  those  sovereign  powers  which  Sir  Henry  Maine  has  described  (Inter- 
national Law,  p.  58)  as  a  bundle  or  collection  of  powers  which  may  be  separat- 
ed one  from  another,  may  and  in  practice  do  vary  considerably.  In  this 
Bechuanaland  Protectorate  every  branch  of  such  government  as  exists — ad- 
ministrative, executive,  and  judicial — has  been  created  and  is  maintained  by 
Great  Britain.  What  the  idea  of  a  protectorate  excludes,  and  the  idea  of  an- 
nexation on  the  other  hand  would  include,  is  that  absolute  ownership  which 
was  signified  by  the  word  'dominium'  in  Eoman  law,  and  which,  though  per- 
haps not  quite  satisfactorily,  is  sometimes  described  as  territorial  sovereignty. 
The  protected  country  remains  in  regard  to  the  protecting  state  a  foreign 
country;  and,  this  being  so,  the  inhabitants  of  a  protectorate,  whether  native 
born  or  immigrant  settlers,  do  not  by  virtue  of  the  relationship  between  the 
protecting  and  the  protected  state  become  subjects  of  the  protecting  state. 
As  Dr.  Lushington  said  in  regard  to  the  inhabitants  of  the  Ionian  States,  then 
under  a  British  protectorate,  in  his  judgment  in  The  Ionian  Ships,  2  Ecc.  & 
Adm.  212,  at  page  226  (1855):  'Allegiance  in  the  proper  sense  of  the  term  un- 
doubtedly they  do  not  owe;  because  allegiance  exists  only  between  the  sov- 
ereign and  his  subjects,  properly  so  called,  which  they  are  not.'  A  limited 
obedience  the  dwellers  within  a  protectorate  do  owe,  as  a  sort  of  equiva- 
lent for  protection ;  and  in  the  present  case  the  Orders  in  Council  relating  to 
the  Bechuanaland  Protectorate  and  the  proclamations  of  the  High  Commis- 
sioner made  thereunder  imply  the  duty  of  obedience  on  the  part  of  Sekgome 
and  other  persons  within  the  area  of  the  protectorate  to  a  practically  unlimit- 
ed extent." 

^  Short  statement  substituted  for  that  of  the  report,  and  parts  of  the 
opinion  are  omitted. 


30  RIGHTS   AND   DUTIES    OF    NATIONS   IN   TIME   OF   PEACE         (Part  1 

Here  I  will  pause  a  moment  to  consider  the  law  applicable  to  the 
facts  as  now  stated. 

What  were  the  relations  at  this  epoch  existing-  between  the  Khedive 
and  the  Porte,  and  what  was  the  nature  and  character  of  the  authority 
of  the  former,  so  far  as  foreign  states  are  connected  with  these  con- 
siderations? Did  they  entitle  the  Khedive  to  the  privilege  of  the  sov- 
ereign of  an  independent  state?  These  are  questions  which  must  be 
answered,  like  all  others  appertaining  to  international  jurisprudence, 
by  a  reference  to  usage,  authority,  and  the  reason  of  the  thing. 

Many  accredited  writers  and  jurists  have  drawn  a  distinction,  which 
seems  not  to  have  escaped  the  framer  of  the  Khedive's  petition  on 
protest  now  before  me — between  a  sovereignty  absolute  and  pure,  and 
that  less  complete  and  perfect  dominion  to  which  the  name  of  half- 
sovereignty  (demi-souverain)  has  been  given.  I  am  inclined  to  think 
that  the  sovereign  of  a  state  in  the  latter  category  may  be  entitled  to  • 
require  from  foreign  states  the  consideration  and  privileges  which  are 
unquestionably  incident  to  the  sovereign  of  a  state  who  is  in  the  former 
category.  There  are  also  certain  acts  of  feudal  homage,  or,  as  jurists 
say,  servitutes  juris  gentium,  which  do  not  disentitle  the  state  obliged 
to  them  to  an  international  existence  as  a  separate  state. 

Some  examples  of  half  sovereignties  are  to  be  found  in  histor}-. 
Some  ol  the  smaller  states  (halb.  souverain)  of  the  German  confedera- 
tion, before  it  was  virtually  destroyed  by  Napoleon's  confederation  of 
the  Rhine,  and  formally  extinguished  by  the  abdication  of  the  Emperor 
Francis  in  1806,  also  furnished  examples  of  states  cum  imminutione 
imperii — to  borrow  the  expression  of  Grotius,  De  Jure  'Belli  et  Pacis, 
lib.  ii.,  c.  XV.,  s.  vii.,  1 ;  Cambridge  edition,  1853,  vol.  2,  p.  136 — but 
entitled  to  be  treated  as  states  by  foreign  powers.  The  old  feudal 
relations  of  the  Dukes  of  Burgundy,  Normandy,  and  Brittany  to 
France  did  not,  I  believe,  prevent  these  princes  from  being  considered 
as  sovereigns  at  home  and  abroad,  and  from  being  entitled  to  be  rep- 
resented by  ambassadors  at  foreign  courts. 

Other  instances  might  be  mentioned,  in  which  neither  the  payment 
of  tribute,  as  in  the  cases  of  the  Kingdom  of  the  Two  Sicilies  to  the 
Pope,  continued  till  1818  A.  D.,  or  of  the  King  of  Hungary  to  the 
Sultan,  from  the  reign  of  Ferdinand  the  First  till  the  Treaty  of  Silva- 
torok  in  1606  A.  D.,  nor  other  acts  of  purely  feudal  homage, — such 
as  the  presentation  of  the  white  palfrey  presented  to  the  Pope  by  the 
King  of  the  Two  Sicilies,— See  Phill.  Int.  Law  (2d  Ed.)  vol.  2,  434, 
disentitled  the  representative  of  a  state  in  these  conditions  to  the  en- 
joyment abroad  of  the  privileges  usually  accorded  to  a  foreign  sover- 
eign or  his  representatives. 

It  has  been  well  said  by  a  commentator  on  Martens'  work: 

"La  souverainete  exterieure  n'est  autre  chose  que  I'independance  de 
I'Etat  vis-a-vis  des  autres  etats."  Pinheiro  Ferreira  on  Martens,  Precis 
du  droit  des  gens,  edited  by  Verge,  1.  i.  c.  3,  §  23,  t.,  i.  p.  98,  Paris,  1858. 

It  may,  moreover,  be  that  if  such  a  status  existed  de  facto,  it  would 


Ch.  1)  STATES  31 

not  be  the  province  of  the  tribunals  of  a  foreign  state  to  look  beyond 
the  fact,  or  to  inquire  minutely  or  at  all  into  the  history  of  its  establish- 
ment. International  law  has  no  concern  with  the  form,  character,  or 
power'of  a  state,  if,  through  the  medium  of  a  government,  it  has  such 
an  independent  existence  as  to  render  it  capable  of  entertaining  inter- 
national relations  with  other  states.  An  apt  illustration  of  this  position 
is  furnished  by  the  status  accorded  by  European  Powers  in  more  mod- 
ern times  to  what  were  once  commonly  called  the  Barbary  States, 
They  had  practically  shaken  off  the  Ottoman  dominion.  Bynkershoek 
describes  them  as  "civitates  quse  certam  sedem  atque  ibi  imperium 
habent,  et  quibuscum  nunc  pax  est  nunc  bellum,  non  secus  ac  cum  aliis 
gentibus,  quique  propterea  ceterorum  principmn  jure  esse  videntur." 
Bynkershoek,  Qusestiones  Juris  Publici,  lib.  i.,  c.  17;  Opera  Omnia, 
vol.  2,  p.  223,  ed.  1767.  And  in  the  year  1801  Lord  Stowell  fully 
adopted  this  position,  and  asserted  that  the  African  states  had  "long 
acquired  the  character  of  established  governments,  with  whom  we  have 
regular  treaties,  acknowledging  and  confirming  to  them  the  relations  of 
legal  states,"  and  he  remarked  that,  "although  their  notions  of  inter- 
national justice  differ  from  those  which  we  entertain,  we  do  not  on 
that  account  venture  to  call  in  question  their  public  acts," — that  is 
to  say,  that  although  they  are  perhaps  on  some  points  entitled  to  a 
relaxed  application  of  the  principles  of  international  law,  derived  ex- 
clusively from  European  custom,  they  are  nevertheless  treated  as  hav- 
ing the  rights  and  duties  of  states  by  the  civilized  world.  The  Helena, 
4  C.  Rob.  3. 

It  is  to  be  observed,  however,  that  the  court  proceeded  upon  the 
principle  that  a  nation  with  whom  we  had  regular  treaties  was  de  facto 
acknowledged  without  a  formal  recognition  to  have  what  jurists  have 
termed  the  right  of  a  political  personality  (Kliiber,  §  25 — Droit  des 
gens  moderne  de  I'Europe,  par  M.  A.  Ott,  Paris,  1861,  p.  35),  that  is, 
the  position  of  a  state  in  the  great  commonwealth  of  nations. 

If,  at  this  period,  I  had  been  obliged  to  decide  whether  the  Pacha  of 
Egypt  was  entitled  to  the  privilege  of  a  sovereign  in  this  country,  my 
decision  would  have  been  influenced  by  a  regard  to  the  de  facto  sov- 
ereign rights  apparently  exercised  at  this  period  by  his  Highness ;  and 
perhaps  the  analogy  of  a  European  state  having  absolute  dominion 
over  its  own  subjects  with  feudal  subordination  to  another  state  might 
have  been  cited  with  effect. 

Though,  even  in  this  crisis  of  the  history  of  Egypt,  when  the  inde- 
pendence of  that  country  was  so  nearly  established,  it  must  be  observed 
that  no  attempt  appears  to  have  been  made  on  behalf  of  the  Pacha  to 
exercise  the  principal  international  attribute  of  sovereignty,  namely, 
the  jus  legationis,  to  be  represented  by  an  ambassador  or  diplomatic 
agenf~ar the  court  of  foreign  sovereigns;  nor  is  there  any  reason  to 
believe  that  such  an  attempt,  if  made,  would  have  been  successful. 

But  in  the  interval  between  1833  A.  D.  and  1841  A.  D.  the  scene  is 
greatly  changed.     *     *     * 


32  RIGHTS   AKD   DUTIES   OF  NATIONS   IN   TIME   OF  PEACE      (Part  1 

The  result,  then,  of  the  historical  inquir\'  as  to  the  status  of  his 
Highness  the  Khedive,  is  as  follows :  That  in  the  firmans,  whose  au- 
thority upon  this  point  appears  to  be  paramount,  Egypt  is  invariably 
spoken  of  as  one  of  the  provinces  of  the  Ottoman  Empire.  That  the 
Eg>"ptian  army  is  regulated  as  part  of  the  militar}^  force  of  the  Otto- 
man Empire.  That  the  taxes  are  imposed  and  levied  in  the  name  of 
the  Porte.  That  the  treaties  of  the  Porte  are  binding  upon  Egv'pt,  and 
that  she  has  no  separate  jus  legationis.  That  the  flag  for  both  the  army 
and  the  navy  is  the  flag  of  the  Porte. 

All  these  facts,  according  to  the  unanimous  opinion  of  accredited 
writers,  are  inconsistent  and  incompatible  with  those  conditions  of 
sovereignt\'  which  are  necessary  to  entitle  a  country  to  be  ranked  as 
one  among  the  great  community  of  states. 

Against  this  array  of  negative  proof  is  to  be  set  the  solitary  circum- 
stance that  the  office  of  Khedive  is  hereditary.  It  requires  but  little 
consideration  to  see  that  this  peculiarity  cannot  affect  the  question. 
Eg}'pt  remains  a  province  of  an  empire,  and  does  not  become  an  em- 
pire, because  her  viceroy  is  hereditary.  The  viceroy  does  not  become 
a  sovereign  prince  because  his  sovereign  permits  him  to  transmit  the 
viceroyalty  to  his  descendants  in  the  direct  male  line.  The  hereditary 
character  does  not  confer  on  the  holder,  in  this  case,  the  right  of  mak- 
ing war  and  peace,  of  sending  an  ambassador,  or  of  maintaining  a 
separate  military  or  naval  force,  or  of  governing  at  all,  except  in  the 
name  and  under  the  authority  of  his  sovereign. 

The  hereditary  character  of  the  viceroyalty  may  make  the  viceroy 
the  chief  subject  of  the  Porte,  but  he  is  still  a  subject  prince,  and  not 
a  sovereign  prince  or  "reigning  sovereign"  even  "of  a  semi-sovereign 
state."  according  to  the  terms  of  the  petition  on  protest. 

I  have  one  more  obser\^ation  to  make  before  I  leave  this  branch  of 
the  subject.  It  cannot  be  urged  in  favour  of  the  exemption  of  the 
Charkieh,  that,  though  she  may  have  been  erroneously  claimed  as  a 
public  vessel  of  the  Egyptian  government,  it  is  substantially  the  same 
thing  if  she  be  -a  public  vessel  of  the  Ottoman  government  of  which 
the  government  of  "Egypt  is  a  part ;  because  at  the  beginning  of  these 
proceedings  I  directed  the  Registrar  to  write  the  following  letter  to  the 
ambassador  of  the  Porte:     *     *     * 

No  answer  has  been  sent  to  this  letter,  and  no  intervention  of  any 
sort  has  taken  place  on  behalf  of  the  Porte.  Thereupon  this  argument 
occurs.  It  cannot  be  denied  that  for  the  abuse  of  the  privilege  of  the 
sovereign  or  the  ambassador,  some  remedy  must  be  found.  It  has 
been  shown  that  the  Khedive  has  six  or  seven  ships  acting  as  merchant- 
men, for  whom  he  claims  the  same  privilege  as  for  the  Charkieh,  and 
the  number  may  be  indefinitely  increased.  It  has  been  said  that  the 
remedy  is  to  be  found  in  an  application  to  the  sovereign  to  abate  the 
abuse. 

Any  such  application  must  be  made  in  the  present  instance  to  the 
Porte.    But  the  ambassador  of  the  Porte  asserts  no  such  claim.    It  is 


Ch.  1)  STATES  33 

the  governor  of  a  province  of  the  state  that  insists  upon  the  privilege. 
To  communicate  directly  with  the  governor  in  this  matter  would  be  to 
derogate  from  the  dignity  of  his  sovereign,  and  to  place  in  the  rank  of 
a  sovereign  a  governor  whom  his  own  sovereign  has  placed  in  the  rank 
of  a  subject. 

Lastly,  no  treaty  ever  having  been  made  with  his  Highness,  no  am- 
bassador ever  received  from  or  sent  to  him.  British  consuls  in  Egypt 
receiving  no  exequatur  from  him,  there  being,  in  other  words,  no  de 
facto  recognition  of  his  Highness  as  a  sovereign  by  our  government, 
has  there  been  any  recognition  de  jure  of  him  in  this  capacity? 

The  Court  of  Chancery,  when  a  plaintiff  averred  in  his  bill  that  a 
certain  republic  in  Central  America  had  been  recognized  as  an  inde- 
pendent government,  put  itself  in  communication  with  the  Foreign 
Office,  and  after  such  communication,  declared  itself  authorized  to 
state  that  the  republic  in  question  had  never  been  recognized  by  the 
government  of  this  country,  and  on  the  ground  that  what  was  pleaded 
was  "historically  false,"  allowed  a  demurrer  to  the  bill:  Taylor  v. 
Barclay,  2  Sim.  213.  I  have  communicated  with  the  Foreign  Office, 
and  have  received  the  following  answer  to  my  questions,  viz. :  "that 
the  Khedive  has  not  been  and  is  not  now  recognized  by  Her  ]\Iajesty 
as  reigning  sovereign  of  the  state  of  Eg}^pt."  "He  is  recognized  by 
Her  ISIajesty's  government  as  the  hereditary  ruler  of  the  province  of 
Eg}'pt  under  the  supremacy  of  the  Sultan  of  Turkey." 

Upon  all  these  facts  I  have  arrived  at  the  conclusion  that  independ- 
ently of  any  other  consideration,  his  Highness  the  Khedive  has  failed 
to  establish  his  claim  to  exempt  his  vessel  from  the  process  of  this 
court.®     *     *     * 

c  The  bankruptcy  which  marked  the  reign  of  Ismail,  the  khedive  of  Egypt, 
caused  the  European  Powers  to  intervene,  in  order  to  safeguard  their  finan- 
cial interests.  Ismail  was  summarily  removed  by  the  Porte  in  1879,  and  was 
succeeded  by  his  son,  Tewfik  Pasha. 

A  movement  under  an  Egyptian  officer,  commonly  called  Arabi  Pasha,  who 
was  later  Minister  of  War,  to  free  Egypt  from  foreign  control,  assumed,  in 
18S2,  the  proportions  of  a  rebellion  against  Tewfik  and  his  authority.  The 
seizure  of  Alexandria  and  the  massacre  of  June  11,  1882,  caused  the  British 
fleet  to  bombard  the  forts  of  the  city. 

In  view  of  the  gravity  of  the  situation,  a  conference  of  ambassadors  was 
held  in  Constantinople,  and  the  Sultan  was  invited  to  quell  the  revolt.  This 
he  hesitated  to  do  at  the  instance  of  Christian  Powers.  Great  Britain  decided 
to  employ  armed  forces,  and  invited  France  and  Italy  to  co-operate.  They 
refused.  Therefore,  Great  Britain  took  the  initiative,  landed  troops  to  put 
down  the  disorders,,  and  occupied  Egypt. 

The  occupation  was  not  intended  to  be  permanent,  but  as  often  happens  in 
such  cases,  it  appeared  more  difficult  to  withdraw  than  to  enter  into  occupa- 
tion. Abbas  Pasha,  the  son  and  successor  of  Tewfik,  was  ^opposed  to  the 
British  occupation  and  submitted  to  a  control  which  he  could  not  resist. 
Upon  the  outbreak  of  the  World  War,  in  1914,  Great  Britain  felt  it  necessary 
to  remove  him,  which  it  did.  It  did  not,  however,  annex  Egypt,  but  pro- 
claimed Abbas'  brother  Sultan  thereof,  and  established  a  protectorate  on 
December  18,  1914.  On  February  28,  1922,  Great  Britain  acknowledged  the 
independence  of  Egjpt  upon  the  terms  and  conditions  set  forth  in  Parlia- 
mentary Papers,  No.  1  (1922)  pp.  29-30. 
Scott  Ikt.Law — 3 


34  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TDIE   OF  PEACE      (Part  1 

STATE  OF  TEXAS  v.  WHITE  et  al. 
(Supreme  Court  of  the  United  States,  1868.    7  Wall.  700,  19  L.  Ed.  227.) 

The  Chief  Justice  [Chase]  delivered  the  opinion  of  the  court.^ 

This  is  an  original  suit  in  this  court,  in  which  the  State  of  Texas, 
claiming  certain  bonds  of  the  United  States  as  her  property,  asks  an 
injunction  to  restrain  the  defendants  from  receiving  payment  from  the 
National  government,  and  to  compel  the  surrender  of  the  bonds  to  the 
State.     *     *     * 

The  first  inquiries  to  which  our  attention  was  directed  by  counsel, 
arose  upon  the  allegations  *  *  *  (1),  that  no  sufficient  authority 
is  shown  for  the  prosecution  of  the  suit  in  the  name  and  on  the  behalf 
of  the  State  of  Texas;  and  (2)  that  the  State,  having  severed  her  re- 
lations with  a  majority  of  the  States  of  the  Union,  and  having  by  her 
ordinance  of  secession  attempted  to  throw  off  her  allegiance  to  the 
Constitution  and  government  of  the  United  States,  has  so  far  changed 
her  status  as  to  be  disabled  from  prosecuting  suits  in  the  National 
courts. 

The  first  of  these  allegations  is  disproved  by  the  evidence.     *     *     * 

The  other  allegation  presents  a  question  of  jurisdiction.  It  is  not  to 
be  questioned  that  this  court  has  original  jurisdiction  of  suits  by  States 
against  citizens  of  other  States,  or  that  the  States  entitled  to  invoke  this 
jurisdiction  must  be  States  of  the  Union.  But,  it  is  equally  clear  that 
no  such  jurisdiction  has  been  conferred  upon  this  court  of  suits  by  any 
other  political  communities  than  such  States. 

If,  therefore,  it  is  true  that  the  State  of  Texas  was  not  at  the  time  of 
filing  this  bill,  or  is  not  now,  one  of  the  United  States,  we  have  no  ju- 
risdiction of  this  suit,  and  it  is  our  duty  to  dismiss  it. 

We  are  very  sensible  of  the  magnitude  and  importance  of  this  ques- 
tion, of  the  interest  it  excites,  and  of  the  difficulty,  not  to  say  im- 
possibility, of  so  disposing  of  it  as  to  satisfy  the  conflicting  judgments 
of  men  equally  enlightened,  equally  upright,  and  equally  patriotic.  But 
we  meet  it  in  the  case,  and  we  must  determine  it  in  the  exercise  of  our 
best  judgment,  under  the  guidance  of  the  Constitution  alone. 

Some  not  unimportant  aid,  hovv'ever,  in  ascertaining  the  true  sense 
of  the  Constitution,  may  be  derived  from  considering  what  is  the  cor- 
rect idea  of  a  State,  apart  from  any  union  or  confederation  with  other 
States.  The  poverty  of  language  often  compels  the  employment  of 
terms  in  quite  different  significations ;  and  of  this  hardly  any  example 
more  signal  is  to  be  found  than  in  the  use  of  the  word  we  are  now 
considering.  It  would  serve  no  useful  purpose  to  attempt  an  enumera- 
tion of  all  the  various  senses  in  which  it  is  used.  A  few  only  need  be 
noticed. 

"  The  statement  of  tacts  and  parts  of  the  opinion  of  Chief  Justice  Chase 
and  the  dissenting  opinions  of  Justices  Grier  and  Swayne  are  omitted. 

Scott  Int.Law 


Ch.  1)  STATES  '  35 

It  describes  sometimes  a  people  or  community  of  individuals  united 
more  or  less  closely,  in  political  relations,  inhabiting  temporarily  or 
permanently  the  same  country;  often  it  denotes  only  the  country  or 
territorial  region,  inhabited  by  such  a  community;  not  unfrequently 
it  is  applied  to  the  government  under  which  the  people  live;  at  other 
times  it  represents  the  combined  idea  of  2£22^^j  ^^i^ory,  and  govern- 
ment, ~ 
TTis  not  difficult  to  see  that  in  all  these  senses  the  primary  conception 
is  that  of  a  people  or  community.  The  people,  in  whatever  territory 
dwelling,  either  temporarily  or  permanently,  and  w'hether  organized 
under  a  regular  government,  or  united  by  looser  and  less  definite  re- 
lations, constitute  the  state. 

This  is  undoubtedly  the  fundamental  idea  upon  which  the  republi- 
can institutions  of  our  own  country  are  established.  It  was  stated  very 
clearly  by  an  eminent  judge, ^  in  one  of  the  earliest  cases  adjudicated 
by  this  court,  and  we  are  not  aware  of  anything,  in  any  subsequent  de- 
cision, of  a  different  tenor. 

In  the  Constitution  the  term  state  most  frequently  expresses  the  com- 
bined idea  just  noticed,  of  people,  territory,  and  government.  A  state 
in  the  ordinary  sense  of  the  Constitution,  is  a  political  community  of 
fi-ee  citizens,  occupying  a  territory  of  defined  boundaries,  and  organ- 
ized under  a  government  sanctioned  and  limited  by  a  written  con- 
stitution, and  established  by  the  consent  of  the  governed.  It  is^the 
union  of  such  states,  under  a  common  constitution,  which  forms  the 
distinct  and  greater  political  unit,  which  that  Constitution  designates 
as  the  United  States,  and  makes  of  the  people  and  states  which  com- 
pose it  one  people  and  one  country. 

The  iise  of  the  word  in  this  sense  hardly  requires  further  remark. 
In  the  clauses  which  impose  prohibitions  upon  the  States  in  respect 
to  the  making  of  treaties,  emitting  of  bills  of  credit,  and  laying  duties 
of  tonnage,  and  which  guarantee  to  the  States  representation  in  the 
House  of  Representatives  and  in  the  Senate,  are  found  some  instances 
of  this  use  in  the  Constitution.    Others  will  occur  to  every  mind. 

But  it  is  also  used  in  its  geographical  sense,  as  in  the  clauses  which 
require  that  a  representative  in  Congress  shall  be  an  inhabitant  of  the 
State  in  which  he  shall  be  chosen,  and  that  the  trial  of  crimes  shall  be 
held  within  the  State  where  committed. 

And  there  are  instances  in  which  the  principal  sense  of  the  w^ord 
seems  to  be  that  primary  one  to  which  we  have  adverted,  of  a  people 
or  political  community,  as  distinguished  from  a  government. 

In  this  latter  sense  the  word  seems  to  be  used  in  the  clause  which 
provides  that  the  United  States  shall  guarantee  to  every  State  in  the 
Union  a  republican  form  of  government,  and  shall  protect  each  of  them 
against  invasion. 

*•  Mr.  Justice  Paterson,  in  Peuhallow  v.  Doane's  Adiu'rs,  3  Dall.  93,  1  L. 
Ed.  507   (17'J5). 


36  RIGHTS  AND   DUTIES   OF  NATIONS   IN   TIME   OP  PEACE       (Part  1 

In  this  clause  a  plain  distinction  is  made  between  a  State  and  the 
government  of  a  State. 

Having  thus  ascertained  the  senses  in  which  the  word  state  is  em- 
ployed in  the  Constitution,  we  will  proceed  to  consider  the  proper  ap- 
plication of  what  has  been  said. 

The  Republic  of  Texas  was  admitted  into  the  Union,  as  a  State,  on 
the  27th  of  December,  1845.  By  this  act  the  new  State,  and  the  peo- 
ple of  the  new  State,  were  invested  with  all  the  rights,  and  became  sub- 
ject to  all  the  responsibilities  and  duties  of  the  original  States  under  the 
Constitution. 

From  the  date  of  admission,  until  1861,  the  State  was  represented  in 
the  Congress  of  the  United  States  by  her  senators  and  representatives, 
and  her  relations  as  a  member  of  the  Union  remained  unimpaired.  In 
that  year,  acting  upon  the  theory  that  the  rights  of  a  State  under  the 
Constitution  might  be  renounced,  and  her  obligations  thrown  off  at 
pleasure,  Texas  undertook  to  sever  the  bond  thus  formed,  and  to  break 
up  her  constitutional  relations  with  the  United  States. 

On  the  1st  of  February,®  a  convention,  called  without  authority,  but 
subsequently  sanctioned  by  the  legislature  regularly  elected,  adopted  an 
ordinance  to  dissolve  the  union  between  the  State  of  Texas  and  the 
other  States  under  the  Constitution  of  the  United  States,  whereby  Tex- 
as was  declared  to  be  "a  separate  and  sovereign  State,"  and  "her  people 
and  citizens"  to  be  "absolved  from  all  allegiance  to  the  United  States, 
or  the  government  thereof." 

It  was  ordered  by  a  vote  of  the  convention  ^°  and  by  an  act  of  the 
legislature,'"^  that  this  ordinance  should  be  submitted  to  the  people,  for 
approval  or  disapproval,  on  the  23d  of  February,  1861. 

Without  awaiting,  however,  the  decision  thus  invoked,  the  conven- 
tion, on  the  4th  of  February,  adopted  a  resolution  designating  seven 
delegates  to  represent  the  State  in  the  convention  of  seceding  States 
at  Montgomery,  "in  order,"  as  the  resolution  declared,  "that  the  wishes 
and  interests  of  the  people  of  Texas  may  be  consulted  in  reference  to 
the  constitution  and  provisional  government  that  may  be  established  by 
said  convention." 

Before  the  passage  of  this  resolution  the  convention  had  appointed 
a  committee  of  public  safety,  and  adopted  an  ordinance  giving  author- 
ity to  that  committee  to  take  measures  for  obtaining  possession  of  the 
property  of  the  United  States  in  Texas,  and  for  removing  the  national 
troops  from  her  limits.  The  members  of  the  committee,  and  all  of- 
ficers and  agents  appointed  or  employed  by  it,  were  sworn  to  secrecy 
and  to  allegiance  to  the  State.^^  Commissioners  were  at  once  appoint- 
ed, with  instructions  to  repair  to  the  headquarters  of  General  Twiggs, 

^  Paschal's  Digest  Laws  of  Texas,  78. 
1"  Paschal's  Digest  Laws  of  Texas,  80. 

11  Laws  of  Texas,  1859-61,  p.  11. 

12  Pasclial's  Digest,  80. 


Ch.  1)  STATES  37 

then  representing  the  United  States  in  command  of  the  department, 
and  to  make  the  demands  necessary  for  the  accompHshment  of  the 
purposes  of  the  committee.  A  military  force  was  organized  in  support 
of  these  demands,  and  an  arrangement  was  effected  with  the  com- 
manding general,  by  which  the  United  States  troops  were'  engaged  to 
leave  the  State,  and  the  forts  and  all  the  public  property,  not  necessary 
to  the  removal  of  the  troops,  were  surrendered  to  the  commissioners.^^ 

These  transactions  took  place  between  the  2d  and  the  18th  of  Feb- 
ruary, and  it  was  under  these  circumstances  that  the  vote  upon  the 
ratification  or  rejection  of  the  ordinance  of  secession  was  taken  on  the 
23d  of  February.  It  was  ratified  by  a  majority  of  the  voters  of  the 
State. 

The  convention,  which  had  adjourned  before  the  vote  was  taken, 
reassembled  on  the  2d  of  March,  and  instructed  the  delegates  already 
sent  to  the  Congress  of  the  seceding  States,  to  apply  for  admission  in- 
to the  confederation,  and  to  give  the  adhesion  of  Texas  to  its  provision- 
al constitution. 

It  proceeded,  also,  to  make  the  changes  in  the  State  constitution 
which  this  adhesion  made  necessary.  The  words  "United  States,'' 
were  stricken  out  wherever  they  occurred,  and  the  words  "Confed- 
erate States"  substituted ;  and  the  members  of  the  legislature,  and  all 
officers  of  the  State,  were  required  by  the  new  constitution  to  take  an 
oath  of  fidelity  to  the  constitution  and  laws  of  the  new  confeder- 
acy.    *     *     * 

The  position  thus  assumed  could  only  be  maintained  by  arms,  and 
Texas  accordingly  took  part,  with  the  other  Confederate  States,  in 
the  war  of  the  rebellion,  which  these  events  made  inevitable.  During 
the  whole  of  that  war  there  was  no  governor,  or  judge,  or  any  other 
State  officer  in  Texas,  who  recognized  the  National  authority.  Nor 
was  any  officer  of  the  United  States  permitted  to  exercise  any  au- 
thority whatever  under  the  National  government  within  the  limits 
of  the  State,  except  under  the  immediate  protection  of  the  National 
military  forces. 

Did  Texas,  in  consequence  of  these  acts,  cease,  to  be  a  State?  Or, 
if  not,  did  the  State  cease  to  be  a  member  of  the  Union? 
""rtis''rieedless  to  discuss,  at  length,  the  question  whether  the  right  of 
a  State  to  withdraw  from  the  Union  for  any  cause,  regarded  by  her- 
self as  sufficient,  is  consistent  with  the  Constitution  of  the  United 
States. 

The  Union  of  the  States  never  was  a  purely  artificial  and  arbitrary 
relation.  It  began  among  the  Colonies,  and  grew  out  of  common  origin, 
mutual  sympathies,  kindred  principles,  similar  interests,  and  geographi- 
cal relations.  It  was  confirmed  and  strengthened  by  the  necessities  of 
war,  and  received  definite  form,  and  character,  and  sanction  from  the 
Articles  of  Confederation.  By  these  the  Union  was  solemnly  declar- 
es Texas  Reports  of  the  Committee  (Library  of  Congrt-ss),  45. 

64330 


38  RIGHTS    AND    DUTIES   OF   NATIONS    IN    TIME   OF   PEACE       (Part  1 

ed  to  "be  perpetual,"  And  when  these  Articles  were  found  to  be  in- 
adequate to  the  exigencies  of  the  country,  the  Constitution  was  ordain- 
ed "to  form  a  more  perfect  Union."  It  is  difficult  to  convey  the  idea  of 
indissoluble  unity  more  clearly  than  by  these  words.  What  can  be 
indissoluble  if  a  perpetual  Union,  made  more  perfect,  is  not? 

But  the  perpetuity  and  indissolubility  of  the  Union,  by  no  means 
implies  the  loss  of  distinct  and  individual  existence,  or  of  the  right  of 
self-government  by  the  States.  Under  the  Articles  of  Confederation 
each  State  retained  its  sovereignty,  freedom,  and  independence,  and 
every  power,  jurisdiction,  and  right  not  expressly  delegated  to  the 
United  States.  Under  the  Constitution,  though  the  powers  of  the 
States  were  much  restricted,  still,  all  powers  not  delegated  to  the  Unit- 
ed States,  nor  prohibited  to  the  States,  are  reserved  to  the  States  re- 
spectively, or  to  the  people.  And  we  have  already  had  occasion  to  re- 
mark at  this  term,  that  "the  people  of  each  State  compose  a  State, 
having  its  own  government,  and  endowed  with  all  the  functions  essen- 
tial to  separate  and  independent  existence,"  and  that  "without  the 
States  in  union,  there  could  be  no  such  political  body  as  the  United 
States."  ^*  Not  only,  therefore,  can  there  be  no  loss  of  separate  and 
independent  autonomy  to  the  States,  through  their  union  under  the 
Constitution,  but  it  may  be  not  unreasonably  said  that  the  preservation 
of  the  States,  and  the  maintenance  of  their  governments,  are  as  much 
within  the  design  and  care  of  the  Constitution  as  the  preservation  of 
the  Union  and  the  maintenance  of  the  National  government.  The 
Constitution,  in  all  its  provisions,  looks  to  an  indestructible  Union, 
composed  of  indestructible  States. 

When,  therefore,  Texas  became  one  of  the  United  States,  she  en- 
tered into  an  indissoluble  relation.  All  the  obligations  of  perpetual 
union,  and  all  the  guaranties  of  republican  government  in  the  Union, 
attached  at  once  to  the  State.  The  act  which  consummated  her  admis- 
sion into  the  Union  was  something  more  than  a  compact;  it  was  the 
incorporation  of  a  new  member  into  the  political  body.  And  it  was 
final.  The  union  between  Texas  and  the  other  States  was  as  complete, 
as  perpetual,  and  as  indissoluble  as  the  union  between  the  original 
States.  There  was  no  place  for  reconsideration,  or  revocation,  except 
through  revolution,  or  through  consent  of  the  States. 

Considered  therefore  as  transactions  under  the  Constitution,  the  or- 
dinance of  secession,  adopted  by  the  convention  and  ratified  by  a  ma- 
jority of  the  citizens  of  Texas,  and  all  the  acts  of  her  legislature  in- 
tended to  give  effect  to  that  ordinance,  were  absolutely  null.  They 
were  utterly  without  operation  in  law.  The  obHgations  of  the  State, 
as  a  member  of  the  Union,  and  of  every  citizen  of  the  State,  as  a  citi- 
zen of  the  United  States,  remained  perfect  and  unimpaired.  It  cer- 
tainly follows  that  the  State  did  not  cease  to  be  a  State,  nor  her  citizens 
to  be  citizens  of  the  Union.     If  this  were  otherwise,  the  State  must 

1*  Lane  County  v.  State  of  Oregon,  7  Wall.  76,  19  L.  Ed.  101  (1868). 


Ch.  1)  STATES  39 

have  become  foreign,  and  her  citizens  foreigners.  The  war  must  have 
ceased  to  be  a  war  for  the  suppression  of  rebelhon,  and  must  have 
become  a  war  for  conquest  and  subjugation. 

Our  conchision  therefore  is,  that  Texas  continued  to  be  a  State,  and 
a  State  of  the  Union,  notwithstanding  the  transactions  to  which  we 
have  referred.  And  this  conchision.  in  our  judgment,  is  not  in  conflict 
with  any  act  or  declaration  of  any  department  of  the  National  govern- 
ment, but  entirely  in  accordance  with  the  whole  series  of  such  acts  and 
declarations  since  the  first  outbreak  of  the  rebellion.^"*     *     *     * 

IB  Some  further  judicial  definitions  of  states  or  nations  follow :  "A  distinction 
was  taken  at  tbe  bar  between  a  state  and  the  people  of  a  state.  It  is  a 
distinction  I  am  not  capable  of  comprehending.  By  a  state  forming  a  repub- 
lic (speaking  of  it  as  a  moral  person)  I  do  not  mean  the  Legislature  of  the 
state,  the  executive  of  the  state,  or  the  judiciary,  but  all  the  citizens  which 
compose  that  state,  and  are,  if  I  may  so  express  myself,  integral  parts  of  it; 
all  together  forming  a  body  politic.  The  great  distinction  between  monarchies 
and  republics  (at  least  our  republics)  in  general  is,  that  in  the  former  the  mon- 
arch is  considered  as  the  sovereign,  and  each  individual  of  his  nation  as 
subject  to  him,  though  in  some  countries  with  many  important  special  limi- 
tations :  This,  I  say,  is  generally  the  case,  for  it  has  not  been  so  universally. 
But  in  a  republic,  all  the  citizens,  as  such,  are  equal,  and  no  citizen  can 
rightfully  exercise  any  authority  over  another  but  .in  virtue  of  a  power  con- 
stitutionally given  by  the  whole  community,  and  such  authority,  when  exercis- 
ed, is  in  effect  an  act  of  the  whole  community,  which  forms  such  body  politic. 
In  such  governments,  therefore,  the  sovereignty  resides  in  the  great  body 
of  the  people,  but  it  resides  in  them  not  as  so  many  distinct  individuals,  bul 
in  their  politic  capacity  only."  Per  Iredell.  J.,  in  Penhallow  et  al.  v.  Doane's 
Administrators,  3  Dall.  54,  93,  1  L.  Ed.  507,  Fed.  Cas.  No.  10,925  (1795). 

"The  terms  state  and  nation  are  used  in  the  law  of  nations,  as  well  as  in 
common  parlance,  as  importing  the  same  thing,  and  imply  a  body  of  men, 
united  together,  to  procure  their  mutual  safety  and  advantage  by  means  of 
their  union.  Such  a  society  has  its  affairs  and  interests  to  manage;  it  delib- 
erate?;,-and  takes  resolutions  in  common,  and  thus  becomes  a  moral  person, 
having  an  understanding  and  a  will  peculiar  to  itself,  and  is  susceptible  of 
obligations  and  laws.  Vattel,  1.  Nations  being  composed  of  men  naturally 
free  and  independent,  and  Avho,  before  the  establishment  of  civil  societies, 
live  together  in  the  state  of  nature,  nations  or  sovereign  states,  are  to  be 
considered  as  so  many  free  persons,  living  together  in  a  state  of  nature. 
Vattel,  2,  §  4.  Every  nation  that  governs  itself,  under  what  form  soever, 
without  any  dependence  on  a  foreign  power,  is  a  sovereign  state.  Its  rights 
are  naturally  the  same  as  those  of  any  other  state.  Such  are  moral  persons 
who  live  together  in  a  natural  society,  under  the  law  of  nations.  It  is  suffi- 
cient if  it  be  really  sovereign  and  independent;  that  is,  it  must  govern  itself 
by  its  own  authority  and  laws.  We  ought,  therefore,  to  reckon  in  the  number 
of  sovereigns  those  states  that  have  bound  themselves  to  another  more  power- 
ful, although  by  an  unequal  alliance.  The  conditions  of  these  unequal  al- 
liances may  be  infinitely  varied;  but  whatever  they  are,  provided  the  in- 
ferior ally  reserves  to  itself  the  sovereignty  or  the  right  to  govern  its  own 
body,  it  ought  to  be  considered  an  independent  state.  Consequently,  a  weak 
state,  that,  in  order  to  provide  for  its  safety,  places  itself  under  the  protec- 
tion of  a  more  powerful  one,  without  stripping  itself  of  the  right  of  govern- 
ment and  sovereignty,  does  not  cease  on  this  account  to  be  placed  among 
the  sovereigns  who  acknowledge  no  other  power.  X^ibutayLand  feudatory 
states  do  not  thereby  cease  to  be  sovereign  and  indepeiicTent  states,  so  long- as 
self-government,  and  sovereign  and  independent  authority  is  left  in  the  ad- 
ministration of  the  state.  Vattel,  c.  1,  pp.  16,  17."  Thompson,  J.,  in  Cherokee 
Nation  v.  State  of  Georgia,  5  Pet.  1,  52,  53,  S  L.  Ed.  25  (18.31). 

"The  argument  rests  entirely  upon  an  assumption  which,  it  appears  to  us,. 
is  certainly   groundless;    the  assumption   that  personality  cannot  be  truly 


40  RIGHTS  AND   DUTIES   OP  NATIONS   IN  TIME   OP  PEACE      (Part  1 

WILLIAMS  V.  BRUFFY. 

(Supreme  Court  of  the  United  States,  1877.    96  U.  S.  176,  24  L.  Ed.  716.) 

Error  to  the  Supreme  Court  of  Appeals  of  the  State  of  Virginia. 

This  was  an  action  of  assumpsit  for  certain  goods  sold  by  the  plain- 
tiffs in  March,  1861,  to  George  Bruffy,  since  deceased,  brought  against 
the  administrator  of  his  estate  in  the  circuit  court  of  Rockingham  coun- 
ty', Virginia.  The  plaintiffs  at  the  time  of  the  sale  were  and  still  are 
residents  of  the  state  of  Pennsylvania ;  and  the  deceased  was  then,  and 
until  his  death,  which  occurred  during  the  war,  continued  to  be,  a  resi- 
dent of  the  state  of  Virginia. 

The  defendant  plfeaded  the  general  issue,  and  two  special  pleas,  in 
one  of  which  he  averred,  in  substance,  that  Pennsylvania  was  one  of 
the  United  States,  and  that  Virginia  was  one  o^  the  states  which  had 
formed  a  confederation  known  as  the  Confederate  States;  that  from 
some  time  in  1861  until  some  tim.e  in  1865  the  government  of  the  United 
States  was  at  war  with  the  government  of  the  Confederate  States ;  that 
on  the  30th  of  August,  1861,  the  Confederate  States  enacted  a  law  se- 
questrating the  lands,  tenements,  goods,  chattels,  rights,  and  credits 
within  the  Confederate  States,  and  every  right  and  interest  therein, 
held  by  or  for  any  alien  enemy  since  the  21st  of  May,  1861,  excepting 
such  debts  as  may  have  been  paid  into  the  treasury  of  one  of  the 
Confederate  States  prior  to  the  passage  of  the  law,  and  making  it  the 
duty  of  every  attorney,  agent,  former  partner,  trustee,  or  other  person 
holding  or  controlling  any  such  property  or  interest,  to  inform  the  re- 
ceiver of  the  Confederate  States  of  the  fact,  and  to  render  an  account 
thereof,  and,  so  far  as  practicable,  to  place  the  same  in  the  hands  of 
the  receiver,  and  declaring  that  thereafter  such  person  should  be 
acquitted  of  all  responsibility  for  the  property  thus  turned  over,  and 
that  any  person  failing  to  give  the  information  mentioned  should  be 
deemed  guilty  of  a  high  misdemeanor;  that  on  the  1st  of  January,  1862, 
this  law  being  in  force,  the  defendant's  intestate  paid  over  to  the  re- 
predicated  of  a  republic.  A  republic,  acknowledged  as  such  by  our  own 
government,  is  an  independent  sovereign  power;  in  other  words,  a  state,  just 
as  certainly,  and  in  the  same  sense  as  a  monarchy,  limited  or  absolute;  and 
every  state  is  a  person,  an  artificial  person  in  a  more  extensive  and  far 
higher  sense  than  an  ordinary  corporation.  A  state,  whatever  may  be  the 
form  of  its  internal  government,  and  by  whatever  appellation  it  may  be  known, 
is,  in  the  language  of  Vattel,  'a  moral  person,  having  an  understanding  and  a 
will,  capable  of  possessing  and  acquiring  rights,  and  of  contracting  and 
fulfilling  obligations.'  Vattel  Droit  des  Gens,  liv.  1,  c.  1,  §  4.  Vide,  also, 
Wheaton's  Elem.  of  Internat.  Law,  vol.  1,  c.  2,  §§  1  and  2.* 

"The  definition  given  by  other  writers  on  the  law  of  nations  is  substantially 
the  same,  and,  indeed,  it  is  upon  the  truth  of  this  definition  that  the  whole 
science  of  international  law  is  founded,  since  it  is  evident,  that  it  is  only 
upon  persons,  having  an  understanding  and  a  will,  that  law  can  operate. 
Every  valid  law  implies  the  duty  of  obedience,  and  it  is  only  by  persons  that 
obedience  can  be  rendered."  Duer,  J.,  in  Republic  of  Mexico  v.  De  Arangoiz, 
12  N.  Y.  Super.  Ct.  634,  636,  637  (1856). 


Ch.  1)  STATES  41 

ceiver  of  the  Confederate  States  the  amount  claimed  by  the  plaintiffs, 
and  that  by  virtue  of  such  payment  he  is  discharged  from  the  debt. 
The  second  special  plea  is  substantially  like  the  first,  with  the  further 
averment  that  the  debt  due  to  the  plaintiffs  was  sequestrated  by  the 
decree  of  a  Confederate  district  court  in  Virginia,  upon  the  petition 
of  the  receiver,  who  afterwards  collected  it  with  interest. 

The  plaintiffs  demurred  to  these  pleas ;  but  the  demurrers  were  over- 
ruled. The  case  was  then  submitted  to  the  court  upon  certain  deposi- 
tions and  an  agreed  statement  of  facts.  They  established  the  sale  and 
delivery  of  the  goods,  the  residence  of  the  plaintiffs  and  of  the  deceased 
during  the  war,  and  the  payment  by  the  latter  of  the  debt  in  suit  to  the 
sequestrator  of  the  Confederate  government  under  a  judgment  of  a 
Confederate  district  court.  The  court  below  gave  judgment  for  the 
defendant;  and  the  subsequent  application  of  the  plaintiffs  to  the  Su- 
preme Court  of  Appeals  for  a  supersedeas  was  denied,  that  court  being 
of  opinion  that  the  judgment  was  plainly  right.  Such  a  denial  is  deem- 
ed equivalent  to  an  affirmance  of  the  judgment,  so  far  as  to  authorize 
a  writ  of  error  from  this  court  to  the  Court  of  Appeals.     *     *     * 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

The  question  for  our  determination  arises  upon  the  special  pleas, 
and  relates  to  the  sufficiency  of  the  facts  therein  set  forth  as  a  defence ; 
that  is,  to  the  effect  of  the  sequestration  of  the  debt  by  the  Confederate 
government  as  a  bar  to  the  action. 

There  is,  however,  a  preliminary  question  to  be  considered.  It  is 
contended  by  the  defendant  that  the  record  presents  no  ground  for  the 
exercise  of  our  appellate  jurisdiction.     *     *     * 

We  have  no  doubt  of  our  jurisdiction,  and  we  proceed,  therefore,  to 
the  merits  of  the  case. 

Treating  the  Confederate  enactment  as  a  law  of  the  state  which  we 
can  consider,  there  can  be  no  doubt  of  its  invalidity.  The  constitutional 
provision  prohibiting  a  state  from  passing  a  law  impairing  the  obliga- 
tion of  contracts,  equally  prohibits  a  .state  from  enforcing  as  a  law  an 
enactment  of  that  character,  from  whatever  source  originating.  And 
the  constitutional  provision  securing  to  the  citizens  of  each  state  the 
privileges  and  immunities  of  citizens  in  the  several  states  could  not 
have  a  more  fitting  application  than  in  condemning  as  utterly  void  the 
act  under  consideration  here,  which  Virginia  enforced  as  a  law  of  that 
commonwealth;  treating'  the  plaintiffs  as  alien  enemies  because  of 
their  loyalty  to  the  Union,  and  decreeing  for  that  reason  a  sequestra- 
tion of  debts  due  to  them  by  its  citizens. 

The  defendant,  however,  takes  the  ground  that  the  enactment  of  the 
Confederate  States  is  that  of_an_mdependent  nation,  and  must  be  so 
treated  in  this  case.  HTs~contention  is  substantially  this :  That  the 
Confederate  government,  from  April,  1861,  until  it  was  overthrown  in 
1865,  was  a  government  de  facto,  complete  in  all  its  parts,  exercising 
jurisdiction  over  a  well-^eEned "Territory,  which  included  that  portion 


42  RIGHTS   AND   DUTIES    OF   NATIONS   IN    TIME    OF    PEACE      (Part  1 

of  Virginia  where  the  deceased  resided,  and  as  such  de  facto  govern- 
ment it  engaged  in  war  with  the  United  States,  and  possessed,  and  was 
justified  in  exercising  within  its  territorial  limits,  all  the  rights  of  war 
which  belonged  to  an  independent  nation,  and,  among  them,  that  of 
confiscating  debts  due  by  its  citizens  to  its  enemies. 

In  support  of  this  position,  reference  is  made  to  numerous  instances 
of  de  facto  governments  which  have  existed  in  England  and  in  other 
parts  of  Europe  and  in  America ;  to  the  doctrines  of  jurists  and  writers 
on  public  law  respecting  the  powers  of  such  governments,  and  the  valid- 
ity accorded  to  their  acts ;  to  the  opinion  of  this  court  in  Thorington  v. 
Smith  and  in  the  Prize  Cases;  to  the  concession  of  belligerent  rights 
to  the  Confederate  government;  and  to  the  action  of  the  state  during 
our  own  revolutionary^  war  and  the  period  immediately  following  it. 

We  do  not  question  the  doctrines  of  public  law  which  have  been 
invoked,  nor  their  application  in  proper  cases;  but  it  will  be  found, 
upon  examination,  that  there  is  an  essential  difl;erence  between  the  gov- 
ernment of  the  Confederate  States  and  those  de  facto  governments. 
The  latter  are  of  two  kinds.  One  of  them  is  such  as  exists  after  it  has 
expelled  the  regularly  constituted  authorities  from  the  seats  of  power 
and  the  public  offices,  and  established  its  own  functionaries  in  their 
places,  so  as  to  represent  in  fact  the  sovereignty  of  the  nation.  Such 
was  the  government  of  England  under  the  Commonwealth  established 
upon  the  execution  of  the  king  and  the  overthrow  of  the  loyalists.  As 
far  as  other  nations  are  concerned,  such  a  government  is  treated  as  in 
most  respects  possessing  rightful  authority;  its  contracts  and  treaties 
are  usually  enforced ;  its  acquisitions  are  retained ;  its  legislation  is  in 
general  recognized;  and  the  rights  acquired  under  it  are,  with  few 
exceptions,  respected  after  the  restoration  of  the  authorities  which 
were  expelled.  All  that  counsel  say  of  de  facto  governments  is  justly 
said  of  a  government  of  this  kind.  But  the  Confederate  government 
was  not  of  this  kind.  It  never  represented  the  nation,  it  never  expelled 
the  public  authorities  from  the  country,  it  never  entered  into  any  trea- 
ties, nor  was  it  ever  recognized  as  that  of  an  independent  power.  It 
collected  an  immense  military  force,  and  temporarily  expelled  the  au- 
thorities of  the  United  States  from  the  territory  over  which  it  exercised 
an  usurped  dominion :  but  in  that  expulsion  the  United  States  never  ac- 
quiesced; on  the  contrary,  they  immediately  resorted  to  similar  force 
to  regain  possession  of  that  territory  and  re-establish  their  authority, 
and  they  continued  to  use  such  force  until  they  succeeded.  It  would 
be  useless  to  comment  upon  the  striking  contrast  between  a  government 
of  this  nature,  which,  with  all  its  military  strength,  never  had  undisput- 
ed possession  of  power  for  a  single  day,  and  a  government  like  that  of 
the  Commonwealth  of  England  under  Parliament  or  Cromwell. 

The  other  kind  of  de  facto  governments,  to  which  the  doctrines  cited 
relate,  is  such  as  exists  where  a  portion  of  the  inhabitants  of  a  country 
have  separated  themselves  from  the  parent  state  and  established  an 


Ch.  1)  STATES  43 

independent  government.  The  validity  of  its  acts,  both  against  the 
parent  state  and  its  citizens  or  subjects,  depends  entirely  upon  its  ulti- 
mate success.  IfjLiaii-to-  establish  -itself  permanently,  all  such  acts  \ 
perish  with  it.  If  it  succeed,  and  become  recognized,  its  acts  from  the' 
commencement  of  its  existence  are  upheld  as  those  of  an  independent 
nation.  Such  was  the  case  of  the  state  governments  under  the  old 
Confederation  on  their  separation  from  the  British  crown.  Having 
made  good  their  declaration  of  independence,  everything  they  did  from 
that  date  was  as  valid  as  if  their  independence  had  been  at  once  ac- 
knowledged. Confiscations,  therefore,  of  enemy's  property  made  by 
them,  were  sustained  as  if  made  by  an  independent  nation.  But  if 
they  had  failed  in  securing  their  independence,  and  the  authority  of 
the  king  had  been  re-established  in  this  country,  no  one  would  contend 
that  their  acts  against  him,  or  his  loyal  subjects,  could  have  been  upheld 
as  resting  upon  any  legal  foundation. 

No  case  has  been  cited  in  argument,  and  we  think  none  can  be  found, 
in  which  the  acts  of  a  portion  of  a  State  unsuccessfully  attempting  to 
establish  a  separate  revolutionary  government  have  been  sustained  as  a 
matter  of  legal  right.  As  justly  observed  by  the  late  Chief  Justice  in 
Shortridge  &  Co.  v.  Macon,  decided  at  the  circuit,  and,  in  all  material 
respects,  like  the  one  at  bar : '  "Those  who  engage  in  rebellion  must 
consider  the  consequences.  If  they  succeed,  rebellion  becomes  revolu- 
tion, and  the  new  government  will  justify  its  founders.  If  they  fail, 
all  their  acts  hostile  to  the  rightful  government  are  violations  of  law, 
and  originate  no  rights  which  can  be  recognized  by  the  courts  of  the 
nation  whose  authority  and  existence  have  been  alike  assailed.'''sChase's 
Decisions,  136. 

When  a  rebellion  becomes  organized,  and  attains  such  proportions 
as  to  be  able  to  put  a  formidable  military  force  in  the  field,  it  is  usual 
for  the  established  government  to  concede  to  it  some  belligerent  rights. 
This  concession  is  made  in  the  interests  of  humanity,  to  prevent  the 
cruelties  which  would  inevitably  follow  mutual  reprisals  and  retalia- 
tions. But  belligerent  rights,  as  the  terms  import,  are  rights  which 
exist  only  during  war ;  and  to  what  extent  they  shall  be  accorded  to 
insurgents  depends  upon  the  considerations  of  justice,  humanity,  and 
policy  controlling  the  government.  The  rule  stated  by  Vattel,  that  the 
justice  of  the  cause  between  two  enemies  being  by  the  law  of  nations 
reputed  to  be  equal,  whatsoever  is  permitted  to  the  one  in  virtue  of  war 
is  also  permitted  to  the  other,  applies  only  to  cases  of  regular  war 
between  independent  nations.  It  has  no  application  to  the  case  of  a 
war  between  an  established  government,  and  insurgents  seeking  to 
withdraw  themselves  from  its  jurisdiction  or  to  overthrow  its  authority. 
Halleck's  Int.  Law,  c.  14,  sect.  9.  The  concession  made  to  the  Con- 
federate government  in  its  military  character  was  shown  in  the  treat- 
ment of  captives  as  prisoners  of  war,  the  exchange  of  prisoners,  the 
recognition  of  flags  of  truce,  the  release  of  officers  on  parole,  and  other 


44  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TBIE   OF  PEACE       (Part  1 

arrangements  having  a  tendency  to  mitigate  the  evils  of  the  contest. 
The  concession  placed  its  soldiers  and  military  officers  in  its  service  on 
the  footing  of  those  engaged  in  lawful  war,  and  exempted  them  from 
liability  for  acts  of  legitimate  warfare.  But  it  conferred  no  further  im- 
munity or  any  other  rights.  It  in  no  respect  condoned  acts  against  the 
government  not  committed  by  armed  force  in  the  military  service  of  the 
rebellious  organization;  it  sanctioned  no  hostile  legislation;  it  gave 
validity  to  no  contracts  for  military  stores :  and  it  impaired  in  no  re- 
spect the  rights  of  loyal  citizens  as  they  had  existed  at  the  commence- 
ment of  hostilities.  Parties  residing  in  the  insurrectionary  territory, 
having  property  in  their  possession  as  trustees  or  bailees  of  loyal  citi- 
zens, may  in  some  instances  have  had  such  property  taken  from  them 
by  force ;  and  in  that  event  they  may  perhaps  be  released  from  liability. 
Their  release  will  depend  upon  the  same  principles  which  control  in 
ordinary  cases  of  violence  by  an  unlawful  combination  too  powerful  to 
be  successfully  resisted. 

But,  debts  not  being  tangible  things  subject  to  physical  seizure  and 
removal,  the  debtors  cannot  claim  release  from  liability  to  their  credi- 
tors by  reason  of  the  coerced  payment  of  equivalent  sums  to  an  unlaw- 
ful combination.  The  debts  can  only  be  satisfied  when  paid  to  the  credi- 
tors to  whom  they  are  due,  or  to  others  by  direction  of  lawful  authority. 
Any  sum  which  the  unlawful  combination  may  have  compelled  the 
debtors  to  pay  to  its  agents  on  account  of  debts  to  loyal  citizens  cannot 
have  any  effect  upon  their  obligations ;  they  remain  subsisting  and  unim- 
.paired.  The  concession  of  belligerent  rights  to  the  rebellious  organiza- 
tion yielded  nothing  to  its  pretensions  of  legalit\\  If  it  had  succeeded 
in  its  contest,  It  would  have  protected  the  debtor  from  further  claim 
for  the  debt;  but,  as, it  failed,  the  creditor  may  have  recourse  to  the 
courts  of  the  country  as  prior  to  the  rebellion.  It  would  be  a  strange 
thing  if  the  nation,  after  succeeding  in  suppressing  the  rebellion  and  re- 
estabhshing  its  authority  over  the  insurrectionary  district,  should,  by 
any  of  its  tribunals,  recognize  as  valid  the  attempt  of  the  rebellious 
organization  to  confiscate  a  debt  due  to  a  loyal  citizen  as  a  penalty  for 
his  loyalty.  Such  a  thing  would  be  unprecedented  in  the  history  of 
unsuccessful  rebellions,  and  would  rest  upon  no  just  principle. 

The  immense  power  exercised  by  the  government  of  the  Confederate 
States  for  nearly  four  years,  the  territory  over  which  it  extended,  the 
vast  resources  it  wielded,  and  the  millions  who  acknowledged  its  au- 
thority, present  an  imposing  spectacle  well  fitted  to  mislead  the  mind  in 
considering  the  legal  character  of  that  organization.  It  claimed  to 
represent  an  independent  nation  and  to  possess  sovereign  powers ;  and 
as  such  to  displace  the  jurisdiction  and  authority  of  the  United  States 
from  nearly  half  of  their  territory,  and,  instead  of  their  laws,  to  sub- 
stitute and  enforce  those  of  its  own  enactment.  Its  pretensions  being 
resisted,  they  were  submitted  to  the  arbitrament  of  war.  In  that  con- 
test the  Confederacy  failed;  and  in  its  failure  its  pretensions  were  dis- 


Ch.  1)  STATES  45 

sipated,  its  armies  scattered,  and  the  whole  fabric  of  its  government 
broken  in  pieces.  The  very  property  it  had  amassed  passed  to  the 
nation.  The  United  States  during  the  whole  contest,  never  for  one 
moment  renounced  their  claim  to  supreme  jurisdiction  over  the  whole 
country,  and  to  the  allegiance  of  every  citizen  of  the  republic.  They 
never  acknowledged  in  any  form,  or  through  any  of  their  departments, 
the  lawfulness  of  the  rebellious  organization  or  the  validity  of  any  of 
its  acts,  except  so  far  as  such  acknowledgment  may  have  arisen  from 
conceding  to  its  armed  forces  in  the  conduct  of  the  war  the  standing 
and  rights  of  those  engaged  in  lawful  warfare.  They  never  recognized 
its  asserted  power  of  rightful  legislation. 

There  is  nothing  in  the  language  used  in  Thorington  v.  Smith,  8  Wall. 
1,  19  L.  Ed.  361,  which  conflicts  with  these  views.  In  that  case,  the 
Confederate  govei-nment  is  characterized  as  one  of  paramount  force, 
and  classed  among  the  governments  of  which  the  one  maintained  by 
Great  Britain  in  Castine,  from  September,  1814,  to  the  treaty  of  peace 
in  1815,  and  the  one  maintained  by  the  United  States  in  Tampico,  dur- 
ing our  war  with  Mexico,  are  examples.  Whilst  the  British  retained 
possession  of  Castine,  the  inhabitants  were  held  to  be  subject  to  such 
laws  as  the  British  government  chose  to  recognize  and  impose.  Whilst 
the  United  States  retained  possession  of  Tampico,  it  v/as  held  that  it 
must  be  regarded  and  respected  as  their  territoiy.  The  Confederate 
government,  the  court  observed,  differed  from  these  temporary  gov- 
ernments in  the  circumstance  that  its  authority  did  not  originate  in 
lawful  acts  of  regular  war :  but  it  was  not,  on  that  account,  less  actual 
or  less  supreme;  and  its  supremacy,  while  not  justifying  acts  of 
hostility  to  the  United  States,  "made  obedience  to  its  authority  in  civil 
and  local  matters,  not  only  a  necessity,  but  a  duty."  All  that  was  meant 
by  this  language  was,  that  as  the  actual  supremacy  of  the  Confederate 
government  existed  over  certain  territory,  individual  resistance  to  its 
authority  then  would  have  been  futile,  and,  therefore,  unjustifiable. 
In  the  face  of  an  overwhelming  force,  obedience  in  such  matters  may 
often  be  a  necesgity,  and,  in  the  interests  of  order,  a  duty.  No  conces- 
sion is  thus  made  to  the  rightfulness  of  the  authority  exercised. 

Nor  is  there  anything  in  the  decision  of  this  court  in  the  Prize  Cases 
which  militates  against  the  views  expressed.  It  was  there  simply  held, 
that  when  parties  in  rebellion  had  occupied  and  held  in  a  hostile  man- 
ner a  portion  of  the  territory  of  the  country,  declared  their  independ- 
ence, cast  off  their  allegiance,  organized  armies,  and  commenced  hostili- 
ties against  the  government  of  the  United  States,  war  existed ;  that 
the  President  was  bound  to  recognize  the  fact,  and  meet  it  without  wait- 
ing for  the  action  of  Congress ;  that  it  was  for  him  to  determine  what 
degree  of  force  the  crisis  demanded,  and  whether  the  hostile  forces 
were  of  such  magnitude  as  to  require  him  to  accord  to  them  the  char- 
acter of  belligerents ;  and  that  he  had  the  right  to  institute  a  blockade 
of  ports  in  their  possession,  which  neutrals  were  bound  to  recognize. 


46  RIGHTS   AND   DUTIES   OF   NATIONS   IN    TIME    OF   PEACE      (Part  1 

It  was  also  held  that  as  the  rebellious  parties  had  formed  a  confederacy, 
and  thus  become  an  organized  body,  and  the  territory  dominated  by 
them  was  defined,  and  the  President  had  conceded  to  this  organization 
in  its  military  character  belligerent  rights,  all  the  territory  must  be 
regarded  as  enemy's  territory,  and  its  inhabitants  as  enemies,  whose 
property  on  the  high  seas  would  be  lawful  subjects  of  capture.  There 
is  nothing  in  these  doctrines  which  justified  the  Confederate  States  in 
claiming  the  status  of  foreign  states  during  the  war,  or  in  treating  the 
inhabitants  of  the  loyal  states  as  alien  enemies. 

Nor  is  there  anything  in  the  citations  so  often  made  from  Wheaton 
and  Vattel,  as  to  the  rights  of  contending  parties  in  a  civil  war,  which, 
if  properly  applied,  militates  against  these  views.  After  stating  that, 
according  to  Grotius,  a  civil  war  is  public  on  the  side  of  the  established 
government,  and  private  on  the  part  of  the  people  resisting  its  authority, 
Wheaton  says :  "But  the  general  usage  of  nations  regards  such  a  war 
as  entitling  both  the  contending  parties  to  all  the  rights  of  war  as 
against  each  other,  and  even  as  respects  neutral  nations."  Wheaton, 
Int.  Law,  sect.  296.  The  writer  is  here  referring  to  the  consideration 
with  which  foreign  nations  treat  a  civil  war  in  another  country.  So 
far  as  they  are  concerned,  the  contending  parties  to  such  a  war,  once 
recognized  as  belligerents,  are  regarded  as  entitled  to  all  the  rights  of 
war.  As  between  the  belligerent  parties,  foreign  nations,  from  general 
usage,  are  expected  to  observe  a  strict  neutrality.  The  language  used 
has  no  reference  to  the  rights  which  a  sovereign  must  concede,  or  is 
expected  to  concede,  to  insurgents  in  armed  rebellion  against  his  au- 
thority. Upon  the  doctrine  stated  in  the  citation  the  United  States 
acted  towards  the  contending  parties  in  the  civil  war  in  South  America. 
In  speaking  on  this  subject,  in  the  case  of  The  Santissima  Trinidad, 
7  Wheat.  283,  5  L.  Ed.  454,  this  court  said :  "The  government  of  the 
United  States  has  recognized  the  existence  of  a  civil  war  between  Spain 
and  her  colonies,  and  has  avowed  a  determination  to  remain  neutral 
between  the  parties,  and  to  allow  to  each  the  same  rights  of  asylum 
and  hospitality  and  intercourse.  Each  party  is,  therefore,  deemed  by 
us  a  belligerent  nation,  having,  so  far  as  concerns  us,  the  sovereign 
rights  of  war,  and  entitled  to  be  respected  in  the  exercise  of  those 
rights.  We  cannot  interfere  to  the  prejudice  of  either  belligerent,  with- 
out making  ourselves  a  party  to  the  contest,  and  departing  from  the 
position  of  neutrality." 

Vattel  says :  "A  civil  war  breaks  the  bands  of  society  and  govern- 
ment, or,  at  least,  suspends  their  force  and  effect;  it  produces  in  the 
nation  two  independent  parties,  who  consider  each  other  as  enemies, 
and  acknowledge  no  common  judge.  Those  two  parties,  therefore, 
must  necessarily  be  considered  as  thenceforward  constituting  at  least 
for  a  time,  two  separate  bodies,  two  distinct  societies.  *  *  *  Qn 
earth  they  have  no  common  superior.  They  stand,  therefore,  in  pre- 
cisely the  same  predicament  as  two  nations  who  engage  in  a  contest, 


Ch.  1)  STATES  47 

and,  being  unable  to  come  to  an  agreement,  have  recourse  to  arms. 
This  being  the  case,  it  is  very  evident  that  the  common  laws  of  war — 
those  maxims  of  humanity,  moderation,  and  honor,  which  we  have 
already  detailed  in  the  course  of  this  work — ought  to  be  observed  by 
both  parties  in  every  civil  war.  For  the  same  reasons  which  render 
the  observance  of  those  maxims  a  matter  of  obligation  between  state 
and  state,  it  becomes  equally  and  even  more  necessary  in  the  unhappy 
circumstance  of  two  incensed  parties  lacerating  their  common  country." 
Vattel,  Law  of  Nations,  p.  425.  All  that  Vattel  means  by  this  language 
is,  that  in  a  civil  war  the  contending  parties  have  a  right  to  claim  en- 
forcement of  the  same  rules  which  govern  the  conduct  of  armies  in 
wars  between  independent  nations — rules  intended  to  mitigate  the 
cruelties  which  would  attend  mutual  reprisals  and  retaliations.  He  has 
no  reference  to  the  exercise  of  legislative  power  by  either  belligerent 
in  furtherance  of  its  cause.  The  validity  of  such  legislation  depends 
not  upon  the  existence  of  hostilities,  but  upon  the  ultimate  success  of 
the  party  by  which  it  is  adopted,  s 

It  is  unnecessary  to  pursue  the  subject  further.  Whatever  de  facto 
character  may  be  ascribed  to  the  Confederate  government  consists 
solely  in  the  fact,  that  it  maintained  a  contest  with  the  United  States 
for  nearly  four  years,  and  dominated  for  that  period  over  a  large  extent 
of  territory.  KVhen  its  mHtary  fqrceTTyl^f^  overthrown,  it  utterly 
perished^  and  \vtth  it  all  its  enactments.^  Whilst  it  existed,  it  was  re- 
garded, as  said  in  Thorington  v.  Smith^  "as  simply  the  military  repre- 
sentative of  the  insurrection  against  the_autlK)rity  of  the  United  States." 
8  Wall.  1719  L.  E:d.'361 ;  Keppel's  AdniVs"  v7,Petersburg  Railroad  Co., 
Chase.  167,  Fed.  Cas.  No.  7722. 

Whilst  thus  holding  that  there  was  no  validity  in  any  legislation 
of  the  Confederate  States  which  this  court  can  recognize,  it  is  proper 
to  observe  that  the  legislation  of  the  states  stands  on  very  different 
grounds.  The  same  general  form  of  government,  the  same  general 
laws  for  the  administration  of  justice  and  the  protection  of  private 
rights,  which  had  existed  in  the  states  prior  to  the  rebellion,  remained 
during  its  continuance  and  afterwards.  As  far  as  the  acts  of  the  states 
did  not  impair,  or  tend  to  impair,  the  supremacy  of  the  national  au- 
tliority,  or  the  just  rights  of  citizens  under  the  Constitution,  they  are, 
in  general,  to  be  treated  as  valid  and  binding.  As  A^^e  said  in  Horn  v. 
Lockhart,  17  Wall.  570,  21  L.  Ed.  657:  "The  existence  of  a  state  of 
insurrection  and  war  did  not  loosen  the  bonds  of  society,  or  do  away 
with  civil  government  or  the  regular  administration  of  the  laws.  Or- 
der was  to  be  preserved,  police  regulations  maintained,  crime  prosecut- 
ed, property  protected,  contracts  enforced,  marriages  celebrated,  estates 
settled,  and  the  transfer  and  descent  of  property  regulated,  precisely 
as  in  time  of  peace.  No  one,  that  we  are  aware  of,  seriously  questions 
the  validity  of  judicial  or  legislative  acts  in  the  insurrectionary  states 
touching  these  and  kindred  subjects,  where  they  were  not  hostile  in  their 


48  BIGHTS   AND  DUTIES   OF   NATIONS  IN   TIME  OF  PEACE      (Part  1 

purpose  or  mode  of  enforcement  to  the  authority  of  the  national  gov- 
ernment, and  did  not  impair  the  rights  of  citizens  under  the  Constitu- 
tion,"   The  same  doctrine  has  been  asserted  in  numerous  other  cases. 

It  follows  from  the  views  expressed  that  the  state  court  erred  in 
overruling  the  demurrers  to  the  special  pleas.  Those  demurrers  should 
have  been  sustained,  and  the  plaintiffs  should  have  had  judgment  upon 
the  agreed  statement  of  facts  for  the  amount  of  their  claim,  with  in- 
terest from  its  maturity,  deducting  in  the  computation  of  time  the  peri- 
od between  the  27th  of  April,  1861,  at  which  date  the  war  is  considered 
to  have  commenced  in  Virginia,  and  the  2d  of  April,  1866,  when  it  is 
deemed  to  have  closed  in  that  state.  The  Protector,  12  Wall.  700, 
20  L.  Ed.  463;  Brown  v.  Hiatts,  15  Wall.  177,  21  L.  Ed.  128. 

The  action  of  the  Court  of  Appeals  of  Virginia  in  refusing  a  super- 
sedeas of  the  judgment  of  the  circuit  court  must,  therefore,  be  revers- 
ed, and  the  cause  remanded  for  further  proceedings  in  accordance 
with  this  opinion  and  it  is 

So  ordered.  ^° 

i«  See  Keith  v.  Clark,  97  U.  S.  454,  24  L.  Ed.  1071  (1878),  holding  that  the 
state  of  Tennessee,  notwithstanding  its  attempt  to  secede,  remained  a  state 
01  the  Union,  and  that  its  legislation  during  the  period  of  secession  was  valid, 
in  so  far  as  it  was  not  contrary  to  the  Constitution  of  the  United  States. 

In  Baldy  v.  Hunter,  171  U.  S.  388,  18  Sup.  Ct.  890,  43  L.  Ed.  208  (1897), 
Mr.  Justice  Harlan  says  (after  an  elaborate  enumeration  and  discussion 
of  the  leading  cases  dealing  with  the  status  of  Confederate  States)  :  "From 
these  cases  it  may  be  deduced  that  the  transactions  between  persons  actually 
residing  within  the  territory  dominated  by  the  government  of  the  Con- 
federate States  were  not  invalid  for  the  reason  only  that  they  occurred 
under  the  sanction  of  the  laws  of  that  government  or  of  any  local  govern- 
ment recognizing  its  authority ;  that,  within  such  territory,  the  preserva- 
tion of  order,  the  maintenance  of  police  regulations,  the  prosecution  of  crimes, 
the  protection  of  property,  the  enforcement  of  contracts,  the  celebration 
of  marriages,  the  settlement  of  estates,  the  transfer  and  descent  of  prop- 
erty, and  similar  or  kindred  subjects  were,  during  the  war,  under  the  control 
of  the  local  governments  constituting  the  so-called  Confederate  States;  that 
what  occurred  or  was  done  in  respect  of  such  matters  under  the  authority  of 
the  laws  of  these  local  de  facto  governments  should  not  be  disregarded  or 
held  to  be  invalid  merely  because  those  governments  were  organized  in  hos- 
tility to  the  Union  established  by  the  national  Constitution ;  this,  because  the 
existence  of  war  between  the  United  States  and  the  Confederate  States  did 
not  relieve  those  who  were  within  the  insurrectionary  lines  from  the  neces- 
sity of  civil  obedience,  nor  destroy  the  bonds  of  society,  nor  do  away  with 
civil  government  or  the  regular  administration  of  the  laws,  and  because 
transactions  in  the  ordinary  course  of  civil  society  as  organized  within  the 
enemy's  territory,  although  they  may  have  indirectly  or  remotely  promoted 
the  ends  of  the  de  facto  or  unlawful  government  organized  to  effect  a  dissolu- 
tion of  the  Union,  were  without  blame  'except  when  proved  to  have  been 
entered  into  with  actual  intent  to  further  invasion  or  insurrection' ;  and 
that  judicial  and  legislative  acts  in  the  respective  states  composing  the  so-call- 
ed Confederate  States  should  be  respected  by  the  courts  if  they  were  not  hos- 
tile in  their  purpose  or  mode  of  enforcement  to  the  authority  of  the  national 
government,  and  did  not  impair  the  rights  of  citizens  under  the  Constitution." 

Generally  de  facto  judgments  are  valid,  as  in  the  case  of  a  Spanish  judg- 
ment made  in  Louisiana  after  the  cession,  but  before  delivery  of  possession 
to  the  United  States ;  for  it  was  the  judgment  of  a  competent  Spanish  tribu- 
nal, having  jurisdiction  of  the  case,  and  rendered  whilst  the  country,  though 
ceded,  was,  de  facto,  in  the  possession  of  Spain,  and  subject  to  Spanish  laws, 


Ch.  1)  '  r  STATES  49 

GUSTAVE  GAULTIER  et  al. 

(Court  of  Cassation  of  France,  1911.    116  Bulletin  des  Arrets  de  la  Cour  de 
Cassation  Rendus  en  Matiere  Criminelle,  453.) 

The  question  of  the  status  of  the  Papacy  was  finally  presented  in  a 
juridical  way  in  the  following  manner:  / 

On  July  4,  1909,  upon  the  occasion  of  the  beatification  of  Jeanne 
d'Arc,  flags  of  white  and  yellow,  the  Pontifical  colors,  were  flown  in 
certain  localities  from  windows  of  various  buildings  which  faced  the 
street.  In  the  town  of  Mans,  prosecutions  were  begun  for  the  vio- 
lation of  a  decree  of  the  prefect  of  La  Sarthe,  of  February  16,  1894. 
The  persons  accused  of  infringement  of  this  decree  were  prosecuted  be- 
fore the  Police  Court  of  Mans.  They  were  acquitted  by  a  judgment 
of  this  Court  under  date  of  July  26,  1909.'' 

The  Court,  Whereas,  M.  X.  has  been  prosecuted  for  having  dis- 
played, on  July  4  last,  from  the  window  of  his  house  overlooking  the 
public  street,  flags  of  the  Holy  See,  and  for  having  thus  violated  the 
Prefectoral  Decree  of  February  16,  1894,  reading  as  follows : 

"Article  1.  The  displaying  and  the  bearing  of  flags,  either  on  public 
streets  or  in  buildings,  grounds  and  places,  freely  open  to  the  public 
are  interdicted  in  the  Department  of  La  Sarthe. 

"Article  2.  The  flags  of  French  or  foreign  national  colors  and  those 
serving  as  insignia  for  authorized  or  approved  societies  are  excepted 
from  this  measure ;" 

Whereas,  all  the  citizens,  without  exception,  are  subject  to  the  laws 
regularly  promulgated,  as  well  as  to  the  regulations  legally  issued  by 
the  administrative  authorities ; 

Whereas,  the  application  of  these  regulations  should  be  restricted 
to  the  cases  for  which  they  provide,  and,  whereas,  the  present  case  is 
concerned  solely  with  determining  whether  the  Pontifical  flag  should 
be  included  or  not  in  the  category  of  flags  exceptionally  authorized ; 

Wliereas,  the  personal  flag  of  a  sovereign  enjoys  the  same  privilege 
as  that  of  a  State ; 

Whereas,  until  the  law  of  December  9,  1905,  was  passed,  the  quality 
of  the  sovereign  was,  without  dispute,  accorded  to  the  Pope  by  all 
foreign  Powers,  with  all  the  prerogatives  attached  to  sovereignty, 
among  them  that  of  having  a  special  flag  with  colors  distinctive  of 

and  such  judgments,  so  far  as  they  affect  the  private  rights  of  the  parties 
thereto,  must  be  deemed  valid.  Keeue  v.  McDonough,  8  Pet.  308,  8  L.  Ed. 
955  (1834);  Trevino  v.  Fernandez,  13  Tex.  630,  662,  666  (1855);  Daniel  v. 
Hutcheson,  86  Tex.  51,  22  S.  W.  933  (1893),  affirming  the  validity  of  judgments 
of  military  courts  established  in  Texas  during  the  reconstruction  period. 

i'^  Statement  taken  from  an  artiple  by  Gilbert  Gidel,  "Quelques  Idees  sur 
la  Condition  Internationale  de  la  papaut6,"  in  Revue  G^n6rale  de  Droit  In- 
ternational Public,  tome  XVIII,  p.  589  (1911). 

The  text  of  the  judgment  is  likewise 'taken  from  this  article.  Id.  595,  590, 
note. 

Scott  Int. Law — 4 


50  RIGHTS   AND   DUTIES    OP   NATIONS    IN    TIME    OF   PEACE      (Part  1 

this  sovereignty,  and  whereas,  up  to  the  same  period  it  is  just  as  cer- 
tain that  this  flag  enjoyed  the  exception  provided  for  by  the  aforemen- 
tioned decree; 

Whereas,  the  lavr  of  December  9,  1905,  which  regulates  a  question  of 
internal  politics,  has  not  had  and  could  not  have  the  effect  of  modify- 
ing the  status  previously  acquired  by  the  Holy  See,  and  still  less  the 
eft'ect  of  suppressing  ipso  facto  the  papacy  and  the  character  of  sov- 
ereign attached  to  its  representative ; 

Whereas,  the  latter,  moreover,  has  not  lost  this  character  with  re- 
gard to  persons  who  have  continued  to  be  officially  represented  be- 
fore it,  and  before  whom  it  has  not  ceased  to  be  officially  represented ; 

Whereas,  the  suppression  of  diplomatic  relations  between  France 
and  the  Papacy,  which  intervened  after  this  law,  cannot  have  any 
other  consequences  than  those  which  would  result  from  the  suppression  ^ 
and  interruption  of  such  relations  between  France  and  any  other  for- 
eign Power,  a  suppression  or  interruption  which  would  not  suffice  to 
cause  this  Power  to  disappear  from  among  the  nations  and  to  cause  the 
colors  which  belong  to  it  to  be  considered  in  future  as  non-existent, 
and,  in  consequence,  interdicted; 

Whereas,  consequently,  the  Pontifical  flag  should  continue  to  be  in- 
cluded among  the  foreign  flags  enjoying  the  exception  provided  for  by 
Article  2  of  the  Prefectoral  Decree  of  February  16,  1894,  and  where- 
as, in  displaying  it  the  accused  could  not  be  guilty  of  violating  the  said 
decree ; 

For  these  reasons : 

Dismisses  the  complaint  against  X.  and  acquits  him  without  costs. 

From  this  judgment  an  appeal  was  taken  to  the  Court  of  Cassation, 
which  tribunal,  on  May  5,  1911,  delivered  the  following  judgment: 

The^  Court,  having  heard  Maitre  La  Borde,  councillor,  in  his  report, 
Maitre  Felix  Bonnet,  practicing  attorney,  in  his  statements,  and  M. 
Baudouin,  attorney  general,  in  his  motions: 

In  view  of  the  eighteen  appeals  made  by  the  office  of  the  public  pros- 
ecutor before  the  Police  Court  of  Mans  from  eighteen  judgments,  dat- 
ed July  26,  1909,  by  virtue  of  which  this  Court  pronounced  the  release 

C\j   *  '1*  '^  ^ 

Whereas,  the  judgments,  rendered  on  the  same  day,  are  conceived 
in  the  same  terms  and  impugned  for  the  same  reasons ; 

Joining  the  appeals  and  rendering  judgment  by  one  sole  decree; 

In  view  of  the  petition  of  the  office  of  the  public  prosecutor  before 
the  Police  Court  of  Mans; 

In  view  of  the  Decree  of  the  Prefect  of  La  Sarthe  of  February  16, 
1894,  reading  as  follows: 

"Article  1.  The  displaying  and  the  bearing  of  flags,  either  on  pub- 
lic streets  or  in  buildings,  grounds  and  places,  freely  open  to  the  pub- 
lic, are  interdicted  in  the  Department  of  La  Sarthe. 

Scott  Int.Law 


Ch.  1)  STATES  51 

"Article  2.  The  flags  of  France  or  foreign  national  colors  and  those 
serving  as  insignia  for  authorized  or  approved  societies  are  excepted 
from  this  measure ;" 

In  viev^  also  of  Article  471,  No.  15,  of  the  Penal  Code: 

Whereas,  the  Pontifical  flag  of  white  and  yellow,  is  no  longer  a  flag 
of  "foreign  national  colors;  whereas,  in  fact,  the  sovereignty  of  which 
it  was  formerly  the  symbol,  has  ceased  to  exist  as  a  result  of  the  re- 
union of  the  Pontifical  states  with  the  Kingdom  of  Italy ; 

Whereas,  on  the  other  hand,  the  Pope  does  not  represent  a  society 
in  the  sense  of  Article  2  of  the  aforementioned  decree ;  whereas,  his  flag 
cannot,  therefore,  be  considered  as  the  insignia  of  an  authorized  or  ap- 
proved society ; 

Whereas,  it  is  established  by  the  impugned  judgments  that  the  ac- 
cused displayed  upon  a  public  street  flags  of  white  and  yellow ;  where- 
as, their  release  is  based  on  the  fact  that  these  flags  were  included  in 
the  exception  pronounced  by  Article  2  of  the  Decree  which  served  as  a 
basis  of  the  prosecutions ; 

Whereas,  in  deciding  thus,  the  police  judge  has  falsely  applied  this 
decree  and  violated  Article  471,  No.  15,  of  the  Penal  Code; 

For  these  reasons. 

Quashes  and  annuls  the  eighteen  judgments  of  the  Police  Court  of 
Mans,  mentioned  at  the  beginning  of  the  present  decree;  and  refers 
the  cases  and  the  accused  for  a  new  decision  to  the  Police  Court  of  La 
Fleche,  designated  for  this  purpose  by  special  deliberation  held  in  the 
Council  Chamber. 

Orders,  et  cetera. 

Thus  judged  and  pronounced,  et  cetera.    Criminal  Chamber.^* 

18  The  Court  of  Appeal  of  La  Fleche,  to  which  the  case  was  sent  for  decision 
by  the  Court  of  Cassation,  in  accordance  with  its  opinion  reversed  the  deci- 
sion. It  did  not,  however,  decide  the  question  upon  its  merits.  It  found  as 
a  fact,  that  the  prefect's  decree  had  not  been  published,  as  was  required  by 
law,  and  that  because  of  tlie  lack  of  publication,  the  defendants  were  not 
guilty  of  its  violation. 

For  the  text  of  this  decision  spp  Professor  Gidel's  article  in  Revue  Generale 
de  Droit  International  Public,  Tonio  XVIII  (1911)  pp.  597,  598,  note.     , 

The  international  status  of  the  Papacy  has  given  rise  to  much  discussion 
and  controversy.  For  literature  on  the  subject  see  also  Donnedieu  de  Vabres, 
"La  SouverainetS  du  Pape  et  la  Separation  des  Eglises  et  de  I'Etat,"  ibid., 
Tome  XXI  (1914)  p.  339 ;  "Saint-Siege — Guerre  de  1914 — Emploi  international 
du  drapeau  de  la  Papaute.  Transport  des  representauts  diplomatiques  du 
Saint-Siege  sur  un  navire  battant  pavilion  pontifical,"  Chronique  des  fait&  lu- 
ternationaux,  ibid.,  Tome  XXIII  (1916)  p.  606. 


53  EIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME    OP  PEACE      (Part  1 

APPEAL  OF  CHESNELONG. 

(Court  of  Cassation  of  France,  1913.    118  Bulletin  des  Arrets  de  la  Cour  de 
Cassation  Rendus  en  Matiere  Criminelle,  557.) 

On  a  similar  statement  of  facts, 

The  Police  Court  of  Sens,  sitting  in  appeal,  has  rendered  at  the  pub- 
lic hearing  of  December  18,  1912,  the  judgment,  the  tenor  of  which  is 
as  follows : 

On  the  matter  of  publicity:  Whereas,  the  Prefectoral  Decree  of 
February  17,  1894,  could  be  executory  at  Sens  only  on  condition  that  it 
was  pubHshed  there; 

Whereas,  since  this  decree  does  not  contain  the  injunction  that  it 
be  published,  and  since  the  fact  of  its  publication  is  formally  denied, 
it  was  incumbent  upon  the  office  of  the  public  prosecutor  to  present 
proof  to  that  effect; 

Whereas,  its  insertion  in  the  collection  of  the  Administrative  Rec- 
ords of  the  Prefecture  of  Yonne,  its  entry  at  its  date  upon  the  Register 
of  the  Prefectoral  Decrees  preserved  in  the  office  of  the  Mayor  of  Sens, 
the  production  of  a  poster  printed  at  Auxerre,  in  February,  1894,  and 
the  certificate  of  posting  issued  by  the  Ma^'or  of  Sens,  prove  that  the 
said  decree  was  published  in  the  customary  form ; 

Whereas,  the  line  of  reasoning  which  consists  of  maintaining  that 
the  insertion  of  a  decree  in  the  Collection  of  Administrative  Records  of 
the  Department  could  not  be  considered  as  peremptory,  the  entr}^  in 
the  Ivlayor's  office  upon  the  Register  of  Prefectoral  Decrees,  and  its 
printing  in  the  form  of  posters  tend  only  to  prove  that  the  decree  was 
brought  to  the  knowledge  of  the  Mayor; 

Whereas,  since  this  result  was  attained  by  the  execution  of  the  first  of 
these  formalities,  the  two  others  have  no  other  purpose  than  that  of 
bringing  the  provisions  of  the  decree  to  the  knowledge  of  all ; 

Whereas,  the  insertion  of  the  Decree  of  February  17,  1894,  into 
the  Register  of  Decrees,  both  at  the  Prefecture  and  at  the  office  of  the 
Mayor  of  Sens,  is  not  disputed ; 

Whereas,  it  was  not  incumbent  upon  the  office  of  the  public  pros- 
ecutor to  prove  that  the  poster  produced  at  the  pleadings  is  taken  from 
the  archives  of  the  Mayor's  office,  its  production  having  for  sole  ob- 
ject the  establishment  of  the  fact  that  posters  were  indeed  printed  in  the 
principal  town  of  the  Department  in  February  1894,  for  the  purpose  of 
publishing  the  Prefectoral  Decree; 

Whereas,  it  would  be  inadmissible  to  consider  that  posters  printed 
by  the  direction  of  the  Prefectoral  Administration  did  not  reach  their 
ordinary  destination,  that  is  to  say,  were  not  transmitted  to  all  the 
Mayors  of  the  Department  and  that  the  latter,  conformable  to  the  es- 
tabHshed  customs,  did  not  cause  them  to  be  posted  in  the  places  intended 
for  that  purpose; 


Ch.  1)  STATES  53 

Whereas,  the  certificate  of  posting  is  based  not  upon  the  personal 
recollection  of  the  Mayor  of  Sens,  but  upon  the  administrative  cus- 
toms regarding  the  publication  of  Pref ectoral  Decrees  at  Sens ; 

Whereas,  finally,  no  material  proof  of  the  posting  of  a  poster  of 
eighteen  years  ago  can  be  demanded,  lest  all  decrees  posted  a  number 
of  years  ago  should  be  considered  as  inexecutable  and  bereft  of  sanc- 
tion; 

Whereas,  M.  Chesnelong  maintains,  to  no  avail,  that  "all  of  these 
alleged  presumptions  could  not  countervail  the  decisive  proof  to  the 
contrary  resulting  from  the  fact  that  the  Decree  of  Feljruary  17,  1894, 
is  not  mentioned  upon  the  posting  Register  of  the  office  of  the  Mayor 
of  Sens"; 

Whereas,  in  fact  no  such  posting  Register  exists  at  Sens,  but  only 
a  register  mentioning  "all  publications  made  either  with  the  accom- 
paniment of  a  drum  or  with  that  of  a  trumpet,"  which,  consequently, 
cannot  mention  a  decree  intended  to  be  pubHshed  by  means  of  posting; 

Whereas,  this  intention  results  incontestably  from  the  fact  that  the 
decree  was  printed  in  the  form  of  posters. 

On  the  Application  of  the  Decree  of  February  17,  1894,  to  the  facts 
of  the  Arraignment : 

Wliereas  in  penal  matters  restrictive  interpretation  is  necessary; 

Whereas,  the  Decree  of  February  17,  1894,  interdicts  in  a  general 
way  the  displaying  and  the  bearing  of  flags ;  whereas,  no  provision  of 
this  decree  deals  especially,  as  is  asserted  by  the  appellant,  with  the  ex- 
hibition of  the  red  flag,  or  indicates  that  it  constitutes  a  momentary 
measure  intended  to  terminate  with  the  circumstances  that  motivat- 
ed it; 

Whereas,  the  said  decree  excepts  from  the  interdiction  only  "the  flags 
of  the  French  or  foreign  national  colors  and  those  serving  as  the  in- 
signia of  authorized  or  approved  societies" ; 

Whereas,' the  flag  of  white  and  yellow,  the  national  emblem  of -the 
former  Pontifical  States,  cannot  be  included  in  this  exception ;  where- 
as, ih  fact,  these  States  have  ceased  to  exist  as  a  result  of  their  annexa- 
tion to  the  Kingdom  of  Italy;  whereas,  even  if,  contrary  to  the  prin- 
ciples of  international  law,  an  extensive  interpretation,  placing  the  per- 
sonal colors  of  a  sovereign  upon  the  same  basis  as  those  of  foreign 
countries,  were  admitted,  it  would  still  be  necessary,  contrary  to  his- 
torical truth,  to  regard  the  white  and  yellow  emblem  as  the  personal 
flag  of  the  Pope,  and  to  attribute  to  the  latter  the  character  of  a  sov- 
ereign ; 

Whereas,  there  is  no  doubt  that  since  the  disappearance  of  the  Pon- 
tifical States  in  September,  1870,  the  Pope  has  lost  the  usual  attri- 
butes of  sovereignty,  and  whereas,  a  Pontifical  State  no  longer  ex- 
ists ; 

Whereas,  the  Papacy  does  in  fact  no  longer  possess  either  territory, 
an  army  or  subjects;   whereas,  it  no  longer  possesses  the  right  of  civil 


54  .  RIGHTS   AND  DUTIES   OP   NATIONS  IN   TIME   OF  PEACE      (Part  1 

jurisdiction,  and  whereas,  all  matters  pertaining  to  the  civil  status  of 
the  inhabitants  of  the  Vatican  come  within  the  province  of  the  civil  au- 
thorities of  the  Kingdom  of  Italy; 

Whereas,  the  Law  of  Guarantees  has  not  conferred  upon  the  Pope 
the  sovereign  right  of  international  law,  which  alone  confers  upon  those 
invested  therewith  the  quality  which  this  right  attributes  to  the  real 
sovereigns ; 

Whereas,  according  to  the  terms  of  the  Decree  of  October  9,  1870, 
and  of  the  Law  of  Guarantees  of  May  13,  1871,  the  Pope  has  only  the 
usufruct  of  the  Pontifical  residences  which,  save  certain  restrictions 
relative  to  the  "dignity,  inviolability,  and  personal  prerogatives"  of 
the  Pope  in  his  capacity  as  Chief  of  the  Catholic  Church,  remain  sub- 
ject to  the  Italian  laws; 

Whereas,  the  Law  of  Guarantees  does  not  even  admit  the  extrater- 
ritoriality of  the  places  occupied  by  the  Pope ; 

Whereas,  if  the  internal  legislation  of  the  Italian  States  confers  up- 
on the  Pope  certain  personal  privileges  which  ordinarily  form  the 
appenage  of  sovereignty,  particularly  the  right  of  negative  and  passive 
legation,  which  he  exercises  under  quite  exceptional  conditions,  his  rep- 
resentatives not  being  real  diplomatic  agents  and  concordats  not  being 
comparable  to  the  treaties  between  nations,  it  remains  none  the  less  true 
that  from  the  international  point  of  view  the  Pope  must  no  longer  be 
considered  as  a  Chief  of  State; 

Whereas,  under  these  circumstances,  the  Pontifical  flag,  in  so  far 
as  it  would  be  the  symbol  of  a  State  or  the  insignia  of  a  Chief  of 
State,  has  ceased  to  exist,  and  whereas,  any  element  which  might  re- 
move the  said  emblem  from  the  interdiction  formulated  by  the  Pre- 
fectoral  Decree,  which  alone  might  make  it  either  a  national  flag  or 
the  insignia  of  an  authorized  or  recognized  society,  is  totally  lacking; 

For  these  reasons. 

Adhering  for  the  rest  to  the  reasons  of  the  first  judge, 

Confirms  the  judgment  of  the  Police  Court  of  Sens,  under  date  of 
July  4,  1912,  from  which  appeal  has  been  made,  declares  that  this  judg- 
ment shall  be  given  its  full  and  complete  execution,  and  condemns  the 
appellant  to  all  the  costs  of  the  action. 

From  this  judgment  an  appeal  was  taken  to  the  Court  of  Cassa- 
tion, which  tribunal,  on  June  12,  1913,  delivered  the  following  judg- 
ment : 

The  Court,  having  heard  the  councillor  Georges  Lecherbonnier,  in 
his  report,  Maitre  Mihura,  attorney,  in  his  statements,  and  the  attorney 
general  Rambaud,  in  his  motions ; 

On  the  first  plea,  based  upon  the  violation  of  Articles  471,  §  15,  of 
the  Penal  Code,  and  7  of  the  Law  of  April  20,  1810,  to  the  effect  that 
the  impugned  judgment  declared  executory  a  prefectoral  decree,  the 
pubhcation  of  which  was  disputed,  without  the  adduction  of  the  proof 


Ch.  1)  STATES  55 

of  the  said  publication  on  the  part  of  the  office  of  the  public  pros- 
ecutor. 

Whereas,  since  the  prefectoral  decrees  become  binding  only  after 
they  have  been  published  or  posted  in  the  customary  form,  this  pub- 
lication can  be  established  by  any  means  of  proof ; 

Whereas,  in  the  present  case,  the  impugned  judgment  deduced  the 
proof  of  publication  from  the  existence  of  the  draft  of  a  poster  pro- 
duced by  the  office  of  the  public  prosecutor,  as  coming  from  the  ar- 
chives of  the  commune  of  Sens,  and,  on  the  other  hand,  from  the  cer- 
tificate of  the  Mayor  of  this  commune,  attesting  that  the  said  decree 
was  there  posted ; 

Whereas,  in  applying  thus  to  presumptions  which  it  has  considered 
precise  and  harmonious,  the  proof  of  the  disputed  publication,  the 
Court  has  only  made  legitimate  use  of  a  sovereign  power  of  evaluation, 
which  is  beyond  the  control  of  the  Court  of  Cassation. 

On  the  second  plea,  based  upon  the  violation  of  Articles  153,  154, 
155,  176  and  189,  of  the  Code  of  Criminal  Examination,  to  the  effect 
that  the  impugned  judgment  is  based  upon  information  which.it  did  not 
draw  from  the  examination  and  the  pleadings,  and  which  could  not  be 
discussed  in  the  presence  of  both  parties : 

Whereas,  the  plea  is  deficient  in  fact ;  whereas,  if  the  judgment  re- 
tained, for  the  purpose  of  establishing  the  publication  of  the  decree, 
certain  statements  which  would  have  been  the  subject  of  a  report 
drawn  up  by  the  police  commissioner  subsequent  to  the  judgment  of  the 
Police  Court,  these  statements  were  already  included  in  the  judgment 
of  this  Court  and  were  discussed  in  the  presence  of  both  parties. 

On  a  third  plea,  based  upon  the  violation  and  the  false  interpreta- 
tion of  the  principles  of  international  law,  to  the  effect  that  the  impugn- 
ed judgment  condemned  the  petitioner  for  having  flown  the  Pontifical 
flag  in  contravention  of  the  Prefectoral  Decree  of  February  17,  1894, 
while,  on  the  one  hand,  the  exception  provided  by  this  decree  evident- 
ly included  the  flags  of  international  persons,  Article  2  which  provided 
for  this  exception  being  not  a  penal  provision,  but  a  provision  deroga- 
tory to  a  penal  provision,  the  restrictive  interpretation  of  which  did  not 
appear  and  the  expression  "flags  of  foreign  national  colors"  having  on 
the  contrary  to  be  interpreted  with  the  breadth  recognized  to  it  by  in- 
ternational courtesy  and  demanded  by  the  good  relations  between  per- 
sons of  international  law ;  while,  on  the  other  hand,  the  flag  flown  by 
the  petitioner  is  the  Pontifical  flag;  while  the  Pope  continues  to  be  a 
moral  person  of  international  law  and  while  neither  the  rupture  of 
diplomatic  relations  which  occurred  on  July  29,  1904,  nor  the  Law  of 
Separation  of  December  19,  1905,  have  deprived  him  of  this  capacity 
with  regard  to  the   French  Republic: 

Whereas,  the  Decree  of  the  Prefect  of  Yonne  of  February  17,  1894, 
of  which  it  has  made  application,  interdicts  the  displaying  and  the  bear- 
ing of  flags  on  a  public  street;  whereas,  it  excepts  from  this  measure 


56  EIGHTS  AND  DUTIES  OF   NATIONS  IN   TlilE   OP  PEACE       (Part  1 

only  the  flags  of  French  or  foreign  national  colors  and  those  serving  as 
the  insignia  of  authorized  or  approved  societies ;  whereas,  this  precise 
provision  does  not  admit  of  any  interpretation ; 

Whereas,  the  Pontifical  flag  of  white  and  yellow  is  no  longer  a  flag 
of  foreign  national  colors ;  whereas,  in  fact  the  sovereignty  of  which 
it  was  formerly  the  symbol  has  ceased  to  exist  as  a  result  of  the  reun- 
ion of  the  Pontifical  States  with  the  Kingdom  of  Italy;  whereas,  on 
the  other  hand,  the  Pope  does  not  represent  a  society  in  the  sense  of  the 
aforementioned  decree:  whereas,  his  flag  can  not,  therefore,  be  con- 
sidered as  the  insignia  of  an  authorized  or  approved  society ; 

W^hereas,  under  these  circumstances,  since  the  contravention  is 
characterized,  it  is  not  incumbent  upon  the  Court  to  determine  whether 
the  Pope  continues  to  be  a  person  of  international  law  or  whether  he 
has  been  deprived  of  this  capacity,  either  by  the  rupture  of  diplomatic 
relations  or  by  the  Law  of  Separation  of  Churches  and  State.^* 

Wherefrom  it  follows  that  the  plea  could  not  be  supported: 

For  these  reasons. 

Rejects  the  appeal  from  the  judgment  of  the  Police  Court  of  Sens  of 
December  18,  1912; 

19  For  a  careful  statement  of  the  legal  status  of  the  Papacy,  see  Munici- 
pality of  Ponce  V.  Roman  Catholic  Apostolic  Church  in  Porto  Rico,  210  U. 
S.  296,  28  Sup.  Ct.  737,  52  L.  Ed.  1068  (190S).  Whether  the  Holy  See  is  or  is 
not  a  state  in  international  law,  the  Pope  is  still  recognized  as  a  sovereign 
by  many  of  the  powers  of  the  world,  which  receive  from  him  diplomatic 
representatives  in  the  person  of  either  a  nuncio  or  a  legate,  or  possibly  in  some 
other  capacity,  and  which  powers  also  accredit  to  him  certain  diplomatic 
representatives. 

"With  all  such  arrangements  this  government  abstains  from  interference 
or  criticism.  It  is  the  right  of  those  powers  to  determine  such  questions  for 
themselves ;  and  when  one  of  them,  at  whose  court  this  government  has  a 
-representative,  receives  a  representative  from  the  Pope,  of  higher  rank  than 
that  of  the  representative  of  the  United  States,  it  becomes  the  duty  of  the 
latter  to  observe  toward  the  Poi)e's  representative  the  same  courtesies  and 
formality  of  the  first  visit,  prescribed  by  the  conventional  rules  of  intercourse 
and  ceremonial,  and  of  the  precedence  of  diplomatic  agents,  which  have  been 
adopted,  and  almost  invariably  acted  upon,  for  the  last  sixty  years."  Mr. 
Fish,  Secretary  of  State,  to  Mr.  Cushing.  Minister  to  Spain,  June  4,  1875. 
Foreign  Relations  of  the  United  States,  1875,  pp.  1119,  1120  (John  Bassett 
Moore,  A  Digest  of  International  Law,  vol.  1,  p.  39  [1906] ) . 

It  appears  that  in  the  spring  of  1916,  after  Germany  had  extended  its 
submarine  operations  to  the  Mediterranean,  the  Pope  (Benedict  XV)  appoint- 
ed new  Apostolic  Nuncios  to  Belgium,  Colombia  and  the  Argentine  Republic. 
In  order  that  they  might  arrive  safely  at  their  respective  posts,  the  Holy  See 
opened  negotiations  with  Germany.  The  imperial  authorities  declared  it  to 
be  impossible  to  guarantee  security  to  the  diplomatic  agents  of  the  Vatican  if 
they  traveled  on  neutral  ships,  as  these  were  for  one  reason  or  other  exposed 
to  the  same  danger  as  enemy  vessels.  The  only  way  was,  in  their  opinion,  to 
display  the  papal  flag  from  the  ship  transporting  the  papal  diplomats,  and  on 
this  condition  the  German  government  engaged  to  respect  the  ship.  There- 
upon the  Pope  secured  the  consent  of  Spain,  the  most  Catholic  of  the  then 
neutral  coimtries,  to  convey  the  Nuncios  on  one  of  its  ships,  which  should  fly 
the  papal  flag.  In  June,  1916,  the  Holy  See  notified  the  powers  that  the  papal 
fiag,  white  and  yellow,  which  had  not  appeared  on  the  seas  since  1870,  would 
fly  from  the  masthead  of  the  steamship  Nuncius,  bound  from  Cadiz  to  Buenos 
Aires.    Revue  generale  de  droit  Internationale  public,  vol.  23  (1916)  606-608. 


Ch.  1)  STATES  57 

Condemns  the  plaintiff  to  the  fine  and  to  the  costs,  under  penalty  of 
imprisonment ; 

Fixes  at  the  minimum  the  extent  of  the  duration  of  imprisonment  in 
default  of  payment. 

Thus  judged  and  pronounced,  et  cetera.    Criminal  Chamber. 


SECTION  2.— RECOGNITION  OF  STATES  AND  OF  GOVERN- 
MENTS 


CITY  OF  BERNE  (in  Switzerland)  v.  BANK  OF  ENGLAND. 
(High  Court  of  Chancery,  1804.    9  Ves.  Jr.  347.) 

Mr.  Romilly,  for  the  Plaintiff,  on  behalf  of  himself  and  the  other 
members  of  the  Common  Council  Chamber  of  the  city  of  Berne  in 
Switzerland,  and  the  Burghers  and  Citizens  of  that  city,  moved,  that 
the  Governor  and  Company  of  the  Bank  of  England  and  the  South 
Sea  Company  may  be  restrained  from  permitting  a  transfer  of,  and  the 
trustees  from  transferring,  certain  funds,  standing  in  their  names  imder 
a  purchase  by  the  old  Government  of  Berne  before  the  Revolution. 

Mr.  Piggott  and  Mr.  Wooddenson,  for  the  Bank  of  England,  and  Mr. 
Mansfield  and  Mr.  Steele,  for  the  Trustees,  opposed  the  motion;  on  the 
ground,  that  the  existing  Government  of  Switzerland,  not  being  ac- 
knowledged by  the  Government  of  this  Country  could  not  be  noticed 
by  the  Court. 

The  Lord  Chancellor  [Lord  Eldon]  would  not  make  the  Order;     . 
observing,  that  he  was  much  struck  with  the  objection;  and  it  was     \ 
extremely  difficult  to  say,  a  judicial  Court  can  take  notice  of  a  Govern- 
ment^never  authorized  by  the  Government  of  the  Country,  in  which  that 
court  sits ;  and,  wh£thmL_the_ Foreign  Government  is  recognized,  or  ngt, 
is  matter  of  public  notoriety. 


JONES  v.  GARCIA  DEL  RIO. 

(High  Court  of  Chancery,  1823.     Turn.  &  R.  296.) 

This  was  a  bill  filed  by  three  persons,  on  behalf  of  themselves  and 
all  other  the  holders  of  scrip  or  shares  of  the  Peruvian  loan,~against 
John  Garcia  del  Rio  and  James  Paroissien,  who  were  stated  by  the  bill 
to  have  come  over  from  South  America  in  the  character  of  envoys  and 
ministers,  from  a  government  styling  itself  the  Peruvian  government, 
to  this  country,  and  to  have  represented  themselves  to  be  empowered 
to  contract  for  a  loan  for  the  use  of  the  said  government,  and  against 
Thomas  Kinder,  the  younger,  the  contracter  for  the  loan,  and  Wil- 
liam Everett  and  others,  the  bankers  to  whom  the  subscriptions  for 


58  RIGHTS   AND   DUTIES    OP   NATIONS   IN   TIME    OF   PEACE       (Part  1 

the  loan  were  paid.  The  bill  prayed,  that  an  account  might  be  taken 
of  the  monies  which  had  been  advanced  and  paid  by  the  plaintiffs  and 
the  other  holders  of  scrip  or  shares  of  the  loan  who  should  come  in 
and  claim  the  benefit  of  the  suit,  and  that  the  plaintiffs  and  such  other 
holders  as  aforesaid  might  be  declared  entitled  tohave  what  they  had 
so  paid  returned  to  them,  and  to  have  the  monies  paid  to  and  remaining 
in  the  hands  of  the  defendants  the  bankers  applied  for  that  purpose, 
and  that  an  account  of  such  monies  might  be  taken,  and  that  the  same 
might  be  applied  accordingly,  and  that  in  the  meantime  the  defendants 
the  bankers  might  be  restrained  from  parting  with  such  monies,  and  the 
other  defendants  from  receiving  or  disposing  of  the  same.     *     *     * 

The  defendant  Kinder  by  his  answer  admitted,  that  the  Peruvian 
government  had  not  been  acknowledged  as  an  independent  state  by 
the  government  of  Great  Britain ;  but  he  stated  that  there  was  in  fact 
such  a  government  in  South  America,  and  that  it  was  an  assumed 
government  in  opposition  to  the  former  government  of  Spain  in  that 
country,  and  had  been  formed  by  a  revolution  of  the  people  in  Peru, 
who  had  driven  out  the  Spanish  viceroy  and  established  a  govern- 
ment of  their  own;  and  he  therefore  denied  that  Peru  still  remained 
a  province  or  dependency  of  the  kingdom  of  Spain,  and  insisted  that 
it  was  independent  of  Spain.  The  defendant  further  stated,  that  he 
was  a  holder  of  scrip  on  his  own  private  account,  and  that  he  believed 
that  the  plaintiffs  were  not  authorized  by  any  of  the  other  holders 
of  scrip  to  institute  the  suit  on  their  behalf,  and  that  many  of  the  oth- 
er holders,  if  not  all  of  them,  were  content  to  abide  by  their  con- 
tracts to  purchase  such  shares  of  the  loan  as  they  had  respectively 
contracted  to  purchase,  and  were  either  ignorant  of  or  disapproved  the 
suit.     *     *     * 

The  Lord  Chancei^lor  [EivDOnJ.^"  We  all  know  that  Peru  was 
part  of  the  dominions  of  Spain,  and  that  Spain  and  this  country  are 
at  peace,  and  that  this  country  has  not  acknowledged  the  government 
of  Peru;  I  want  to  kno^,  whether,  supposing  Peru  to  be  so  far  ab- 
solved from  the  government  of  Spain  that  it  never  can  be  attached 
to  it  again,  the  King's  Courts  will  interfere  at  all  while  the  Peruvian 
government  is  not  acknowledged  by  the  government  of  this  country. 
What  right  have  I,  as  the  King's  Judge,  to  interfere  upon  the  subject 
of  a  contract  with  a  country  which  he  does  not  recognize?  Another 
question  is,  whether,  if  individuals  in  this  country  choose  to  advance 
their  money  for  the  purpose  of  assisting  a  colony  opposed  to  its  par- 
ent state,  that  parent  state  being  at  peace  with  this  country,  the  -Courts 
of  Justice  here  will  assist  them  to  recover  their  money,  and  will  not 
leave  them  to  get  it  as  they  can?  Practically  speaking  great  incon- 
venience may  result  from  these  transactions,  ,for  if  at  any  future  time 
the  government  of  this  country  shall  be  disposed  to  say,  Peru  shall 
still  continue  annexed  to  Spain,  these  creditors  will  immediately  come 

2  0  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Ch.  1)  STATES  59 

to  the  government  and  say,  do  not  accede  to  the  arrangement  unless 
Spain  will  pay  us  what  we  have  advanced  to  the  colony.  The  cases 
where  one  party  files  a  bill  on  behalf  of  himself  and  others  are  cases 
where  the  others  have  a  choice  between  that  and  nothing,  but  how  can 
it  be  managed  where  some  parties  are  not  dissatisfied,  and  are  disposed 
to  abide  by  the  contract  ?     *     *     * 


TAYLOR  V.  BARCLAY. 
(High  Court  of  Chancery,  1828.    2  Sim.  213.) 

Bill  for  a  discovery.  The  plaintiffs  purchased  certain  certificates  of 
obligations,  of  the  Government  of  the  Federal  Republic  of  Central 
America  from  Powles  &  Co.,  who  directed  him  to  p^y  over  the  install- 
ments to  a  banking  house  for  the  account  and  to  the  credit  of  the  de- 
fendants, who  publicly  announced  themselves  as  agents  of  said  Repub- 
lic of  Central  America.  Later  the  plaintiff  discovered  a  secret  part- 
nership existing  between  Powles  &  Co.  and  the  defendants.  It  was 
charged  that  the  purchasers  of  the  certificates  were  induced  to  take 
them  at  a  higher  price  than  if  they  had  known  the  real  nature  of  the 
relationship  existing  between  Powles  &  Co.  and  the  defendants.  To 
prevent  a  demurrer  to  the  bill  it  was  falsely  alleged  that  the  Govern- 
ment of  Central  America,  which  was  a  revolted  colony  of  Spain,  was  a 
sovereign  and  independent  state  recognized  and  treated  as  such  by 
Great  Britain. ^^ 

The  \^iCE  Chancellor  [Sir  L.  Shadwell].  Tn  consequence  of 
the  arguments  in  this  case  I  have  had  communication  with  the  Foreign 
Office,  and  I  am  authorized  to  state  that  the  Federal  Republic  of  Cen- 
tral America  has  not  been  recognized  as  an  independent  Government 
ByTEe  Go vernmeirr'of~tlTis  country.  It  appears  to  me  that,  when  it  is 
stated,  in  the  bill,  that  this  Republic  was,  and  still  is  a  sovereign  and 
independent  State,  recognized  and  treated  as  such  by  His  Majesty  the 
King  of  these  realms,  it  must  have  been  meant  that  it  has  been  recog- 
nized by  the  Government  of  this  country  as  an  independent  State  al- 
together ;  and,  inasmuch  as  I  conceive  it  is  the  duty  of  the  Judge  in 
every  Court  to  take  notice  of  public  matters  which  affect  the  Govern- 
ment of  tfie  country,  I  conceive  that,  notwithstanding  there  is  this 
-aiVel-ment  in  the  bill,  I  am  bound  to  take  the  fact  as  it  really  exists,  and 
not  as^it  is  averred  to  be ;  and  then  it  does  not  seem  to  me  that  tliere 
Isany  substantial  distinction  between  the  present  case  and  the  case  in 
which  I  formerly  gave  judgment,  that  is,  the  case  of  Thompson  v. 
Powles. 

I  observe  that,  in  this  case,  the  bill  is  filed  for  discovery  only ;  but 
it  does  not  appear  to  me  that  the  circumstance  that,  in  one  case,  dis- 
covery alone  is  sought,  at  all  tends  to  introduce  a  distinction  in  the 

21  The  statement  of  facts  is  rewritten. 


60  RIGHTS   AND   DUTIES   OF 'NATIONS   IN   TIME   OP  PEACE      (Parti 

judgment  that  has  been  given  in  a  case  where  the  bill  was  filed  for 
discovery  and  relief.  The  judgment  proceeded,  not  on  the  question 
whether  the  Court  should  give  relief  or  not,  or  give  a  discovery  or  not, 
or  give  discovery  and  withhold  relief ;  but  upon  the  question  whether 
the  King's  Court  should  attend  to  the  case  of  a  party  who  founded  his 
case  on  the  representation  that  certain  persons  did  form  an  independ- 
ent Government,  recognized  by  this  country,  when  the  Government  of 
this  country  did  not  so  recognize  them.  It  appears  to  me  that  sound 
policy  requires  that  the  Courts  of  the  King  should  act  in  unison  with 
the  Government  of  the  King.  Now  I  apprehend  that  what  Lord  Eldon 
proceeded  upon  was  a  general  doctrine  of  policy,  that  is,  that  he  would 
not  allow  a  person  to  sue,  at  least  as  a  plaintiff,  in  the  Court  of  Chan- 
cery, who  founded  his  case  upon  the  representation  that  there  was  that 
existing  as  an  independent  Government  acknowledged  by  this  country, 
which,  in  fact,  was  not  so.  It  is  impossible  for  me  to  suppose  that  any 
other  than  some  such  general  principle  as  that  influenced  him,  when  I 
observe  what  his  Lordship  did  in  the  case  of  Bire  v.  Thompson.  The 
case  was  mentioned  as  an  unreported  case,  but  I  have  got  the  vei^y 
brief,  which  I,  as  counsel,  held  on  an  application  to  Lord  Eldon  in 
that  case.  It  was  represented  by  the  plaintiffs  that,  in  August  1823, 
the  defendant  entered  into  an  agreement  with  the  Government  of  the 
Republic  of  Columbia  to  take  a  lease  of  certain  salt  mines ;  and  then 
certain  circumstances  are  stated  regarding  that  lease.  It  is  stated  that 
the  defendant  had  not  himself  funds  sufficient  to  complete  the  con- 
tract ;  but,  as  the  contract  with  these  parties  was  a  very  advantageous 
contract,  the  defendant  was  desirous  of  completing  the  same;  ani 
that,  about  the  month  of  April,  the  defendant  came  over  to  this  coun- 
try to  provide  funds  to  enable  him  to  complete  the  advances  to  the  Re- 
public of  Columbia,  and  entered  into  a  treaty,  with  certain  persons,  for 
the  purpose  of  raising  a  portion  of  the  money  for  completing  this  con- 
tract. It  was  then  represented  that  there  was  an  agreement  signed, 
which  had  been  prepared  and  approved  of  between  tlie  parties ;  and  it 
was  represented  that  the  plaintiff  was  willing  to  perform  the  agree- 
ment; and  it  was  asked,  by  the  bill,  that  the  defendant  might  be  re- 
strained, by  the  order  and  injunction  of  the  Court,  from  transferring 
or  assigning,  or  agreeing  to  transfer  or  assign,  the  part  of  the  contract 
so  entered  into  between  him  and  the  Republic  of  Columbia  for  that 
purpose;  and  this  statement  of  the  case  was  verified  by  affidavits. 
And,  on  this  case,  as  it  appears  to  me,  as  a  matter  of  course,  the  Court 
would  have  granted  the  injunction,  unless  there  had  been  this  objec- 
tion, founded  upon  the  representation  that  the  original  contract  was 
made  with  the  Government  of  the  Republic  of  Coltunbia.  L/Ord  Eldon 
thought  it  right  to  refuse  the  application ;  and  the  note  I  have  is  that 
the  Lord  Chancellor  refused  the  application  because  he  could  not  take 
notice  of  the  Republic  of  Columbia. 

Now,  in  this  case,  I  am  asked  to  compel  the  defendant  to  make  a 
discovery,  to  the  plaintiff,  of  certain  proceedings,  all  of  which  are  bot- 


Ch.  1)  STATES  61 

tomed  on  the  original  representation  that  certain  persons  were  the 
agents  of  the  Government  of  the  Federal  RepubHc  of  Central  America, 
which  then  was  and  is  an  independent  State,  the  fact  being  that  it  was 
not  then,  has  not  been,  nor  is  now,  an  independent  State  acknowledged 
by  the  Government  of  this  country.  It  appears  to  me  that,  without 
saying  how  far  the  plaintifif  might  have  had  the  discovery  which  he 
asks,  provided  he  had  represented  his  case  otherwise,  yet,  if  he  makes 
this  fact  the  foundation  of  his  case,  that  this  is  an  independent  Gov- 
ernment, recognized  by  the  Government  of  this  countrv-,  when  it  is  not 
so,  I  must  judicially  take  notice  of  what  is  the  truth  of  the  fact,  not- 
withstanding the  averment  on  the  record,  because  nothing  is  taken  to 
be  true  except  that  which  is  properly  pleaded;  and  I  am  of  opinion 
that,  when  you  plead  that  which  is  historically  false,  and  which  the 
judges  are  bound  to  take  notice  of  as  being  false,  it  cannot  be  said  you 
have  properly  pleaded,  merely  because  it  is  averred,  in  plain  terms ;  and 
that  I  must  take  it  just  as  if  there  was  no  such  averment  on  the  record. 
My  opinion  is,  without  making  any  new  law,  which  I  entirely  disclaim, 
but  merelv  meaning  to  follow  the  precedents  which  Lord  Eldon  laid 
down  as  bottomed  on  sound  policy,  that  I  must  allow  the  demurrer.^^ 


AKSIONAIRNOYE   OBSCHESTVO. 
A.  M.  LUTHER  v.  JAMES  SAGOR  &  CO. 

(Court  of  Appeal,  1921.    37  Times  Law  Rep.  777.) 

This  appeal  from  the  judgment  of  Mr.  Justice  Roche  {Z?  The  Times 
L.  R.  282;  [1921]  1  K.  B.  456)  raised  a  question  as  to  the  title  of  the 
plaintiffs  (the  respondents)  to  quantities  of  veneer  or  plywood  which 
had  been  sold  by  the  Russian  Government  to  the  defendants  (the  appel- 
lants) under  a  contract  made  with  the  defendants  in  August,  1920,  by 
M.  Krassin  on  behalf  of  the  Russian  Commercial  Delegation.  The 
determination  of  that  question  depended  on  the  questions  (1)  whether 

2  2  In  tbe  slightly  earlier  case  of  Thompson  v.  Powles  (High  Court  of 
Chancery)  2  Sim.  194,  212,  213  (1828),  Vice  Chancellor  Shadwell  said: 

"But  there  is  this  further  consideration :  that  this  is  represented  to  have 
been  a  contract,  by  the  plaintiff,  to  purchase  the  obligations  of  persons  who 
were  stated  to  be  the  Government  of  the  Federal  Republic  of  Central  America. 
I  confess  that,  after  all  I  have  heard  fall,  from  the  mouth  of  Lord  Eldon,  on 
the  subject  of  persons  representing  themselves  to  be  Governments  of  for- 
eign countries,  which  this  country  had  not  acknowledged  to  be  Governments. 
and  which  the  Courts  cannot  acknowledge  them  to  be,  till  the  Government  of 
the  country  has  recognized  them  to  be  so,  it  does  appear  to  me  that  this  is  a 
contract  entered  into  by  the  plaintiff  for  the  purpose  of  purchasing  that 
which,  by  the  law  of  the  land,  he  could  not  purchase.  I  think  that  the  con- 
tract, being  to  purchase  securities  from  these  persons,  who,  as  the  plaintiff 
says,  were  the  Government  of  Guatemala,  cannot  be  considered  as  being  a 
contract  which  this  Court  ought  to  sanction.  The  whole  case  being  founded 
on  that,  I  do  not  think  that  I  could  give  relief  to  the  party  who  builds  his  case 
for  relief  entirely  on  a  transaction  originating  in  such  a  manner ;  and  It 
appears  to  me  that,  on  that  ground,  I  must  allow  this  demurrer." 


62  KIGHTS  AND  DUTIES   OF  NATIONS   IN   TIME   OF  PEACE      (Part  1 

or  not  his  Majesty's  Government  had  at  all  material  times  recognized 
the  Russian  Federal  Soviet  Republic  as  the  de  facto  Government  of 
Russia,  and  (2)  whether  the  confiscation  of  the  timber  by  the  Russian 
Government  wsls  not  contrary  to  the  principles  of  justice  administered 
in  English  Courts.  The  plaintiff  company  was  incorporated  in  Russia 
in  1899,  and  it  opened  a  factory  and  mill  at  Staraya  Russa,  in  the  gov- 
ernment of  Novgorod,  to  manufacture  veneer  or  plywood.  This  wood 
was  marked  with  the  trade-mark  or  trade  name  "Venesta"  or  "V.  L.," 
which  was  the  property  in  England  of  Venesta,  Limited, '  a  company 
which  before  the  war  imported  into  this  country  large  quantities  of 
veneer  or  plywood  under  that  trade-mark  or  trade  name.  The  goods 
imported  were  manufactured  at  the  factory  or  mill  of  the  plaintiff  com- 
pany for  Venesta,  Limited. 

In  1919  the  plainti"ft'  company  had  at  Staraya  Russa,  a  large  stock 
of  boards,  marked  with  this  trade-mark,  amounting  to  about  1,500 
cubic  metres.  In  January  of  that  year  the  Russian  Government  Com- 
missaries took  possession  of  the  factory  at  Staraya  Russa,  and  took 
and  expropriated  the  stock  of  boards  without  making  any  payment  to 
the  plaintiff  company.  By  a  contract  made  on  August  14,  1920,  the  de- 
fendants in  this  country  agreed  to  buy  from  the  Russian  Government 
1,800  cubic  metres  of  these  boards,  and  they  obtained  possession  and 
imported  into  this  country  a  quantity  of  the  boards.  The  plaintiff 
company  claimed  against  the  defendants  a  declaration  of  the  plaintiff 
company's  title  to  the  goods  and  damages  for  their  conversion  and  de- 
tention. 

Mr.  Justice  Roche  found  on  the  facts  and  correspondence  before  him 
that  his  Majesty's  Government  had  not  recognized  the  Soviet  Govern- 
ment as  the  Government  of  a  Russian  Federative  Republic  or  of  any 
Sovereign  State  or  Power,  and  he  held,  therefore,  that  the  Court  could 
not  recognize  it  or  hold  that  it  had  sovereignty  or  was  able  by  decree  to 
deprive  the  plaintiff  company  of  its  property  in  Russia.  He  accordingly 
gave  judgment  for  the  plaintiff"  company. 
The  defendants  appealed,  *  *  * 
The  following  considered  judgments  were  delivered: 
Lord  Justice  Bankes,-^  The  action  was  brought  to  establish  the 
plaintiff  company's  right  to  a  quantity  of  veneer  or  plywood  which  had 
been  imported  by  the  defendants  from  Russia.  The  plaintiff's'  case  was 
that  they  are  a  Russian  company  having  a  factory  or  mill  at  Staraya 
Russa,  in  Russia,  for  the  manufacture  of  veneer  or  plywood,  that  in  the 
year  1919  the  so-called  Republican  Government  of  Russia,  without  any 
right  or  title  to  do  so,  seized  all  the  stock  as  their  mill  and  subsequently 
purported  to  sell  the  quantity  in  dispute  in  this  action  to  the  defendants. 
The  plaintiffs  contended  that  the  so-called  Republican  Government  had 
no  existence  as  a  Government,  that  it  had  never  been  recognized  by  his 

23  A  portion  of  the  judgment  of  Lord  Justice  Bankes  is  omitted,  as  are  the 
concurring  opinions  of  Lords  Justices  Warrington  and  Scrutton. 


Ch.  1)  STATES  63 

Majesty's  Government,  and  that  the  seizure  of  their  goods  was  pure 
robbery.  As  an  alternative  they  contended  that  the  decree  of  the  so- 
called  Government  nationalizing  all  factories,  as  a  result  of  which  their 
goods  were  seized,  is  not  a  decree  which  the  Courts  of  this  country 
would  recognize.  The  answer  of  the  defendants  was  twofold. '  In  the 
first  place,  they  contended  that  the  Republican  Government,  which  had 
passed  the  decree  nationalizing  all  factories,  was  the  de  facto  Govern- 
ment of  Russia  at  the  time,  and  had  been  recognized  by  his  Majesty's 
Government  as  such,  and  that  the  decree  was  one  to  which  the  Courts 
of  this  country  could  not  refuse  recognition.  Secondly,  they  contended 
that  the  plaintiff  company  was  an  Esthonian  and  not  a  Russian  com- 
pany, and  that  as  a  result  of  the  provisions  of  the  Treaty  of  Peace  be- 
tween Russia  and  Esthonia  the  plaintiffs'  complaint  must  be  dealt  with 
by  a  commission  set  up  in  pursuance  of  Article  14  of  that  Treaty.  Mr. 
Justice  Roche  decided  the  two  main  points  in  the  plaintiffs'  favour. 
Upon  the  evidence  which  was  before  the  learned  Judge  I  think  that  his 
decision  was  quite  right.  As  the  case  was  presented  in  the  Court  below 
the  appellants  relied  on  a  certain  letter  from  the  Foreign  Office  as  estab- 
lishing that' his  Majesty's  Government  had  recognized  the  Soviet  Gov- 
ernment as  the  de  facto  Government  of  Russia.  The  principal  letters 
are  referred  to  by  the  learned  Judge  in  his  judgment.  He  took  the 
view  that  the  letters  relied  on  did  not  establish  the  appellants'  conten- 
tion.   In  this  view  I  entirely  agree. 

In  this  Court  the  appellants  asked  leave  to  adduce  further  evidence, 
and  as  the  respondents  raised  no  objection,  the  evidence  was  given. 
It  consisted  of  two  letters  from  the  Foreign  Office  dated  respectively 
April  20  and  22,  1921.  The  first  is  in  reply  to  a  letter  dated  April  12, 
which  the  appellants'  solicitors  wrote  to  the  Under-Secretary  of  State 
for  Foreign  Affairs  asking  for  a  "certificate  to  the  Court  of  Appeal  that 
the  Government  of  the  Russian  Socialist  Federal  Soviet  Republic  is 
recognized  by  His  Majesty's  Government  as  the  de  facto  Government 
of  Russia."  To  this  request  a  reply  was  received  dated  April  20,  1921, 
in  these  terms :  "I  am  directed  by  Earl  Curzon  of  Kedleston  to  refer 
to  your  letter  of  April  12,  asking  for  information  as  to  the  relations  be- 
tween His  Majesty's  Government  and  the  Soviet  Government  of 
Russia.  I  am  to  inform  you  that  His  Majesty's  Government  recognize 
the  Soviet  Government  as  the  de  facto  Government  of  Russia."  The 
letter  of  April  22  is  in  reply  to  a  request  for  information  whether  His 
Majesty's  Government  recognized  the  Provisional  Government  of 
Russia,  and  as  to  the  period  of  its  duration,  and  the  extent  of  its 
jurisdiction.  The  answer  contains  (inter  alia),  the  statement  that  the 
Provisional  Government  came  into  power  on  March  14,  1917,  that  it 
was  recognized  by  his  Majesty's  Government  as  the  then  existing  Gov- 
ernment of  Russia,  and  that  the  Constituent  Assembly  remained  in 
Session  until  December  13,  1917,  when  it  was  dispersed  by  the  Soviet 
authorities.     The  statement  contained  in  the  letter  of  April  20  is  ac- 


64  RIGHTS   AND    DUTIES  OF   NATIONS   IN   TIME   OF   PEACE      (Part  1 

cepted  by  the  respondents'  counsel  as  the  proper  and  sufficient  proof 
of  the  recognition  of  the  Soviet  Government  as  the  de  facto  Government 
of  Russia. 

Under  these  circumstances  the  whole  aspect  of  the  case  is  changed, 
and  it  becomes  necessary  to  consider  the  matters  which  were  not  mate- 
rial in  the  Court  below.  The  first  is  a  question  of  law  of  very  considera- 
ble importance — namely,  what  is  the  effect  of  the  recognition  by  his 
Majesty's  Government  in  April,  1921,  of  the  Soviet  Government  as  the 
de  facto  Government  of  Russia  upon  the  past  acts  of  that  Government, 
and  how  far  back,  if  at  all,  does  that  recognition  extend.  The  second  is 
a  question  of  fact  as  to  whether  sufficient  evidence  was  given  to  estab- 
lish the  identity  of  the  Soviet  Government  now  recognized  by  his  Maj- 
esty's Government  with  the  Government  which  seized  and  confiscated 
and  sold  the  appellants'  goods. 

On  the  first  point  counsel  have  been  unable  to  refer  the  Court  to  any 
English  authority.  Attention  has  been  called  to  three  cases  decided  in 
the  Supreme  Court  of  the  United  States:  Williams  v.  Bru'ffy,  96  U. 
S.  176,  24  h.  Ed.  716;  Underbill  v.  Hernandez,  168  U.  S.  250,  18 
Sup.  Ct.  83,  42  L.  Ed.  456;  Oetjen  v.  Central  Leather  Co.',  246  U.  S. 
297,  38  Sup.  Ct.  309,  62  L.  Ed.  726.  In  none  of  these  cases  is  any  dis- 
tinction attempted  to  be  drawn  in  argument  between  the  effect  of  a 
recognition  of  a  Government  as  a  de  facto  Government  and  a  recogni- 
tion of  a  Government  as  a  Government  de  jure,  nor  is  any  decision  giv- 
en upon  that  point ;  nor,  except  incidentally,  is  any  mention  made  as  to 
the  effect  of  the  recognition  of  a  Government  upon  its  past  acts.  The 
mention  occurs  in  two  passages,  one  in  Mr.  Justice  Field's  judgment 
in  Williams  v.  Bruffy,  supra,  96  U.  S.  at  page  186,  24  E.  Ed.  716,  where, 
after  discussing  the  essential  differences  between  the  Government  of 
the  Confederate  States  and  the  two  kinds  of  de  facto  governments 
which  he  says  may  exist,  he  explains  that  the  second  of  the  two  kinds 
exist  where  a  portion  of  the  inhabitants  of  the  country  have  separated 
themselves  from  the  parent  State  and  established  an  independent  gov- 
ernment. The  validity  of  its  acts,  he  says,  both  against  the  parent  State 
and  its  citizens  or  subjects,  depends  entirely  upon  its  ultimate  success. 
If  it  fail  to  establish  itself  permanently,  all  such  acts  perish  with  it.  If 
it  succeed  and  become  recognized,  its  acts  from  the  commencement  of 
its  existence  are  upheld  as  those  of  an  independent  nation.  The  second 
mention  of  the  point  occurs  in  the  judgment  of  Chief  Justice  Fuller  in 
Underbill  v.  Hernandez,  supra,  168  U.  S.  at  page  253,  18  Sup.  Ct.  83, 
42  E.  Ed.  456.  He  says,  in  speaking  of  civil  wars :  ''If  the  party  seek- 
ing to  dislodge  the  existing  government  succeeds,  and  the  independence 
of  the  government  it  has  set  up  is  recognized,  then  the  acts  of  such 
government  from  the  commencement  of  its  existence  are  regarded  as 
those  of  an  independent  nation." 

These  are  weighty  expressions  of  opinion  on  a  question  of  Interna- 
tional Eaw.     Neither  learned  Judge  cites  any  authority  for  his  prop- 


Ch.  1)  STATES  65 

osition.  Each  appears  to  treat  the  matter  as  one  resting  on  principle. 
On  principle  the  views  p-ut  forward  by  these  learned  Judges  appear  to 
me  to  be  sound,  though  there  may  be  cases  in  which  the  Courts  of  a 
country  whose  government  has  recognized  the  government  of  some 
other  country  as  the  de  facto  government  of  that  country  may  have  to 
consider  at  what  stage  in  its  development  the  government  so  recognized 
can,  to  use  the  language  to  which  I  have  already  refejred  of  those  learn- 
ed Judges,  be  said  to  have  "commenced  its  existence."  No  difficulty 
of  that  kind  arises  in  the  present  case,  because  upon  the  construction 
which  I  place  upon  the  communication  of  the  Foreign  Office,  to  which  I 
have  referred,  this  Court  must,  I  consider,  treat  the  Soviet  Govern- 
ment, which  the  Government  of  this  country  has  now  recognized  as  the 
de  facto  Government  of  Russia,  as  having  commenced  its  existence  at 
a  date  anterior  to  any  date  material  to  the  dispute  between  the  parties 
to  this  appeal. 

An  attempt  was  made  by  the  respondents'  counsel  to  draw  a  distinc- 
tion between  the  effect  of  a  recognition  of  a  government  as  a  de  facto 
government  and  the  effect  of  a  recognition  of  a  government  as  a  gov- 
ernment de  jure,  and  to  say  that  the  latter  form  of  recognition  might 
relate  back  to  acts  of  State  of  a  date  earlier  than  the  date  of  recogni- 
♦tion,  whereas  the  former  could  not.  Wheaton  (5th  Ed.,  at  p.  36),  quot- 
ing from  Montague  Bernard,  states  the  distinction  between  a  de  jure 
and  a  de  facto  government  thus :  "A  de  jure  government  is  one  which, 
in  the  opinion  of  the  person  using  the  phrase,  ought  to  possess  the 
powers  of  sovereignty,  though  at  the  time  it  may  be  deprived  of  them. 
A  de  facto  government  is  one  which  is  really  in  possession  of  them, 
although  the  possession  may  be  wrongful  or  precarious."  For  some 
purposes  no  doubt  a  distinction  can  be  drawn  between  the  effect  of  the 
recognition  by  a  sovereign  State  of  the  one  form  of  government  or  of 
the  other,  but  far  the  present  purpose,  in'my  opinion,  no  distinction  can 
be  drawn.  The  government  of  this  country  having,  to  use  the  language 
just  quoted,  recognized  the  Soviet  Government  as  the  government  real- 
ly in  possession  of  the  powers  of  sovereignty  in  Ru-ssia,  the  acts  of  that 
government  must  be  treated  by  the  Courts  of  this  country  with  all  the 
respect  due  to  the  acts  of  a  duly  recognized  foreign  sovereign  State. 

It  becomes  material. now  to  consider  whether  the  respondents  have 
given  sufficient  evidence  to  establish  that  the  confiscation  and  subse- 
quent sale  of  the  respondents'  property  were  the  acts  of  the  govern- 
ment which  his  Majesty's  Government  have  now  recognized  as  the  de 
facto  government  of  Russia.  In  my  opinion  they  have.  The  decree  of 
confiscation  as  set  out  on  page  283  of  Mr.  Justice  Roche's  judgment  as 
reported  in  The  Times  Law  Reports,  purports  to  be  "A  decree  of 
Council  of  Commissars  for  the  People."  The  contract  of  sale  of  the 
goods  to  the  respondents,  dated  August  14,  1920,  purports  to  be  made 
by  L.  B.  Krassin  on  behalf  of  the  Russian  Commercial  Delegation.  The 
Scott  Int.LaW — 5 


66  RIGHTS   AND   DUTIES   OF    NATIONS   IN    TDIE    OF   PEACE       (Part  1 

trade  agreement  between  this  countr}'  and  Russia  of  !March  16,  1921, 
is  made  between  his  Majesty's  Government  and  the  government  of  the 
Russian  Socialist  Federal  Soviet  Republic,  thereinafter  referred  to  as 
the  Russian  Soviet  Government,  and  is  signed  by  M.  Krassin  as  the 
representative  of  that  government.  From  the  letter  from  the  Foreign 
Office  addressed  to  Messrs.  Linklaters  of  April  22,  1921,  it  appears  that 
the  Soviet  authorities  dispersed  the  then  Constituent  x\ssembly  on  De- 
cember 13,  1917,  from  which  date  I  think  it  must  be  accepted  that  the 
Soviet  Government  assumed  the  position  of  the  sovereign  government 
and  purported  to  act  as  such. 

The  witness  Rastorgoueft  explained  that  the  Council  of  Commissars 
for  the  People  is  the  executive  body  of  the  Soviet  Republic.  The  wit- 
ness Schotter  deposed  to  the  seizure  of  the  plaintiffs'  goods  at  the  fac- 
tor\"  being  made  by  persons  holding  official  documents  from  the  Soviet 
Government,  and  to  the  fact  that,  at  that  time  and  up  to  the  date  of  the 
trial,  the  power  (as  he  expressed  it)  was  in  the  hands  of  the  Bolshe- 
vists. The  witness  Muller,  who  described  himself  as  confidential  clerk 
to  the  Russian  Trade  Delegation  of  the  Russian  Socialist  Federal  Soviet 
Republic,  of  which  M.  Krassin  was  the  head,  deposed  to  the  fact  that, 
since  the  end  of  1917,  the  Russian  Socialist  Federal  Soviet  Republic  had 
in  fact  been  ruling  over  that  part  of  Russia  in  which  the  plainti'ffs'* 
factor}'  at  Staraya  Russa  is  situate.  Upon  these  materials  I  consider 
that  it  is  established  that  the  decree  of  confiscation  of  June  20,  1918, 
the  seizure  of  the  plaintiffs'  goods  in  Januar}-,  1919,  and  the  subse- 
quent sale  of  them  to  the  defendants  in  August,  1920,  were  all  acts  of 
the  Soviet  Government  which  has  now  been  recognized  by  his  MajestA^'s 
Government  as  the  de  facto  Government  of  Russia,  and  must  be  accept- 
ed by  the  Courts  of  this  country  as  such. 

It  is  necessar}'  now  to  deal  ivith  the  point  made  by  the  appellants  that 
the  decree  of  confiscation  of  June  20,  1918,  even  if  made  by  the  Govern- 
ment which  is  now  recognized  by  his  Majesty's  Government,  as  the 
de  facto  Government  of  Russia  is,  in  its  nature,  so  immoral  and  so 
contrary  to  the  principles  of  justice  as  recognized  by  this  country',  that 
the  Courts  of  this  coimtry  ought  not  to  pay  any  attention  to  it.  This 
is  a  bold  proposition.  The  question  before  the  Court  is  not  one  in  which 
the  assistance  of  the  Court  is  asked  to  enforce  the  law  of  some  foreign 
countrv-  to  which  legitimate  objection  might  be  taken,  as  in  Hope  v. 
Hope,  8  De  Gex,  Mac.  &  G.  731,  and  Kaufman  v.  Gerson,  20  The 
Times,  L.  R.  277;  [1904]  1  K.  B.  591.  The  question  before  the  Court 
is  as  to  the  title  to  goods  lying  in  a  foreign  cduntr}^  which  a  subject  of 
that  country,'  being  the  owner  of  them  by  the  law  of  that  country,  has 
sold  under  a  f .  o.  b.  contract  for  export  to  this  country.  The  Court  is 
asked  to  ignore  the  law  of  the  foreign  countr}*  under  which  the  ven- 
dor acquired  his  title,  and  to  lend  its  assistance  to  prevent  the  pur- 
chaser from  dealing  with  the  goods.    I  do  not  think  that  any  authority 

Scott  Ixt.Law 


Ch.  1)  STATES  67 

can  be  produced  to  support  the  contention.  Authority  appears  to  nega- 
tive it — see  per  ]\Ir.  Justice  Blackburn  in  Santos  v.  IlHdge,  8  C.  B.  N,  S. 
at  page  876,  where  he  says : 

"Assuming  the  taking  to  have  been  prohibited  by  a  British  Act,  still 
the  taking  having  been  of  property  locally  situated  in  a  foreign  countn,' 
in  a  manner  lawful  according  to  the  laws  of  that  country,  I  apprehend 
that  the  property  actually  passed  by  the  sale,  and  vested  in  the  purchas- 
ers, though  they  committed  a  felony  according  to  our  law  by  taking  it. 
It  would  be  otherwise  if  the  transfer  were  by  a  British  subject  of  per- 
sonal property  situated  within  the  British  dominions ;  for,  the  contract 
passing  the  property,  being  prohibited,  would  be  held  void,  and  so  the 
property  would  not  vest ;  and  it  would  be  questionable  how  the  case 
would  have  been,  if  it  had  been  shown  that  the  vendor  was  a  domiciled 
British  subject,  though  the  property  was  locally  situated  in  Brazil. 
But,  where,  as  we  must  take  it  to  be  here,  a  Brazilian  vendor,  in  Brazil, 
transferred  propert}^  locally  situated  in  Brazil,  I  apprehend  that,  though 
the  vendees  were  British  subjects,  the  validity  of  the  transfer  must 
on  every  principle  of  law  depend  upon  the  local  law  of  Brazil,  and  not 
upon  that  of  the  countrv  of  the  purchaser — see  Story  on  the  Conflict  of 
Laws,  c.  ix.  p.  308  (Ed.'l835)." 

The  respondents'  position  is  rendered  all  the  more  difficult  from  the 
fact  that  the  vendor  in  the  present  case  is  a  duly  recognized  sovereign 
State  whose  law  it  was  which  conferred  the  title  which  is  challenged. 
Even  if  it  was  open  to  the  Courts  of  this  country  to  consider  the  moral- 
ity or  justice  of  the  decree  of  June  20,  1918,  I  do  not  see  how  the  Courts 
could  treat  this  particular  decree  otherwise  than  as  the  expression  by 
the  de  facto  Government  of  a  civilized  country  of  a  policy  which  it  con- 
sidered to  be  in  the  best  interest  of  that  country.  It  must  be  quite  im- 
material for  present  purposes  that  the  same  views  are  not  entertained 
by  the  Government  of  this  country,  are  repudiated  by  the  vast  majority 
of  its  citizens,  and  are  not  recognized  by  our  laws.  Taking  the  view  I 
do  of  the  point,  I  do  not  consider  it  necessary  to  discuss  the  authorities 
to  which  our  attention  has  been  called.^*     *     *     * 

2*  If  a  foreign  governmeiit  has  recognized  the  existence  of  a  state  or  a  de 
facto  covernment  its  subjects  and  citizens  are  bound  by  such  act  of  recognition, 
Republic  of  Peru  v.  Dreyfus,  [18SS]  L.  R.  38  Ch.  D.  348;  and  if  the  de  facto 
government  thus  recognized  is  displaced  by  the  de  jure  government,  an  act  of 
the  latter  repealing  and  declaring  void  the  legislative  and  executive  acts  of 
its  de  facto  predecessor  will  not  be  binding  upon  the  foreign  state  which  had 
recognized  the  de  facto  government,  Republic  of  Peru  v.  Peruvian  Guano  Co., 
L1SS7]  L.  R.  36  Ch.  D.  489. 

For  an  interesting  discussion  of  the  nature  of  a  de  facto  government,  and 
the  process  by  which  a  de  facto  government  has  been  recognized  as  the 
government  of  a  state  with  which  foreign  nations  have  intercourse,  see  the 
award  of  the  Franco-Chilian  Tribunal  of  Arbitration  of  July  5,  1901,  in  the 
case  of  Drevfus  Fr^res  &  Cie,  Tribunal  Arbitral  Franco-Chilien,  Sentence  du 
5  juillet,  1901  (Lausanne,  1901),  pp.  288-298. 

See  the  award  of  the  Permanent  Court  of  Arbitration  at  The  Hague  of 
October  11,  1921,  in  the  French  Claims  against  Peru,  confirming  the  above 
cases. 


68  RIGHTS  AND  DUTIES   OF   NATIONS  IN   TIME   OF  PEACE      (Part  1 

THE  SAPPHIRE. 
(Supreme  Coni:t  of  the  United  States,  1870.    11  Wall.  164,  20  L.  Ed.  127.) 

This  was  an  appeal  from  the  Circuit  Court  of  the  United  States  for 
the  District  of  California. 

The  case  was  one  of  collision  between  the  American  ship  Sapphire 
and  the  French  transport  Euryale,  which  took  place  in  the  harbor  of 
San  Francisco  on  the  morning  of  December  22,  1867,  by  which  the 
Euryale  was  considerably  damaged.  A  hbel  was  filed  in  the  District 
Court  two  days  afterwards,  in  tlie  name  of  the  Emperor  Napoleon  IH, 
then  Emperor  of  the  French,  as  owner  of  the  Euryale,  against  the 
Sapphire.  The  claimants  filed  an  answer,  alleging,  among  other  things, 
that  the  damage  was  occasioned  by  the  fault  of  the  Euryale.  Deposi- 
tions were  taken,  and  the  court  decreed  in  favor  of  the  libelant,  and 
awarded  him  $15,0CX),  the  total  amount  claimed.  The  claimants  appeal- 
ed to  the  Circuit  Court,  which  affirmed  the  decree.  They  then,  in  July, 
1869,  appealed  to  this  court.  In  the  summer  of  1870,  Napoleon  III 
was  deposed.  The  case  came  on  to  be  argued  here  February  16,  1871. 
Three  questions  were  raised : 

1.  The  right  of  the  Emperor  of  France  to  have  brought  suit  in  our 
courts.  • 

2.  Whether,  if  rightly  brought,  the  suit  had  not  become  abated  by 
the  deposition  of  the  Emperor  Napoleon  III. 

3.  The  question  of  merits. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

The  first  question  raised  is  as  to  the  right  of  the  French  Emper- 
or to  sue  in  our  courts.  On  this  point  not  the  slightest  diffic^ulty  ex- 
ists. A  foreign  sovereign,  as  well  as  any  other  foreign  person, 
who  has  a  demand  of  a  civil  nature  against  any  person  here,  may 
prosecute  it  in  our  courts.  To  deny  him  this  privilege  would  mani- 
fest a  want  of  comity  and  friendly  feeling.  Such  a  suit  was  sus- 
tained in  behalf  of  the  king  of  Spain  in  the  third  circuit  by  Jus- 
tice Washington  and  Judge  Peters  in  1810.^^  The  Constitution  ex- 
pressly extends  the  judicial  power  to  controversies  between  a  State, 
or  citizens  thereof,  and  foreign  states,  citizens,  or  subjects,  without 
reference  to  the  subject-matter  of  the  controversy.  Our  own  Gov- 
ernment has  largely  availed  itself  of  the  like  privilege  to  bring  suits 
in  the  English  courts  in  cases  growing  out  of  our  late  civil  war. 
Twelve  or  more  of  such  suits  are  enumerated  in  the  brief  of  the  ap- 
pellees, brought  within  the  last  five  years  in  the  English  law,  chancery, 
and  admiralty  courts.  There  are  numerous  cases  in  the  English  re- 
ports in  which  suits  of  foreign  sovereigns  have  been  sustained,  though 
it  is  held  that  a  sovereign  cannot  be  forced  into  court  by  suit.^® 

25  King  of  Spain  v.  Oliver,  2  Wash.  C.  C.  431,  Fed.  Cas.  No.  7,814  (1810). 
26Hullet  &   Co.   v.   King   of   Spain.  1  Dow   &  Clark,  169  (1828);    s.   c.,  1 
Clark  &  Finnelly,  .3.33   (1S33) ;    s.  c,  2  Bligh,  N.   S.  31  (1828) ;    Emperor  of 


Ch.  1)  STATES  69 

The  next  question  is,  whether  the  suit  has  become  abated  by  the  re- 
cent deposition  of  the  Emperor  Napoleon.  We  think  it  has  not.  The 
reigning  sovereign  represents  the  national  sovereignty,  and  that  sov- 
ereignty is  continuous  and  perpetual,  residing  in  the  proper  successors 
of  the  sovereign  for  the  time  being.  Napoleon  was  the  owner  of  the 
Euryale,  not  as  an  individual,  but  as  sovereign  of  France.  This  is  sub- 
stantially averred  in  the  libel.  On  his  deposition  the  sovereignty^ 
does  not  change,  but  merely  the  person  or  persons  in  whom  it  resides. 
The  foreign  state  is.  the  true  and  real  owner  of  its  public  vessels  of 
war.  The  reigning  Emperor,  or  National  Assembly,  or  other  actual 
person  or  party  in  power,  is  but  the  agent  and  representative  of  the 
national  sovereignty.  A  change  in  such  representative  works  no 
change  in  the  national  sovereignty  or  its  rights.  The  next  successor 
recognized  by  our  Government  is  competent  to  carry  on  a  suit  already 
commenced  and  receive  the  fruits  of  it.  A  deed  to  or  treaty  with  a 
sovereign  as  such  inures  to  his  successor  in  the  government  of  the 
country.  If  a  substitution  of  names  is  necessary  or  proper  it  is  a  for- 
mal matter,  and  can  be  made  by  the  court  under  its  general  power 
to  preserve  due  symmetry  in  its  forms  of  proceeding.  No  allegation 
has  been  made  that  any  change  in  the  real  and  substantial  ownership 
of  the  Euryale  has  occurred  by  the  recent  devolution  of  the  sovereign 
power.  The  vessel  has  always  belonged  and  still  belongs  to  the  French 
nation. 

If  a  special  case  should  arise  in  which  it  could  be  shown  that  injus- 
tice to  the  other  party  would  ensue  from  a  continuance  of  the  proceed- 
ings after  the  death  or  deposition  of  a  sovereign,  the  court,  in  the 
exercise  of  its  discretionary  power,  would  take  such  order  as  the  exi- 
gency might  require  to  prevent  such  a  result. 

The  remaining  question  relates  to  the  merits  of  the  case.  And  on  the 
merits  of  the  case,  as  presented  by  the  record,  we  think  that  the  court 
below  erred  in  imposing  the  whole  damage  upon  the  Sapphire.  We 
think  that  the  Euryale  was  equally  in  fault,  and  that  the  damage  ought 
to  be  divided  between  them.     *     *     * 

We  cannot  avoid  the  conviction  that  there  was  a  want  of  proper  care 
and  vigilance  on  the  part  of  the  officers  of  the  Euryale,  and  that  this 
contributed  to  produce  the  collision  which  ensued.  Both  parties  being 
in  fault,  the  damages  ought  to  be  equally  divided  between  them. 

Decree  of  the  Circuit  Court  reversed,  and  the  cause  remitted  to  that 
court  with  directions  to  enter  a  decree  in  conformity  with  this  opinion. 

Brazil  v.  Eobinson,  6  Adolphus  &  Ellis,  801  (1888)  ;  Qneen  of  Portugal  v. 
Glyn,  7  Clark  &  Finnelly,  466  (1837.  1840)  ;  King  of  Spain  v.  Machado,  4 
Russ.  225  (1827)  ;  Emperor  of  Austria  v.  Day,  3  De  Gex,  Fisher  &  Joues,  217 
(ISGl) ;  King  of  Greece  v.  Wright,  6  Dowling's  Practice  Cases,  12  (1837);  .s.  c, 
1  Jurist,  944;  Prioleau  v.  U.  S.,  L.  R.  2  Equity  Cases,  659  (1866);  U.  S.  v. 
Wagner  L  R  2  Ch.  App.  582  (1867\  ;  Duke  of  Brunswick  v.  King  of  Hanover, 
6  Beavan,  1  (1844);  s.  c,  2  H.  L.  Cas.  1  (1848)  ;  De  Haber  v.  Queen  of 
Portugal,  17  Q.  B.  171  (1851)  ;  also  2  Phillimore's  International  Law,  part 
vi.  ch.  i ;   1  Daniell's  Chancery  Practice,  ch.  ii,  §  2. 


70  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TBIE   OF  PEACE      (Part  1 

OETJEN  V.  CENTRAL  LEATHER  CO. 

(Supreme  Court  of  the  United  States.  1918.    246  U.  S.  297,  38  Sup.  Ct.  309, 

62  L.  Ed.  726.) 

The  cases  are  stated  in  the  opinion.     *     *     * 

Mr.  Justice  Clarke  delivered  the  opinion  of  tlie  court. 

These  two  cases  involving  the  same  question,  were  argued  and  will  be 
decided  together.  They  are  suits  in  replevin  and  involve  the  title  to  two 
large  consignments  of  hides,  which  the  plaintiff  in  error  claims  to  own 
as  assignee  of  Martinez  &  Co.,  a  partnership  engaged  in  business  in  the 
city  of  Torreon,  Mexico,  but  which  the  defendant  in  error  claims  to 
own  by  purchase  from  the  Finnegan-Brown  Company,  a  Texas  corpo- 
ration, which  it  is  alleged  purchased  the  hides  in  Mexico  from  General 
Francisco  Villa,  on  January  3,  1914. 

The  cases  were  commenced  in  a  Circuit  Court  of  New  Jersey,  in 
which  judgments  were  rendered  for  the  defendants,  which  were  affirm- 
ed by  the  Court  of  Errors  and  Appeals  (87  N.  J.  Law,  552,  94  Atl. 
789,  L.R.  A.  1917A,  276;  87  N.  J.  Law,  704,  96  Atl.  1102),  and  they 
are  brought  to  this  court  on  the  theory  that  the  claim  of  title  to  the 
hides  by  the  defendant  in  error  is  invalid  because  based  upon  a  purchase 
from  General  Villa,  who,  it  is  urged,  confiscated  them  contrary  to  the 
provisions  of  the  Hague  Convention  of  1907  respecting  the  laws  and 
customs  of  war  on  land;  that  the  judgment  of  the  state  court  denied  to 
the  plaintiff  in  error  this  right  which  he  "set  up  and  claimed"  under  the 
Hague  Convention  or  treaty ;  and  that  this  denial  gives  him  the  right 
of  review  in  this  court. 

A  somewhat  detailed  description  will  be  necessary  of  the  political 
conditions  in  Mexico  prior  to  and  at  the  time  of  the  seizure  of  the 
property  in  controversy  by  the  military  authorities.  It  appears  in  the 
record,  and  is  a  matter  of  general  history,  that  on  February  23,' 1913, 
Madero,  President  of  the  Republic  of  Mexico,  was  assassinated ;  that 
immediately  thereafter  General  Huerta  declared  himself  Provisional 
President  of  the  Republic  and  took  the  oath  of  ofHce  as  such ;  that  on 
the  twenty-sixth  day  of  March  following  General  Carranza,  who  was 
then  Governor  of  the  State  of  Coahuila,  inaugerated  a  revolution  against 
the  claimed  authority  of  Huerta  and  in  a  "Manifesto  addressed  to  the 
Mexican  Nation"  proclaimed  the  organization  of  a  constitutional  gov- 
ernment under  "The  Plan  of  Guadalupe,"  and  that  civil  war  was  at  once 
entered  upon  between  the  followers  and  forces  of  the  two  leaders. 
When  General  Carranza  assumed  the  leadership  of  what  were  called  the 
Constitutionalist  forces  he  commissioned  General  Villa  his  representa- 
tive, as  "Commander  of  the  North,"  and  assigned  him  to  an  independ- 
ent command  in  that  part  of  the  country.  Such  progress  was  made  by 
the  Carranza  forces  that  in  the  auturnn  of  1913  they  were  in  military 
possession,  as  the  record  shows,  of  approximately  two-thirds  of  the 
area  of  the  entire  country,  with  the  exception  of  a  few  scattered  towns 


Ch,  1)  STATES  71 

^d  cities,  and  after  a  battle  lasting  several  days  the  City  of  Torreon 
in  the  State  of  Coahuila  was  captured  by  General  Villa  on  October  1  of 
that  year.  Immediately  after  the  capture  of  Torreon,  Villa  proposed 
levying  a  military  contribution  on  the  inhabitants,  for  the  support  of 
his  army,  and  thereupon  influential  citizens,  preferring  to  provide  the 
required  money  by  an  assessment  upon  the  community  to  having  their 
property  forcibly  seized,  called  together  a  largely  attended  meeting  and, 
after  negotiations  with  General  Villa  as  to  the  amount  to  be  paid,  an 
assessment  was  made  on  the  men  of  property  of  the  city,  which  was  in 
large  part,  promptly  paid.  Martinez,  the  owner  from  whom  the  plain- 
tiff in  error  claims  title  to  the  property  involved  in  this  case,  was  a 
wealthy  resident  of  Torreon  and  was  a  dealer  in  hides  in  a  large  way. 
Being  an  adherent  of  Hlierta,  when  Torreon  was  captured  Martinez 
fled  the  city  and  failed  to  pay  the  assessment  imposed  upon  him,  and  it 
was  to  satisfy  this  assessment  that,  by  order  of  General  Villa,  the  hides 
in  controversy  were  seized  and  on  January  3,  1914,  were  sold  in 
Mexico  to  the  Finnegan-Brown  Company.  They  were  paid  for  in 
Mexico,  and  were  thereafter  shipped  into  the  United  States  and  were 
replevied,  as  stated. 

This  court  will  take  judicial  notice  of  the  fact  that,  since  the  trans- 
actions thus  detailed  and  since  the  trial  of  this  case  in  the  lower  courts, 
the  Government  of  the  United  States  recognized  the  Government  of 
Carranza  as  the  de  facto  government  of  the  Republic  of  Mexico,  on 
October  19,  1915,  and  as  the  de  jure  government  on  August  31,  1917. 
Jones  V.  United  States,  137  U.  S.  202,  11  Sup.  Ct.  80,  34  L.  Ed.  691 ; 
Underbill  v.  Hernandez,  168  U.  S.  250,  18  Sup.  Ct.  83,  42  L.  Ed.  456. 

On  this  state  of  fact  the  plaintiff  in  error  argues  that  the  "Regub 
tions"  annexed  to  the  Hague  Convention  of  1907  "Respecting  the  Laws 
and  Customs  of  War  on  Land"  constitute  a  treaty  between  the  United 
States  and  Mexico ;  that  these  "Regulations"  forbid  such  seizure  and 
sale  of  property  as  we  are  considering  in  this  case ;  and  that,  therefore, 
somewhat  vaguely,  no  title  passed  by  the  sale  made  by  General  Villa 
and  the  property  may  be  recovered  by  the  Mexican  owner  or  his  as- 
signees when  found  in  this  country. 

It  would,  perhaps,  be  sufficient  answer  to  this  contention  to  say  that 
the  Hague  Conventions  are  international  in  character,  designed  and 
adapted  to  regulate  international  warfare,  and  that  they  do  not,  in  terms 
or  in  purpose,  apply  to  a  civil  war.  Were  it  otherwise,  however,  it 
might  be  effectively  argued  that  the  declaration  relied  upon  that  "pri- 
vate property  cannot  be  confiscated"  contained  in  Article  46  of  the 
Regulations  does  not  have  the  scope  claimed  for  it,  since  Article  49  pro- 
vides that  "money  contributions  *  *  *  fQj-  the  needs  of  the  army" 
may  be  levied  upon  occupied  territory,  and  Article  52  provides  that 
"requisitions  in  kind  and  services 'shall  not  be  demanded  *  *  * 
except  for  the  needs  of  the  army  of  occupation,"  and  that  contributions 
in  kind  shall,  as  far  as  possible,  be  paid  for  in  cash,  and  when  not  so 
paid  for  a  receipt  shall  be  given  and  payment  of  the  amount  due  shall 


72  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF  PEACE      (Parti 

be  made  as  soon  as  possible.  And  also  for  the  reason  that  the  "Con- 
vention" to  which  the  "Regulations"  are  annexed,  recognizing  the  in- 
complete character  of  the  results  arrived  at,  expressly  provides  that 
umil  a  more  complete  code  is  agreed  upon,  cases  not  provided  for  in 
the  "Regulations"  shall  be  governed  by  the  principles  of  the  law  of 
nations. 

But,  since  claims  similar  to  the  one  before  us  are  being  made  in  many 
cases  in  this  and  in  other  courts,  we  prefer  to  place  our  decision  upon 
the  application  of  three  clearly  settled  principles  of  law  to  the  facts  of 
this  case  as  we  have  stated  them. 

The  conduct  of  the  foreign  relations  of  our  Government  is  commit- 
ted by  the  Constitution  to  the  executive  and  legislative — "the  politi- 
cal"— Departments  of  the  Government,  and  the  propriety  of  what  may 
be  done  in  the  exercise  of  this  political  power  is  not  subject  to  judicial 
inquiry  or  decision.    United  States  v.  Palmer,  3  Wheat.  610,  4  L.  Ed. 
471 ;   Foster  v.  Neilson,  2  Pet.  253,  307,  309,  7  L.  Ed.  415 ;   Garcia  v. 
Lee,  12  Pet.  511,  517,  520,  9  L.  Ed.  1176;   Williams  v.  Suffolk  Ins. 
Co.,  13  Pet.  415,  420,  10  L.  Ed.  226;  In  re  Cooper,  143  U.  S.  472,  499, 
12  Sup.  Ct.  453,  36  L.  Ed.  232.    It  has  been  specifically  decided  that 
"who  is  the  sovereign,  de  jure  or  de  facto,  of  a  territory  is  not  a  judi- 
cial, but  is  a  political  question,  the  determination  of  which  by  the  leg- 
islative and  executive  departments  of  any  government  conclusively 
binds  the  judges,  as  well  as  all  other  officers,  citizens  and'  subjects  of 
that  government.    This  principle  has  always  been  upheld  by  this  court, 
and  has  been  affirmed  under  a  great  variety  of  circumstances."    Jones 
V.  United  States,  137  U.  S.  202,  212,  11  Sup.  Ct.  80,  34  L.  Ed.  691. 
\     It  is  also  the  result  of  the  interpretation  by  this  court  of  the  princi- 
Iples  of  international  law  that  when  a  government  which  originates  in 
/  revolution  or  revolt  is  recognized  by  the  political  department  of  our 
I   government  as  the  de  jure  government  of  the  country  in  which  it  is 
estabHshed,  such  recognition  is  retroactive  in  effect  and  validates  all  the 
actions  and  conduct  of  the  government  so  recognized  from  the  com- 
mencement of  its  existence.    Williams  v.  Bruffy,  96  U.  S.  176,  186,  24 
L:  Ed.  716;  Underbill  v.  Hernandez,  168  U.  S.  250,  253,  18  Sup.  Ct.  83, 
42  L.  Ed.  456.    See  s.  c,  65  Fed.  577,  13  C.  C.  A.  51,  38  L.  R.  A.  405. 
f        To  these  principles  we  must  add  that:     "Every  sovereign  State  is 
/    bound  to  respect  the  independence  of  every  other  sovereign  State,  and 
/     the  courts  of  one  country  will  not  sit  in  judgment  on  the  acts  of  the 
/      government  of  another  done  within  its  own  territory.     Redress  of 
)       grievances  by  reason  of  such  acts  must  be  obtained  through  the  means 
open  to  be  availed  of  by  sovereign  powers  as  between  themselves." 
Underbill  v.  Hernandez,  168  U.  S.  250,  253,  18  Sup.  Ct.  83,  42  L.  Ed. 
456;  American  Banana  Co.  v.  United  Fruit  Co.,  213  U.  S.  347,  29  Sup. 
Ct.  511,  53  L.  Ed.  826,  16  Ann.  Cas.  1047. 

Applying  these  principles  of  law  to  the  case  at  bar,  we  have  a  duly 
commissioned  military  commander  of  what  must  be  accepted  as  the  le- 
gitimate government  of  Mexico,  in  the  progress  of  a  revolution,  and 


Ch.  1)  STATES  73 

when  conducting  active  independent  operations,  seizing  and  selling  in 
Mexico,  as  a  military  contribution,  the  property  in  controversy,  at  the 
time  owned  and  in  the  possession  of  a  citizen  of  Mexico,  the  assignor 
of  the  plaintiff  in  error.  Plainly  this  was  the  action,  in  Mexico,  of  the 
legitimate  Mexican  government  when  dealing  with  a  Mexican  citizen, 
.  and,  as  we  have  seen,  for  the  soundest  reasons,  and  upon  repeated  deci- 
sions of  this  court  such  action  is  not  subject  to  re-examination  and  mod- 
ification by  the  courts  of  this  country. 

The  principle  that  the  conduct  of  one  independent  government  cannot 
be  successfully  questioned  in  the  courts  of  another  is  as  applicable  to 
a  case  involving  the  title  to  property  brought  within  the  custody  of  a 
court,  such  as  we  have  here,  as  it  was  held  to  be  to  the  cases  cited,  in 
which  claims  for  damages  were  based  upon  acts  done  in  a  foreign 
country,  for  it  rests  at  last  upon  the  highest  considerations  of  interna- 
tional comity  and  expediency.  To  permit  the  validity  of  the  acts  of  one 
sovereign  State  to  be  re-examined  and  perhaps  condemned  by  the  courts 
of  another  would  very  certainly  "imperil  the  amicable  relations  between 
governments  and  vex  the  peace  of  nations." 

It  is  not  necessary  to  consider,  as. the  New  Jersey  court  did,  the  va- 
lidity of  the  levy  of  the  contribution  made  by  the  Mexican  command- 
ing general,  under  rules  of  international  law  applicable  to  the  situation, 
since  the  subject  is  not  open  to  re-examination  by  this  or  any  other 
American  court. 

The  remedy  of  the  former  owner,  or  of  the  purchaser  from  him,  of 
the  property  in  controversy,  if  either  has  any  remedy,  must  be  found 
in  the  courts  of  Mexico  or  through  the  diplomatic  agencies  of  the  po- 
litical department  of  our  Government.  The  judgments  of  the  Court 
of  Errors  and  Appeals  of  New  Jersey  must  be  affirmed.^' 

2  7  Tn  T\MUiams  Y.._^nf^^1'-'  Tnsnr.an^fl.f^^'^  Pet.  415,  420,  10  L.  Ed.  226 
(1S39),  McLean,  Justice,  said  for  the  Supreme  Court : 

"And  can  there  be  any  doubt  that,  when  the  executive  branch  of  the  gov- 
ernment, which  is  charged  with  our  foreign  relations  shall,  in  its  corre- 
spondence with  a  foreign  nation,  assume  a  fact  in  regard  to  the  sovereignty  of 
any  island  or  country,  it  is  conclusive  on  the  judicial  department?  And  in 
this  view,  it  is  not  material  to  inquire,  nor  is  it  the  province  of  the  court  to 
determine,  whether  the  executive  be  right  or  wrong.  It  is  enough  to  know 
that,  in  the  exercise  of  his  constitutional  functions,  he  had  decided  the  ques- 
tion. Having  done  this,  under  the  responsibilities  which  belong  to  him,  it  is 
obligatory  on  the  people  and  government  of  the  Union.  If  this  were  not  the 
rule,  cases  might  often,  arise  in  which,  on  the  most  important  questions  of 
foreign  jurisdiction,  there  would  be  an  irreconcilable  difference  between  the 
executive  and  judicial  departments." 

For  a  very  recent  restatement  of  the  practice  in  recognition,  gp^  Ttnaginn 
Socialist  Federated  Republic  v.  Cibrario,  19S  App.  Div.  869,  191  N.  Y.  Supp. 
543r  dertTTe3T3eceraber  !«,' 11)21: — -  .._ 

In  Tari;ar_Chemical  Co.  v.  United^States  (C.  C.)  116  Fed.  726,  727  (1902), 
It  was  heldTaccOTtliBg  to' Lire  hyadlTCrfeTthat: 

"The  question  whether  Algeria  is  a  part  of  France  and  within  the  scope  of 
the  President's  proclamation  of  May  30,  1S98,  putting  in  force  a  reciprocal 
commercial  agreement  between  France  and  the  United  States,  as  authorized 
by  section  5  of  the  tariff  act  of  1897,  or  is  merely  a  colony,  and  not  affected 
by  such  agreement,  is  one  which  must  be  determined  solely  by  the  laws  of 
France,  and  when  the  French  minister  of  foreign  affairs  and  the  diplomatic 


74  EIGHTS  AND   DUTIES  OF   NATIONS   IN  TIME   OF   PEACE       (Part  1 

SECTION  3.— SUCCESSION  OF  STATES 
I.  Effect  on  Public  Rights 


WEST  RAND  CENTRAL  GOLD  MINING  CO.,  Limited,  v.  The 

KING. 

(King's  Bench  Division.  [1905]  2  K.  B.  391.) 
Lord  AlvErstone,  C.  J.^^  *  *  *  -^^  p^gg  j^q^  ^q  consider  the 
third  proposition  upon  which  the  success  of  the  suppHants  in  this  case 
must  depend — namely,  that  the  claims  of  the  suppliants  based  upon 
the  alleged  principle  that  the  conquering  State  is  bound  by  the  obliga- 
tions of  the  conquered  can  be  enforced  by  petition  of  right.  It  is  the 
consideration  of  this  part  of  the  case  which  brings  out  in  the  strongest 
relief  the  difficulties  which  exist  in  the  way  of  the  suppliants.  It  is 
not  denied  on  the  suppliants'  behalf  that  the  conquering  State  can  make 
whatever  bargain  it  pleases  with  the  vanquished ;  and  a  further  con- 
cession was  made  that  there  may  be  classes  of  obligations  that  it  could 
not  be  reasonably  contended  that  the  conquering  State  would,  by  an- 
nexation take  upon  itself,  as,  for  instance,  obligations  to  repay  money 

and  consular  representatives  of  that  country  in  the  United  States  unite  in 
stating  that  since  the  decree  of  October,  1870,  abolishing  the  colonial  govern- 
ment of  Algeria,  dividing  it  into  departments,  and  adding  them  to  the  depart- 
ments of  European  France,  it  has  been  an  integral  part  of  the  republic  of 
France,  their  statement  should  be  accepted  as  conclusive  by  a  court  of  this 
country  in  the  administration  of  its  customs  laws,  and  in  giving  effect  to  the 
agreement  between  the  two  nations,  entered  into  in  a  spirit  of  amity,  with 
desire  to  improve  their  commercial  relations." 

The  following  passage  shows  that  the  policy  of  our  government  in  the  mat- 
ter of  recognition  has  been  judicious  if  non-judicial: 

"There  is  a  stage  in  such  (revolutionary)  contests  when  the  party  struggling 
for  independence  has,  as  I  conceive,  a  right  to  demand  its  acknowledgment  by 
neutral  parties,  and  when  the  acknowledgment  may  be  granted  without  de- 
parture from  the  obligations  of  neutrality.  It  is  the  stage  when  the  indepen- 
dence is  established  as  matter  of  fact,  so  as  to  leave  the  chance  of  the  op- 
posite party  to  recover  their  dominion  utterly  desperate.  The  neutral  nation 
must,  of  course,  judge  for  itself  when  this  period  has  arrived;  and  as  the 
belligerent  nation  has  the  same  right  to  judge  for  itself,  it  is  very  likely  to 
judge  differently  from  the  neutral  and  to  make  it  a  cause  or  pretext  for  war, 
as  Great  Britain  did  expressly  against  France  in  our  Revolution,  and  sub- 
stantially against  Holland. 

"If  war  thus  results,  in  point  of  fact,  from  the  measure  of  recognizing  a 
contested  independence,  the  moral  right  or  wrong  of  the  war  depends  upon  the 
justice  and  sincerity  and  prudence  with  which  the  recognizing  nation  took 
the  step.  I  am  satisfied  that  the  cause  of  the  South  Americans,  so  far  as  it 
consists  in  the  assertion  of  independence  against  Spain,  is  just.  But  the 
justice  of  a  cause,  however  it  may  enlist  individual  feelings  in  its  favor,  is 
not  sufficient  to  justify  third  parties  in  siding  with  it.  The  fact  and  the  right 
combined  can  alone  authorize  a  neutral. to  acknowledge  a  new  and  disputed 
sovereignty."  J.  Q.  Adams  to  President  Monroe,  Aug.  24,  1818  (1  Wharton's 
Digest,  521). 

2  8  For  the  facts  of  the  case  and  the  decision  upon  another  point,  see  ante, 
P.  5. 


Ch.  1)  STATES  75 

used  for  the  purposes  of  the  war.  We  asked  more  than  once  during 
the  course  of  the  argument  by  what  rule,  either  of  law  or  equity,  which 
could  be  applied  in  municipal  Courts  could  those  Courts  decide  as  to 
the  obligations  which  ought  or  ought  not  to  be  discharged  by  the  con- 
quering State.  To  refer  again  to  the  instance  given  in  the  commence- 
ment of  this  judgment — the  obligation  incurred  by  the  conquered  State 
by  which  their  credit  has  been  ruined  may  have  been  contracted  for 
insufficient  consideration  or  under  circumstances  which  would  make 
it  perfectly  right  from  every  point  of  view  for  the  conquering  State  to 
repudiate  it  in  whole  or  in  part.  No  answer  was,  or  could  be,  given. 
Upon  this  part  of  the  case  there  is  a  series  of  authorities  from  the  year 
1793  down  to  the  present  time  holding  that  matters  which  fall  properly 
to  be  determined  by  the  Crown  by  treaty  or  as  an  act  of  State  are  not 
subject  to  the  jurisdiction  of  the  municipal  Courts,  and  that  rights 
supposed  to  be  acquired  thereunder  cannot  be  enforced  by  such  courts. 
It  is  quite  unnecessary  to  refer  in  detail  to  them  all.  They  extend  from 
Nabob  of  the  Carnatic  v.  East  India  Co.,  1  Ves.  Jr.  371,  2  Ves.  Jr.  56, 
down  to  Cook  v.  Sprigg,  [1899]  A.  C.  574.  As  a  great  deal  of  argu- 
ment was  addressed  to  us  upon  the  latter  case,  we  think  it  right  to  say 
that,  although  it  was  contended  that  the  actual  decision  was  not  in 
harmony  with  the  views  of  the  American  Courts  upon  analogous  mat- 
ters, no  authority  was  cited,  or,  as  far  as  we  know,  exists,  which 
throws  any  doubt  upon  that  part  of  the  judgment  which  is  in  the  fol- 
lowing words:  "The  taking  possession  by  Her  Majesty,  whether  by 
cession  or  by  any  other  means  by  which  sovereignty  can  be  acquired, 
was  an  act  of  State  and  treating  Sigcau  as  an  independent  Sovereign, 
which  the  appellants  are  compelled  to  do  in  deriving  title  from  him.  It 
is  a  well-established  principle  of  law  that  the  transactions  of  independ- 
ent States  between  each  other  are  governed  by  other  laws  than  those 
which  municipal  Courts  administer.  It  is  no  answer  to  say  that  by  the 
ordinary  principles  of  international  law  private  property  is  respected 
by  the  Sovereign  which  accepts  the  cession  and  assumes  the  duties  and 
legal  obligations  of  the  former  Sovereign  with  respect  to  such  private 
property  within  the  ceded  territory.  All  that  can  be  properly  meant  by 
"such  a  proposition  is  that,  according  to  the  well-understood  rules  of 
international  law,  a  change  of  Sovereignty  by  cession  ought  not  to 
affect  private  property,  but  no  municipal  tribunal  has  authority  to  en- 
force such  an  obligation."  We  do  not  repeat  the  citations  of  Secretary 
of  State  for  India  v.  Kamachee,  13  Moo.  P.  C.  22,  and  Doss  v.  Secre- 
tary of  State  for  India,  L.  R.  19  Eq.  509,  referred  to  in  the  judgment 
in  Cook  v.  Sprigg,  [1899]  A.  C.  574.  They  form  part  of  the  chain  of 
authorities  to  which  we  have  referred,  and  we  observe  in  passing  that 
we  are  not  to  be  considered  as  throwing  any  doubt  upon  the  correct- 
ness of  the  decision  itself  in  Cook  v.  Sprigg,  [1899]  A.  C.  574.  The 
case  of  Rustomjee  v.  Reg.,  1  Q.  B.  Div.  487,  2  Q.  B.  Div.  69,  affirmed 
in  the  Court  of  Appeal,  deserves,  however,  one  word  of  comment. 
There  the  British  Government  had  received  from  the  Cliinese  Govern- 


76  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TDIE   OF   PEACE      (Part  1 

ment  a  sum  of  money  in  respect  of  certain  claims  made  upon  that  Gov- 
ernment by  persons,  of  whojn  the  petitioner  was  one.  A  petition  of 
right  was  brought  in  order  to  enforce  payment  by  our  Government  of 
those  claims  out  of  the  sum  so  received  by  the  British  Government. 
From  some  points  of  view  that  case  may  be  considered  much  stronger 
in  favour  of  the  suppliant  than  the  present,  the  money  having  been  re- 
ceived by  the  Crown  under  a  treaty  specifically  on  account  of  the  debts 
due  to  British  subjects.  In  delivering  the  judgment  of  the  Court  of 
Appeal,  Lord  Coleridge  used  language  which  has  a  strong  bearing  on 
the  present  case.  He  said  2  Q.  B.  Div,  at  page  73:  "The  Queen  might 
or  not,  as  she  thought  fit,  have  made  peace  at  all ;  she  might  or  not,  as 
she  thought  fit,  have  insisted  on  this  money  being  paid  her.  She  acted 
throughout  the  making  of  the  treaty  and  in  relation  to  each  and  every 
of  its  stipulations  in  her  sovereign  character,  and  by  her  own  inherent 
authority;  and,  as  in  making  the  treaty,  so  in  performing  the  treaty, 
she  is  beyond  the  control  of  municipal  law,  and  her  acts  are  not  to  be 
examined  in  her  own  Courts."  It  was  contended  by  Lord  Robert  Cecil 
that  the  view  we  are  taking  was  inconsistent  with  certain  American 
decisions  and  with  certain  decisions  of  our  own  Court  of  Chancery,  to 
which  we  think  it  right  to  refer.  A  careful  examination  of  these  cases 
satisfies  us  that  rightly  understood  no  such  inconsistency  exists.  The 
American  cases  were  a  series  of  decisions  of  the  Supreme  Court  of  the 
United  States  respecting  the  rights  of  the  owners  to  landed  property 
in  territories  formerly  forming  part  of  independent  countries  which 
had  been  ceded  to  or  annexed  by  the  United  States.  The  particular 
cases  cited  were  United  States  v.  Percheman,  7  Pet.  51,  8  L.  Ed.  604, 
Mitchel  V.  United  States,  9  Pet.  711,  9  L.  Ed.  283,  Smith  v.  United 
States,  10  Pet.  326,  9  L.  Ed.  442,  and  Strother  v.  Lucas,  12  Pet.  410, 
9  L.  Ed.  1137.  These  cases  arose  respecting  the  rights  of  landed  prop- 
erty in  Florida,  Louisiana,  and  IMissouri.  They  were  all  cases  of  ces- 
sion, and  in  all  of  them  the  treaties  of  cession  and  subsequent  legisla- 
tion of  the  United  States  protected  the  rights  of  owners  of  private 
property  as  they  existed  at  the  time  of  cession,  and  the  sole  question 
was  whether,  under  the  circumstances  of  each  individual  case,  private 
rights  of  property  existed  and  could  be  enforced  as  against  the  United 
States.  No  question  of  duty  of  the  country,  to  whom  the  territory 
passed,  of  fulfilling  the  obligations  of  the  original  country  in  any  other 
respect  arose;  and  the  language  of  Marshall,  C.  J.,  7  Pet.  at  page  86,  8 
L.  Ed.  604,  and  of  Baldwin,  J.,  9  Pet.  at  page  733,  9  L.  Ed.  283,  10 
Pet.  at  page  329,  9  L.  Ed.  442,  all  of  which  is  to  the  same  effect,  must 
be  construed  solely  with  reference  to  the  rights  of  private  property  in 
individuals,  such  property  being  locally  situated  in  a  country  annexed 
by  another  country.  We  asjced  Lord  Robert  Cecil  and  Mr.  Hamilton 
whether  they  had  been  able  to  find  any  case  in  which  a  similar  princi- 
ple had  been  applied  to  personal  contracts  or  obligations  of  a  contrac- 
tual character  entered  into  between  a  ceding  or  conquered  State  and 
private  individuals.     They  informed  us  that  they  had  not  been  able  to 


Ch.  1)  STATES  77 

do  so,  nor  do  we  know  of  any  such  case.  It  must  not  be  forgotten  that 
the  obhgations  of  conquering  States  with  regard  to  private  property  of 
private  individuals,  particularly  land  as  to  which  the  title  had  already 
been  perfected  before  the  conquest  or  annexation,  are  altogether  differ- 
ent from  the  obligations  which  arrive  in  respect  of  personal  rights  by 
contract.  As  is  said  in  more  cases  than  one,  cession  of  territory  does 
not  mean  the  confiscation  of  the  property  of  individuals  in  that  terri- 
tory. If  a  particular  piece  of  property  has  been  conveyed  to  a  private 
owner  or  has  been  pledged,  or  a  lien  has  been  created  upon  it,  consid- 
erations arise  which  are  different  from  those  which  have  to  be  consid- 
ered when  the  question  is  whether  the  contractual  obligation  of  the 
conquered  State  towards  individuals  is  to  be  undertaken  by  the  con- 
quering State.  The  English  cases  on  which  reliance  was  placed  were 
United  States  v.  Prioleau,  2  H.  &  M.  559,  in  which  a  claim  was  made 
by  the  United  States  Government  to  cotton  which  had  been  the 
property  of  the  Confederated  States;  United  States  v.  Macrae,  L.  R. 
8  Eq.  69,  which  recognized  the  right  of  the  Government  suppressing 
rebellion  to  all  moneys,  goods,  and  treasures  which  were  public  prop- 
erty at  the  time  of  the  outbreak ;  Republic  of  Peru  v.  Peruvian  Guano 
Co.,  36  Ch.  Div.  489,  and  Republic  of  Peru  v.  Dreyfus,  38  Ch.  Div. 
348.  The  only  principle,  however,  which  can  be  deduced  from  these 
cases  is  that  a  Government  claiming  rights  of  property  and  rights 
under  a  contract  cannot  enforce  those  rights  in  our  Courts  without  ful- 
filling the  terms  of  the  contract  as  a  whole.  They  have,  in  our  judg- 
ment, no  bearing  upon  the  propositions  which  we  have  been  discussing. 
We  are  aware  that  we  have  not  commented  upon  all  the  cases  which 
were  cited  before  us — we  have  not  failed  to  consider  them;  and  any 
arguments  which  could  be  founded  upon  them  seem  to  us  to  be  covered 
by  the  observations  already  made.  We  are  of  opinion,  for  the  reasons 
given,  that  no  right  on  the  part  of  the  suppliants  is  disclosed  by  the 
petition  which  can  be  enforced  as  against  His  Majesty  in  this  or  in  any 
municipal  court ;  and  we  therefore  allow  the  demurrer,  with  costs. 
Judgment  for  the  Crown. 


TEXAS  BONDS. 
In  re  HOLFORD'S  EX'RS. 

(Anglo-American   Commission   of  Claims  under  Convention   of  February  8, 
lSr>3.    Report  of  Decisions,  3S2.) 

On  the  24th  of  October,  1838,  a  contract  was  entered  into  between 
James  Holford,  of  London,  now  deceased,  and  Messrs.  Williams  and 
Burnley,  commissioners  of  Texas,  who  were  authorized  to  negotiate 
a  loan,  under  the  provisions  of  an  act  of  the  Congress  of  Texas  of 
May  16,  1838.  By  this  contract  Holford  was  to  purchase  for  the  re- 
public of  Texas  a  steamer,  then  lying  at  Philadelphia,  and  provision  and 
deliver  her  at  Galveston,  in  Texas. 


78  RIGHTS    AND   DUTIES    OF   NATIONS   IN    TIME    OF   PEACE      (Part  1 

The  contract  was  complied  with,  and  was  afterwards  approved  by  an 
act  of  the  Congress  of  Texas  on  the  10th  of  January,  1839,  and  bonds 
were  issued  to  said  Holford  dated  July  1,  1839,  for  the  payment  of 
which  the  faith  and  revenues  of  the  republic  were  solemnly  pledged  by 
acts  of  Congress  of  November  18,  1836,  and  May  15,  1838.  Provision 
was  also  made,  by  act  of  January  22,  1839,  that  a  certain  portion  of  the 
sales  of  the  public  lands  should  be  annually  reserved,  as  a  permanent 
and  sinking  fund  for  the  payment  of  this  debt,  until  the  whole  loan 
should  be  paid  off. 

It  is  alleged  that  payment  has  not  been  made  of  either  principal  or 
interest  on  these  bonds. 

In  1845  Texas  was  admitted  into  the  Union  as  one  of  the  United 
States. 

By  the  Constitution  of  the  United  States  the  general  government  has 
power  "to  regulate  commerce,  and  to  lay  and  collect  taxes,  duties,  im- 
posts, and  excises,"  and  no  State  has  power,  "without  consent  of  Con- 
gress, to  lay  any  imposts,  or  duties  on  imports  or  exports,  or  enter  into 
any  treaty,  alliance,  or  confederation  with  any  other  State."  United 
States  Constitution,  art.  1,  §§  8  and  10. 

According  to  the  terms  agreed  upon  between  the  United  States  and 
the  republic  of  Texas,  whereby  that  republic  became  one  of  the  United 
States  of  America,  the  vacant  and  unappropriated  lands  within  its  limits 
were  to  be  retained  by  her,  and  "applied  to  the  payment  of  the  debts 
and  liabilities  of  the  republic  of  Texas;  and  the  residue  of  the  lands, 
after  discharging  the  debts  and  liabilities,  were  to  be  disposed  of  as  the 
State  might  direct,  but  in  no  event  were  said  debts  and  liabilities  to  be- 
come a  charge  upon  the  government  of  the  United  States."  United 
States  Statutes  at  Large,  vol.  5,  p.  798. 

Subsequently,  in  modifying  the  boundary  of  Texas,  the  United 
States,  in  1850,  on  condition  of  the  cession  by  Texas  of  certain  large 
tracts  of  lands  to  the  United  States,  agreed  to  pay  Texas  ten  millions 
of  dollars,  but  stipulated  that  "five  millions  of  the  same  should  remain 
unpaid  until  the  creditors  of  the  State  holding  bonds  and  other  certif- 
icates of  stock  of  Texas,  for  which  duties  on  imports  were  specially 
pledged,  should  first  file  at  the  Treasury  of  the  United  States  releases, 
of  all  claims  against  the  United  States  for  or  on  account  of  such  bonds 
or  certificates,  in  the  form  prescribed  by  the  Secretary  of  the  Treasury, 
and  approved  by  the  President  of  the  United  States."     *     *     * 

Up  to  1854,  when  a  claim  against  the  United  States  for  the  payment 
of  Holford's  bonds  was  presented  to  the  mixed  commission  organized 
under  the  convention  between  the  United  States  and  Great  Britain  of 
February  8,  1853,  difficulties  between  the  United  States  and  Texas  as 
to  the  manner  of  appropriating  the  sum  in  question  had  prevented  its 
payment  to  Texas,  and  new  measures  in  regard  to  it  were  then  pending 
before  Congress.     The  British  Government  had  never  treated  any  of 


Ch.  1)  STATES  79 

the  claims  of  the  holders  of  Texas  bonds  as  a  subject  of  interposition 
with  the  United  States.^^ 

Thomas,  agent  and  counsel  for  the  United  States,  filed  a  protest 
against  the  commissioners  assuming  jurisdiction  of  this  claim,  or  of 
any  other  arising  out  of  bonds  or  other  evidences  of  debt  issued  by  the 
republic  of  Texas  as  a  claim  against  the  United  States,  for  the  follow- 
ing reasons : 

I.  Because  it  is  in  no  proper  sense  a  claim  on  the  government  of  the 
United  States,  embraced  or  contemplated  by  the  convention  of  Feb- 
ruary 8,  1853,  for  the  settlement  of  outstanding  claims. 

II.  Because  the  second  of  the  resolutions  for  the  admission  of  the 
republic  of  Texas  into  the  Union  as  a  State,  among  other  things,  de- 
clares that  "in  no  event  are  the  debts  and  liabilities  of  Texas  to  become 
a  charge  upon  the  government  of  the  United  States." 

III.  Because  the  people  of  the  said  republic  of  Texas,  by  deputies 
in  convention  assembled,  with  the  consent  of  the  existing  government, 
and  by  their  authority,  did  ordain  and  declare  that  they  assented  to  and 
accepted  the  proposals,  conditions,  and  guaranties  contained  in  the 
resolutions  above  referred  to,  and  thereupon  she  was  admitted  into 
the  Union  as  a  State. 

IV.  Because  it  is  not  true,  as  is  asserted  in  the  statement  of  the  claim 
presented  to  the  commissioners,  that  Texas  is  incorporated  into  and 
subjected  to  the  dominion  of  the  United  States  government,  so  as  to 
destroy  her  responsibility  for  debts  contracted  while  an  independent 
republic,  or  her  ability  to  meet  them ;  but,  on  the  contrary,  she  is  for  the 
purpose  of  fulfilling  these  obligations  as  clearly  responsible  for  their 
payment  by  the  law  of  nations,  by  her  separate  and  distinct  organiza- 
tion, and  by  her  solemn  agreement  with  the  United  States,  as  she  ever 
was,  and  is  fully  able  to  discharge  them ;  and  this  commission  is  not  au- 
thorized to  interfere  to  shift  any  such  obligation  ^om  Texas  upon  the 
United  States. 

V.  Because  this  commission  has  nothing  to  do  with  any  law  or  act 
of  the  United  States  addressed  to  the  government  or  people  of  Texas, 
designed  or  tending  to  induce  that  State  to  perform  her  obligations  en- 
tered into  while  an  independent  republic;  and  hence,  to  take  jurisdic- 
tion of  this  claim  would  be  a  palpable  and  unwarrantable  violation  of 
the  spirit  and  intention  of  the  convention  establishing  this  commission, 
to  which  the  United  States  would  have  a  just  and  perfect  right  to  take 
exception,  as  much  so  as  if  this  commission  were  to  pass  laws  for 
the  government  of.  the  United  States,  or  do  any  other  thing  wholly 
without  the  limits  of  its  authority.     *     *     * 

Under  date  of  November  29,  1854,  Bates,  Umpire,  delivered  the 
following  award : 

2  0  The  above  paragraph  has  been  taken  from  John  Bassett  Moore's  History 
and  Digest  of  the  International  Arbitrations  to  which  the  United  States  hfts 
been  a  party,  vol.  IV,  1898,  p.  3592. 


80  RIGHTS  AND   DUTIES   OF   NATIONS  IN   TIME   OF  PEACE      (Part  1 

"The  umpire  appointed  agreeably  to  the  provisions  of  the  convention 
entered  into  between  Great  Britain  and  the  United  States  on  the  8th  of 
February,  1853,  for  the  adjustment  of  claims  by  a  mixed  commission, 
having  been  duly  notified  by  the  commissioners  under  the  said  conven- 
tion that  they  had  been  unable  to  agree  upon  the  decision  to  be  given 
with  reference  to  the  claims  of  the  heirs  of  James  Holford  against  the 
United  States  in  relation  to  Texan  bonds ;  and  having  carefully  exam- 
ined and  considered  the  papers  and  evidence  produced  on  the  hearing 
of  the  said  claim,  and  having  conferred  with  the  said  commissioners 
thereon,  hereby  reports  that  this  commission  can  not  entertain  the 
claim,  it  being  for  transactions  with  the  Independent  Republic  of  Texas 
prior  to  its  admission  as  a  State  of  the  United  States."  "" 

so  Tbe  above  paragraph  has  been  taken  from  John  Bassett  Moore's  History 
and  Digest  of  the  International  Arbitrations  to  which  the  United  States 
has  been  a  party,  vol.  IV,  1898,  p.  3594. 

In  his  edition  of  Wheaton's  Elements  of  International  Law  (1866),  Rich?ird 
Henry  Dana  criticizes  the  principal  case  and  expresses  the  opinion  that  by  the 
annexation  the  United  States  changed  the  nature  of  the  thing  pledged,  and 
was  bound  generally  to  do  equity  to  the  creditor,  since  by  taking  over  a  large 
control  of  the  material  resources  of  Texas  in  the  way  of  internal  revenues, 
excise  or  direct  taxation,  in  its  demands  on  the  services  of  the  people,  and 
in  the  debts  it  could  impose,  the  state  of  things  to  which  the  creditor  had 
looked  no  longer  existed. 

The  following  passage  states  briefly  the  general  doctrine  of  publicists : 

"It  is  well  to  be  imderstood,  at  a  period  when  alterations  in  the  constitu- 
tions of  governments,  and  revolutions  in  states,  are  familiar,  that  it  is  a 
clear  position  of  the  law  of  nations,  that  treaties  are  not  affected,  nor  posi- 
tive obligations  of  any  kind  with  other  powers,  or  with  creditors,  weakened, 
by  any  such  mutations.  A  state  neither  loses  any  of  its  rights,  nor  is  dis- 
charged from  any  of  its  duties,  by  a  change  in  the  form  of  its  civil  govern- 
ment. The  body  politic  is  still  the  same,  though  it  may  have  a  different  organ 
of  communication.  So,  if  a  state  should  be  divided  in  respect  to  territory,  its 
rights  and  obligations  are  not  impaired,  and  if  they  have  not  been  appor- 
tioned by  special  agreement,  those  rights  are  to  be  enjoyed,  and  those  obli- 
gations fulfilled,  by  all  the  parts  in  common."  1  Kent's  Com.  (1st  Ed.,  1826) 
p.   25. 

When  Lombardy  and  Venice  were  respectively  acquired  by  Italy  at  the 
close  of  the  wars  of  1859  and  186G  with  Austria,  the  Italian  government  as- 
sumed no  part  of  the  general  debt  of  Austria,  but  only  the  local  debts  of  the 
ceded  provinces.  So,  in  the  case  of  the  cession  of  Alsace  and  Lorraine  to 
Germany  in  1871,  no  part  of  the  French  national  debt  was  assumed  by  Ger- 
many on  their  account.     Bluntschli,  Droit  International,  Article  48. 

On  the  other  hand,  on  the  seizure  of  Schleswig-Holstein  by  Prussia,  in 
1866,  the  debt  of  Denmark  was  divided  between  that  country  and  Schleswig- 
Holstein  ;  "and  in  the  same  year,  Italy,  by  convention  with  France,  took 
upon  itself  so  much  of  the  Papal  debt  as  was  proportionate  to  the  revenues 
of  the  Papal  provinces  which  it  had  appropriated."  Hall's  Int.  Law  (3d  Ed. 
1890 )  102.  note ;  Freeman  Snow's  Cases  and  Opinions  on  International  Law 
(1893),  p.  20,  note. 

On  this  interesting  and  important  subject,  see  Arthur  Berriedale  Keith's 
Theory  of  State  Succession  with  Special  Reference  to  English  and  Colonial 
Law  (1907) ;  Henri  Appleton's  Des  effets  des  annexions  de  territoires  sur  les 
dettes  de  I'Etat  d^membr^  ou  annexe  (1895) ;  Guido  Fusinato's  Le  mutazioni 
territoriali,  il  loro  fondamento  giuridico  e  le  loro  conseguenze  (1885);  Arrigo 
Cavaglieri's  La  dottrina  della  successione  di  stato  a  stato  e  il  suo  valore 
giuridico  (1910) :  Max  Huber's  Die  staatensurcession.  Volkerrechtliche  unci 
staatsrechtliche  praxis  im  19.    Jahrhuudert  (1S9S). 


Ch.  1)  STATES  81 

COMMONWEALTH  OF  VIRGINIA  v.  STATE  OF  WEST  VIR- 
GINIA. 

(Supreme  Court  of  the  United  States,  1911.    220  U.  S.  1,  31  Sup.  Ct.  330,  55 

L.  Ed.  353.) 

The  Commonwealth  of  Virginia  brought  an  original  bill  in  this  court 
to  have  the  State  of  West  Virginia's  proportion  of  the  public  debt  of 
Virginia  as  it  stood  before  1861  ascertained  and  satisfied. 

Certain  of  the  western  counties  of  Virginia  were  loyal  to  the  Union 
during  the  Civil  War,  notwithstanding  the  secession  of  Virginia  in 
1861,  and  these  counties  under  the  name  of  West  Virginia  were  ad- 
mitted as  a  state  of  the  United  States  on  June  20,  1863,  by  proclama- 
tion of  President  Lincoln. 

At  the  constitutional  convention  of  West  Virginia  held  at  Wheeling 
in  1862,  there  was  an  ordinance  adopted  (Wheeling  Ordinance,  par.  9) 
that  "the  new  state  shall  take  upon  itself  a  just  proportion  of  the  public 
debt  of  the  Commonwealth  of  Virginia  prior  to  the  first  day  of  January, 
1861,  to  be  ascertained  by  charging  to  it  all  State  expenditures  within 
the  limits  thereof,  arid  a  just  proportion  of  the  ordinary  expenses  of 
the  State  government,  since  any  part  of  said  debt  was  contracted ;  and 
deducting  therefrom  the  moneys  paid  into  the  treasury  of  the  Common- 
wealth from  the  counties  included  within  the  said  new  State  during 
the  same  period." 

Mr.  Justice  H01.MES.  *  *  *  j^  ^as  held  in  1870  that  the  fore- 
going constituted  an  agreement  between  the  old  state  and  the  new, 
Virginia  v.  West  Virginia,  11  Wall.  39,  20  L.  Ed.  67,  and  so  much  may 
be  taken  practically  to  have  been  decided  again  upon  the  demurrer  in 
this  case,  although  the  demurrer  was  overruled  without  prejudice  to 
any  question.  Indeed,  so  much  is  almost  if  not  quite  admitted  in  the 
answer.  After  the  answer  had  been  filed  the  cause  was  referred  to  a 
master  by  decree  made  on  May  4,  1908,  209  U.  S.  514,  534,  28  Sup.  Ct. 
614,  52  L.  Ed.  914,  which  provided  for  the  ascertainment  of  the  facts 
made  the  basis  of  apportionment  by  the  original  Wheeling  ordinance, 
and  also  of  other  facts  that  would  furnish  an  alternative  method  if  that 
prescribed  in  the  Wheeling  ordinance  should  not  be  followed;  this 
again  without  prejudice  to  any  question  in  the  cause.  The  master  has 
reported,  the  case  has  been  heard  upon  the  merits,  and  now  is  submit- 
ted to  the  decision  of  the  court. 

The  case  is  to  be  considered  in  the  untechnical  spirit  proper  for  deal- 
ing with  a  quasi-international  controversy,  remembering  that  there  is  no 
municipal  code  governing  the  matter,  and  that  this  court  may  be  called 
on  to  adjust  differences  that  cannot  be  dealt  with  by  Congress  or  dis- 
posed of  by  the  legislature  of  either  State  alone.  Missouri  v.  Illinois, 
200  U.  S.  496,  519,  520,  26  Sup.  Ct.  268,  50  L.  Ed.  572;  Kansas  v. 
Colorado,  206  U.  S.  46,  82-84,  27  Sup.  Ct.  655,  51  L.  Ed.  956.  There- 
ScoTT  Txt.Law — 6 


82  RIGHTS  AND   DUTIES   OF    NATIONS   IN   TIME   OF  PEACE      (Part  1 

• 

fore  we  shall  spend  no  time  on  objections  as  to  multifariousness,  laches 
and  the  like,  except  so  far  as  they  afifect  the  merits,  with  which  we 
proceed  to  deal.  See  Rhode  Island  v.  Massachusetts,  14  Pet.  210,  257, 
10  L.  Ed.  423 ;  United  States  v.  Beebe,  127  U.  S.  338,  8  Sup.  Ct.  1083, 
32  L.  Ed.  121. 

The  amount  of  the  debt  January  1,  1861,  that  we  have  to  apportion 
no  longer  is  in  dispute.  The  master's  finding  was  accepted  by  West 
Virginia  and  at  the  argument  we  understood  Virginia  not  to  press  her 
exception  that  it  should  be  enlarged  by  a  disputed  item.  It  was  $33,- 
897,073.82,  the  sum  being  represented  mainly  by  interest-bearing  bonds. 
The  first  thing  to  be  decided  is  what  the  final  agreement  was  that  was 
made  between  the  two  States.  Here  again,  we  are  not  to  be  bound  by 
technical  form.  A  State  is  superior  to  the  forms  that  it  may  require 
of  its  citizens.  But  there  would  be  no  technical  difficulty  in  making  a 
contract  by  a  constitutive  ordinance  if  followed  by  the  creation  of  the 
contemplated  State.  Wedding  v.  Meyler,  192  U.  S.  573,  583,  24  Sup. 
Ct.  322,  48  L.  Ed.  570,  66  L.  R.  A.  833.  And,  on  the  other  hand, 
there  is  equally  little  difficulty  in  making  a  contract  by  the  constitution 
of  the  new  State,  if  it  be  apparent  that  the  instrument  is  not  addressed 
solely  to  those  who  are  to  be  subject  to  its  provisions,  but  is  intended 
to  be  understood  by  the  parent  State  and  by  Congress  as  embodying  a 
just  term  which  conditions  the  parent's  consent.  There  can  be  no  ques- 
tion that  such  was  the  case  with  West  Virginia.  As  has  been  shown, 
the  consent  of  the  Legislature  of  the  restored  State  was  a  consent  to 
the  admission  of  West  Virginia  under  the  provisions  set  forth  in  the 
constitution  for  the  would-be  State,  and  Congress  gave  its  sanction  only 
on  the  footing  of  the  same  constitution  and  the  consent  ot  Virginia  in 
the  last  mentioned  act.  These  three  documents  would  establish  a  con- 
tract without  more.  We  may  add,  with  reference  to  an  argument  to 
which  we  attach  little  weight,  that  they  establish  a  contract  of  West 
Virginia  with  Virginia.  There  is  no  reference  to  the  form  of  the  debt 
or  to  its  holders,  and  it  is  obvious  that  Virginia  had  an  interest  that  it 
was  most  important  that  she  should  be  able  to  protect.  Therefore  West 
Virginia  must  be  taken  to  have  promised  to  Virginia  to  pay  her  share, 
whoever  might  be  the  persons  to  whom  ultimately  the  payment  was  to 
be  made. 

We  are  of  opinion  that  the  contract  established  as  we  have  said  is 
not  modified  or  affected  in  any  practical  way  by  the  preliminary  sug- 
gestions of  the  Wheeling  ordinance.  Neither  the  ordinance  nor  the 
special  mode  of  ascertaining  a  just  proportion  of  the  debt  that  it  puts 
forward  is  mentioned  in  the  constitution  of  West  Virginia,  or  in  the  act 
of  Virginia  giving  her  consent,  or  in  the  Act  of  Congress  by  which 
West  Virginia  became  a  State.  The  ordinance  required  that  a  copy  of 
the  new  constitution  should  be  laid  before  Congress,  but  said  nothing 
about  the  ordinance  itself.    It  is  enough  to  refer  to  the  circumstances 

Scott  Int.Law 


Ch.  1)  STATES  83 

in  which  the  separation  took  place  to  show  that  Virginia  is  entitled  to 
the  benefit  of  any  doubt  so  far  as  the  construction  of  the  contract  is 
concerned.  See  opinion  of  Attorney-General  Bates  to  President  Lin- 
coln, 10  Op.  Atty.  Gen.  426.  The  mode  of  the  Wheeling  ordinance 
would  not  throw  on  West  Virginia  a  proportion  of  the  debt  that  would 
be  just,  as  the  ordinance  requires,  or  equitable,  according  to  the  promise 
of  the  constitution,  unless  upon  the  assumption  that  interest  on  the 
public  debt  should  be  considered  as  part  of  the  ordinary  expenses  re- 
ferred to  in  its  terms.  That  we  believe  would  put  upon  West  Virginia 
a  larger  obligation  than  the  mode  that  we  adopt,  but  we  are  of  opin- 
ion that  her  share  should  be  ascertained  in  a  different  way.  All  the 
modes,  however,  consistent  with  the  plain  contract  of  West  Virginia, 
whether  under  the  Wheeling  ordinance  or  the  constitution  of  that  State, 
come  out  with  surprisingly  similar  results. 

It  was  argued,  to  be  sure,  that  the  debt  of  Virginia  was  incurred  for 
local  improvements  and  that  in  such  a  case,  even  apart  from  the  ordi- 
nance, it  should  be  divided  according  to  the  territory  in  which  the 
money  was  expended.  We  see  no  sufficient  reason  for  the  application 
of  such  a  principle  to  this  case.  In  form  the  aid  was  an  investment.  It 
generally  took  the  shape  of  a  subscription  for  stock  in  a  corporation. 
To  make  the  investment  a  safe  one  the  precaution  was  taken  to  require 
as  a  condition  precedent  that  two-  or  three-fifths  of  the  stock  should 
have  been  subscribed  for  by  solvent  persons  fully  able  to  pay,  and  that 
one-fourth  of  the  subscriptions  should  have  been  paid  up  into  the  hands 
of  the  treasurer.  From  this  point  of  view  the  venture  was  on  behalf  of 
the  whole  State.  The  parties  interested  in  the  investment  were  the 
same,  wherever  the  sphere  of  corporate  action  might  be.  The  whole 
State  would  have  got  the  gain  and  the  whole  State  must  bear  the  loss, 
as  it  does  riot  appear  that  there  are  any  stocks  of  value  on  hand.  If 
we  should  attempt  to  look  farther,  many  of  the  corporations  concerned 
were  engaged  in  improvements  that  had  West  Virginia  for  their  ob- 
jective point,  and  we  should  be  lost  in  futile  detail  if  we  should  try  to 
unravel  in  each  instance  the  ultimate  scope  of  the  scheme.  It  would  be 
unjust,  however,  to  stop  with  the  place  where  the  first  steps  were  taken 
and  not  to  consider  the  purpose  with  which  the  enterprise  was  begun. 
All  the  expenditures  had  the  ultimate  good  of  the  whole  State  in  view. 
Therefore  we  adhere  to  our  conclusion  that  West  Virginia's  share  of 
the  debt  must  be  ascertained  in  a  different  way.  In  coming  to  it  we  do 
but  apply  against  West  Virginia  the  argument  pressed  on  her  behalf 
to  exclude  her  liability  under  the  Wheeling  ordinance  in  like  cases.  By 
the  ordinance  West  Virginia  was  to  be  charged  with  all  the  State  ex- 
penditures within  the  limits  thereof.  But  she  vigorously  protested 
against  being  charged  with  any  sum  expended  in  the  form  of  a  purchase 
of  stocks.     *     *     * 

The  liability  of  West  Virginia  is  a  deep-seated  equity,  not  discharg- 
ed by  changes  in  the  form  of  the  debt,  nor  split  up  by  the  unilateral  at- 


S4  RIGHTS   AND   DUTIES   OF   NATIONS  DT   TIME   OP  PEACE      (Part  1 

tempt  of  Virginia  to  apportion  specific  parts  to  the  two  State's.  If 
one-third  of  the  debt  were  discharged  in  fact,  to  all  intents,  we  perceive 
no  reason,  in  what  has  happened,  why  West  \*irginia  should  not  con- 
tribute her  proportion  of  the  remaining  two-thirds.  But  we  are  of 
opinion  that  no  part  of  the  debt  is  extinguished,  and  further,  that  noth- 
ing has  happened  to  bring  the  rule  of  New  Hampshire  v.  Louisiana 
into  play.  For  even  if  Mrginia  is  not  liable  she  has  tlie  contract  of 
^^'est  \*irginia  to  bear  an  equitable  share  of  the  whole  debt,  a  contract 
in  the  performance  of  which  the  honor  and  credit  of  Virginia  is  con- 
cerned, and  which  she  does  not  lose  her  right  to  insist  upon  by  her 
creditors  accepting  from  necessity  the  performance  of  her  estimated 
duty  as  confining  their  claims  for  the  residue  to  the 'party  equitably 
bound.  Her  creditors  never  could  have  sued  her  if  the  supposed  dis- 
charge had  not  been  granted,  and  the  discharge  does  not  diminish  her 
interest  and  right  to  have  the  whole  debt  paid  by  the  help  of  the  de- 
fendant. The  suit  is  in  \'irginia's  own  interest,  none  the  less  that  she 
is  to  turn  over  the  proceeds.  See  United  States  v.  Beebe,  127  U.  S. 
338,  342,  8  Sup.  Ct.  1083,  32  L.  Ed.  121 1  United  States  v.  Nashville, 
Chattanooga  &  St.  Louis  Ry.  Co.,  118  U.  S.  120,  125,  126,  6  Sup.  Ct. 
1006,  30  L.  Ed.  81.  Moreover,  even  in  private  litigation  it  has  been 
held  that  a  trustee  may  recover  to  the  extent  of  the  interest  of  his 
cestui  que  trust.  Lloyd's  v.  Harper,  16  Ch.  D.  290,  309,  315 ;  Lamb  v. 
Vice,  6  M.  &  \V.  467.  472.  ^^'e  may  add  that  in  all  its  aspects  it  is  a 
suit  on  the  contract,  and  it  is  most  proper  that  the  whole  matter  should 
be  disposed  of  at  once. 

It  remains  true  then,  notwithstanding  all  the  transactions  between 
the  old  Commonwealth  and  her  bondholders,  that  West  Virginia  must 
bear  her  equitable  proportion  of  the  whole  debt.  With  a  qualification 
which  we  shall  mention  in  a  moment,  we  are  of  opinion  that  the  near- 
est approach  to  justice  that  we  can  make  is  to  adopt  a  ratio  determined 
by  the  master's  estimated  valuation  of  the  real  and  personal  property 
of  the  two  States  on  the  date  of  the  separation,  June  20,  1863.  A  ratio 
determined  by  population  or  land  area  would  throw  a  larger  share  on 
West  Virginia,  but  the  relative  resources  of  the  debtor  populations  are 
generally  recognized,  we  think,  as  affording  a  proper  measure. 

It  seems  to  us  plain  that  slaves  should  be  excluded  from  the  valua- 
tion. The  master's  figures  without  them  are,  for  Virginia  8300,887,- 
367.74.  and  for  W^est  Virginia  892,416,021.65.  These  figures  are  criti- 
cised by  Virginia,  but  we  see  no  sufficient  reason  for  going  behind 
them,  or  ground  for  thinking  that  we  can  get  nearer  to  justice  in  any 
other  way.  It  seems  to  us  that  Virginia  can  not  complain  of  the  re- 
sult. They  would  give  the  proportion  in  which  the  833,897.073.82  was 
to  be  divided,  but  for  a  correction  which  Virginia  has  made  necessary. 
Mrginia  with  the  consent  of  her  creditors  has  cut  down  her  liabilit}"  to 
not  more  than  two-thirds  of  the  debt,  whereas  at  the  ratio  shown  by 
the  figures  per  share,  subject  to  mathematical  correction,  is  about 
.7651.     If  our  figures  are  correct,  the  difference  between  Virginia's 


Ch.  1)  STATES  85 

share,  say  $25,931,261.47,  and  the  amount  that  the  creditors  were  con- 
tent to  accept  from  her,  say  $22,598,049.21,  is  $3,333,212.26;  sub- 
tracting the  last  sum  from  the  debt  leaves  $30,563,861.56  as  the  sum 
to  be  apportioned.  Taking  .235  as  representing  the  proportion  of  West 
Virginia  we  have  $7,182,507.46  as  her  share  of  the  principal  debt. 

We  have  given  our  decision  with  respect  to  the  basis  of  liabiHty  and 
the  share  of  the  principal  of  the  debt  of  Virginia  that  West  Virginia 
assumed.  In  any  event,  before  we  could  put  our  judgment  in  the  form 
of  a  final  decree  there  would  be  figures  to  be  agreed  upon  or  to  be  as- 
certained by  reference  to  a  master.  Among  other  things  there  still 
remains  the  question  of  interest.  V/hether  any  interest  is  due.  and  if 
due  from  what  time  it  should  be  allowed  and  at  what  rate  it  should  be 
computed,  are  matters  as  to  which  there  is  a  serious  controversy  in  the 
record,  and  concerning  which  there  is  room  for  a  wide  divergence  of 
opinion.  There  are  many  elements  to  be  taken  into  account  on  the  one 
side  and  on  the  other.  The  circumstances  of  the  asserted  default  and 
the  conditions  surrounding  the  failure  earlier  to  procure  a  determina- 
tion of  the  principal  .sum  payable,  including  the  question  of  laches  as 
to  either  party,  would  require  to  be  considered.  A  long  time  has  elaps- 
ed. Wherever  the  responsibility  for  the  delay  might  ultimately  be 
placed,  or  however  it  might  be  shared,  it  would  be  a  severe  result  to 
capitalize  charges  for  half  a  century — such  a  thing  hardly  could  hap- 
pen in  a  private  case  analogous  to  this.  Statutes  of  limitation,  if  noth- 
ing else,  would  be  likely  to  interpose  a  bar.  As  this  is  no  ordinary 
commercial  suit,  but,  as  we  have  said,  a  quasi-international  difterence 
referred  to  this  court  in  reliance  upon  the  honor  and  constitutional 
obligations  of  the  States  concerned  rather  than  upon  ordinary  reme- 
dies, we  think  it  best  at  this  stage  to  go  no  farther,  but  to  await  the 
effect  of  a  conference  between  the  parties,  which,  whatever  the  out- 
come, must  take  place.  If  the  cause  should  be  pressed  contentiously 
to  the  end,  it  would  be  referred  to  a  master  to  go  over  the  figures  that 
we  have  given  provisionally,  and  to  make  such  calculations  as  might 
become  necessary.  But  this  case  is  one  that  calls  for  forbearance  upon 
both  sides.  Great  States  have  a  temper  superior  to  that  of  private  liti- 
gants, and  it  is  to  be' hoped  that  enough  has  been  decided  for  patriot- 
ism, the  fraternity  of  the  Union,  and  mutual  consideration  to  bring  it 
to  an  end.^^ 

31  The  case  of  Virginia  v.  West  "Virginia  hag  been  many  times  before  the 
Supreme  Court  of  the  United  States,  but  the  final  adjustment  between  the 
two  States  was  reached  in  1915,  Mr.  Justice  Hughes  delivering  the  opinion 
of  the  Court.  Commonwealth  of  Virginia  v.  State  of  West  Virginia,  238  U. 
S.  202,  35  Sup.  Ct.  795,  59  L.  Ed.  1272   (1915). 

The  state  of  West  Virginia  complied  with  the  judgment  of  1915  and  on 
March  1,  1920.  a  decree  of  satisfaction  of  the  judgment  was  entered  in  the 
Supreme  Court  of  the  United  States. 

For  the  most  recent  practice  of  nations  in  the  assumption  of  debts  of  terri- 
tory annexed,  or  which  has  become  independent,  see  the  Treaty  of  Versailles, 
of  June  28,  1919,  articles  39,  55,  86,  92.  108,  144,  25^257,  13  American  Journal 
of    International    Law    Supplement    (1919)    151-386,   the  Treaty   of   St.   Ger- 


86  BIGHTS  AND   DUTIES  OP  NATIONS  IN  TIME   OF   PEACE       (Part  1 

VILAS  V.  CITY  OF  MANILA. 
TRIGAS  V.  SAME. 

AGUADO  V.  SAME. 

(Supreme  Court  of  the  United  States,  1911.    220  U.  S.  345,  31  Sup.  Ct.  416,  55 

L.  Ed.  491.) 

The  facts,  which  involve  the  Habihty  of  the  present  city  of  Manila 
in  the  Philippine  Islands  for  claims  against  the  city  of  Manila  as  it  ex- 
isted prior  to  the  cession  under  the  treaty  of  1898,  are  stated  in  the 
opinion. 

]\Ir.  Justice  Lurton  delivered  the  opinion  of  the  court. ^^ 

The  plaintiffs  in  error,  who  were  plaintiffs  below,  are  creditors  of 
the  city  of  Manila  as  it  existed  before  the  cession  of  the  Philippine 
Islands  to  the  United  States  by  the  treaty  of  Paris,  December  10,  1898. 
Upon  the  theory  that  the  city  under  its  present  charter  from  the  gov- 
ernment of  the  Philippine  Islands  is  the  same  juristic  person  and  liable 
upon  the  obligations  of  the  old  city,  these  actions  were  brought  against 
it.  The  Supreme  Court  of  the  Philippine  Islands  denied  relief,  holding 
that  the  present  municipality  is  a  totally  different  corporate  entity,  and 
in  no  way  liable  for  the  debts  of  the  Spanish  municipality. 

The  fundamental  question  is  whether,  notwithstanding  the  cession 
of  the  Philippine  Islands  to  the  United  States,  followed  by  a  reincor- 
poration of  the  city,  the  present  municipality  is  liable  for  the  obliga- 
tions of  the  city  incurred  prior  to  the  cession  to  the  United 
States.     *     *     * 

The  city  as  now  incorporated  has  succeeded  to  all  of  the  property 
rights  of  the  old  city  and  to  the  right  to  enforce  all  of  its  causes  of  ac- 
tion. There  is  identity  of  purpose  between  the  Spanish  and  American 
charters  and  substantial  identity  of  municipal  powers.  The  area  and 
the  inhabitants  incorporated  are  substantially  the  same.  But  for  the 
change  of  sovereignty  which  has  occurred  under  the  treaty  of  Paris, 
the  question  of  the  liability  of  the  city  under  it^  new  charter  for  the 
debts  of  the  old  city  would  seem  to  be  of  easy  solution.    The  principal 

main  of  September  10.  1919,  articles  52,  58,  61,  203.  204,  and  14  American 
Journal  of  International  Law  Supplement  (1920)  1-183. 

See,  also,  the  agreement  with  regard  to  the  contributions  to  the  cost  of 
liberation  of  the  territories  of  the  former  Austro-Hungarian  monarchy, 
signed  at  Saint-Germain-en-Laye,  September  10,  1919 ;  the  declaration  modi- 
fying this  agreement,  signed  at  Paris,  December  8,  1919 ;  the  agreement  with 
regard  to  the  Italian  Reparation  Payments,  signed  at  Saint-Germain-en-Laye, 
September  10,  1919;  the  declaration  modifying  this  agreement,  signed  at 
Paris,  December  8,  1919 ;  the  Declaration  of  Accession  by  the  Serb-Croat- 
Slovene  State  to  the  Treaty  of  Peace  with  Austria,  of  September  10,  1919, 
signed  at  Paris.  December  5,  1919 ;  14  American  Journal  of  International  Law 
Supplement  (1920)  344-355. 

3-  Parts  of  the  opinion  are  omitted. 


Ch.  1)  '  STATES  87 

question  would  therefore  seem  to  be  the  legal  consequence  of  the  cession 
referred  to  upon  the  property  rights  and  civil  obligations  of  the  city  in- 
curred before  the  cession.  And  so  the  question  was  made  to  turn  in 
the  court  below  upon  the  consequence  of  a  change  in  sovereignty  and 
a  reincorporation  of  the  city  by  the  substituted  sovereignty.     *     *     * 

The  historical  continuity  of  a  municipality  embracing  the  inhabitants 
of  the  territory  now  occupied  by  the  city  of  Manila  is  impressive.  Be- 
fore the  conquest  of  the  Philippine  Islands  by  Spain,  Manila  existed. 
The  Spaniards  found  on  the  spot  now  occupied  a  populous  and  fortified 
community  of  Moros.  In  1571  they  occupied  what  was  then  and  is 
now  known  as  Manila,  and  established  it  as  a  municipal  corporation. 
In  1574  there  w^as  conferred  upon  it  the  title  of  "illustrious  and  ever 
loyal  city  of  Manila."  From  time  to  time  there  occurred  amendments, 
and,  on  January  19,  1894,  there  was  a  reorganization  of  the  city  gov- 
ernment under  a  royal  decree  of  that  date.  Under  that  charter  there 
was  power  to  incur  debts  for  municipal  purposes  and  power  to  sue  and 
be  sued.  The  obligations  here  in  suit  were  incurred  under  the  charter 
referred  to,  and  are  obviously  obligations  strictly  within  the  provision 
of  the  municipal  power.  To  pay  judgments  upon  such  debts  it  was  the 
duty  of  the  Ayuntamiento  of  Manila,  which  was  the  corporate  name  of 
the  old  city,  to  make  provision  in  its  budget. 

The  contention  that  the  liability  of  the  city  upon  such  obligations 
was  destroyed  by  a  mere  change  of  sovereignty  is  obviously  one  which 
is  without  a  shadow  of  moral  force,  and,  if  true,  must  result  from 
settled  principles  of  rigid  law.  While  the  contracts  from  which  the 
claims  in  suit  resulted  were  in  progress,  war  between  the  United  States 
and  Spain  ensued.  On  August  13,  1898,  the  city  was  occupied  by  the 
forces  of  this  Government  and  its  affairs  conducted  by  military  au- 
thority. On  July  31,  1901,  the  present  incorporating  act  w^as  passed, 
and  the  city  since  that  time  has  been  an  autonomous  municipality.  The 
charter  in  force  is  act  183  of  the  Philippine  Commission  and  now  may 
be  found  as  chapters  68  to  75  of  the  Compiled  Acts  of  the  Philippine 
Commission.     *     *     * 

The  charter  contains  no  reference  to  the  obligations  or  contracts  of 
the  old  city. 

If  we  understand  the  argument  against  the  liability  here  asserted,  it 
proceeds  mainly  upon  the  theory  that  inasmuch  as  the  predecessor  of 
the  present  city,  the  Ayuntamiento  of  Alanila,  was  a  corporate  entity 
created  by  the  Spanish  government,  when  the  sovereignty  of  Spain  in 
the  islands  was  terminated  by  the  treaty  of  cession,  if  not  by  the  capit- 
ulation of  August  13,  1908,  the  municipality  ipso  facto  disappeared 
for  all  purposes.  This  conclusion  is  reached  upon  the  supposed  analo- 
gy to  the  doctrine  of  principal  and  agent,  the  death  of  the  principal 
ending  the  agency.  So  complete  is  the  supposed  death  and  annihila- 
tion of  a  municipal  entity  by  extinction  of  sovereignty  of  the  creating 
State  that  it  was  said  in  one  of  the  opinions  below  that  all  of  the  pub- 


88  RIGHTS   AND   DUTIES   OF  NATIONS   IN   TIME   OF   PEACE       (Part  1 

lie  property  of  Manila  passed  to  the  United  States,  "for  a  considera- 
tion, which  was  paid,"  and  that  the  United  States  was  therefore  justi- 
fied in  creating  an  absolutely  new  municipality  and  endowing  it  with 
all  of  the  assets  of  the  defunct  city,  free  from  any  obligation  to  the 
creditors  of  that  city.  And  so  the  matter  was  dismissed  in  the  Trigas 
Case  by  the  Court  of  First  Instance,  by  the  suggestion  that  "the  plain- 
tiff may  have  a  claim  against  the  crown  of  Spain,  which  has  received 
from  the  United  States  payment  for  that  done  by  the  plaintiff." 

We  are  unable  to  agree  with  the  argument.  It  loses  sight  of  the  dual 
character  of  municipal  corporations.  They  exercise  powers  which 
are  governmental  and  powers  which  are  of  a  private  or  business  char- 
acter. In  the  one  character  a  municipal  corporation  is  a  governmental 
subdivision,  and  for  that  purpose  exercises  by  delegation  a  part  of  the 
sovereignty  of  the  State.  In  the  other  character  it  is  a  mere  legal 
entity  or  juristic  person.  In  the  latter  character  it  stands  for  the 
community  in  the  administration  of  local  affairs  wholly  beyond  the 
sphere  of  the  public  purposes  for  which  its  governmental  powers  are 
conferred. 

The  distinction  is  observed  in  South  Carolina  v.  United  States,  199 
U.  S.  437,  461,  26  Sup.  Ct.  110,  50  L.  Ed.  261.  4  Ann.  Cas.  737,  where 
Lloyd  V.  Mayor  of  New  York.  5  N.  Y.  369.  374,  55  Am.  Dec.  347,  and 
Western  Savings  Society  v.  Philadelphia,  31  Pa.  175,  72  Am.  Dec.  730, 
are  cited  and  approved.  In  Lloyd  v.  Mayor  of  New  York,  supra,  it  is 
said : 

"The  corporation  of  the  city  of  New  York  possesses  two  kinds  of 
power,  one  governmental  and  public,  and,  to  the  extent  they  are  held 
and  exercised,  is  clothed  with  sovereignty,  the  other  private,  and  to  the 
extent  they  are  held  and  exercised,  is  a  legal  individual.  The  former 
are  given  and  used  for  public  purposes,  the  latter  for  private  purposes. 
While  in  the  exercise  of  the  former,  the  corporation  is  a  municipal  gov- 
ernment, and  while  in  the  exercise  of  the  latter,  is  a  corporate  legal 
individual."     *     *     * 

In  view  of  the  dual  character  of  municipal  corporations  there  is  no 
public  reason  for  presuming  their  total  dissolution  as  a  mere  conse- 
quence of  military  occupation  or  territorial  cession.  The  suspension  of 
such  governmental  functions  as  are  obviously  incompatible  with  the 
new  political  relations  thus  brought  about  may  be  presumed.  But  no 
such  implication  may  be  reasonably  indulged  beyond  that  result. 

Such  a  conclusion  is  in  harmony  with  the  settled  principles  of  public 
law  as  declared  by  this  and  other  courts  and  expounded  by  the  text 
books  upon  the  laws  of  war  and. international  law.  Taylor,  Interna- 
tional Public  Law,  §  578. 

That  there  is  a  total  abrogation  of  the  fgrmer  political  relations  of 
the  inhabitants  of  the  ceded  region  is  obvious.  That  all  laws  theretofore 
in  force  which  are  in  conflict  with  the  political  character,  constitution 
or  institutions  of  the  substituted  sovereign  lose  their  force,  is  also  plain. 


Ch.  1)  ,  STATES  89 

Alverez  y  Sanchez  v.  United  States,  216  U.  S.  167,  30  Sup.  Ct.  361,  54  \ 
L.  Ed.  432.  But  it  is  equally  settled  in  the  same  public  law  that  that 
great  body  of  municipal  law  which  regulates  private  and  domestic  rights 
continues  in  force  until  abrogated  or  changed  by  the  new  ruler.  In 
Chicago,  Rock  Island  &  Pacific  Railway  Co.  v.  McGlinn,  114  U.  S.  542„ 
546,  5  Sup.  Ct.  1005,  29  L.  Ed.  270,  it  was  said: 

"It  is  a  general  rule  of  public  law,  recognized  and  acted  upon  by  the 
United  States,  that  whenever  political  jurisdiction  and  legislative  pow- 
er over  any  territory  are  transferred  from  one  nation  or  sovereign  to 
another,  the  municipal  laws  of  the  country,  that  is,  laws  which  are  in- 
tended for  the  protection  of  private  rights,  continue  in  force  until  abro- 
gated or  changed  by  the  new  governrhent  or  sovereign.  By  the  cession 
public  property  passes  from  one  government  to  the  other,  but  private 
property  remains  as  before,  and  with  it  those  municipal  laws  which  are 
designed  to  secure  its  peaceful  use  and  enjoyment.  As  a  matter  of 
course,  all  laws,  ordinances,  and  regulations  in  conflict  with  the  political 
character,  institutions  and  constitution  of  the  new  government  are  at 
once  displaced.  Thus,  upon  a  cession  of  political  jurisdiction  and  leg- 
islative power — and  the  latter  is  involved  in  the  former — to  the  United 
States,  the  laws  of  the  countr}'  in  support  of  an  established  religion, 
or  abridging  the  freedom  of  the  press,  or  authorizing  cruel  and  unusual 
punishments,  and  the  like,  would  at  once  cease  to  be  of  obligatory  force 
without  any  declaration  to  that  effect;  and  the  laws  of  the  country  on 
other  subjects  would  necessarily  be  superseded  by  existing  laws  of  the 
new  government  upon  the  same  matters.  But  with  respect  to  other  laws 
affecting  the  possession,  use  and  transfer  of  property,  and  designed  to 
secure  good  order  and  peace  in  the  community,  and  promote  its  health 
and  prosperity,  which  are  strictly  of  a  municipal  character,  the  rule  is 
general,  that  a  change  of  government  leaves  them  in  force  until,  by 
direct  action  of  the  new  government,  they  are  altered  or  repealed." 

The  above  language  was  quoted  with  approval  in  Downes  v.  Bidwell, 
182  U.  S.  244,  298,  21  Sup.  Ct.  770,  45  L.  Ed.  1088. 

That  the  United  States  might,  by  virtue  of  its  situation  under  a 
treaty  ceding  full  title,  have  utterly  extinguished  every  municipality 
which  it  found  in  existence  in  the  Philippine  Islands  may  be  conceded. 
That  it  did  so  in  view  of  the  practice  of  nations  to  the  contrary  is 
not  to  be  presumed  and  can  only  be  established  by  cogent  evi- 
dence.    *     *     * 

The  conclusion  we  reach  that  the  legal  entity  survived  both  the  mili- 
tary occupation  and  the  cession  which  followed  finds  support  in  the 
cases  which  hold  that  the  Pueblos  of  San  Francisco  and  Los  Angeles, 
which  existed  as  municipal  organizations  prior  to  the  cession  of  Cali- 
fornia by  Mexico,  continued  to  exist  with  their  community  and  prop- 
erty rights  intact.  Cohas  v.  Raisin,  3  Cal.  443;  Hart  v.  Burnett,  15 
Cal.  530;  Townsend  v.  Greelev,  5  Wall.  326,  18  L.  Ed.  547;  Merry- 
man  v.  Bourne,  9  Wall.  592,  602,  19  L.  Ed.  683 ;    More  v.  Steinbach, 


90  RIGHTS   AND  DUTIES   OF  NATIONS   IN   TIME   OP  PEACE  (Part  1 

127  U.  S.  70,  8  Sup.  Ct.  1067,  32  L.  Ed.  51;  Los  Angeles  Milling 

Co.  V.  Los  Angeles,  217  U.  S.  217,  30  Sup.  Ct.  452,  54  L.  Ed. 
736.    *    *    * 


II.  Effect  on  Private  Rights  of  Property 
UNITED  STATES  v.  PRIOLEAU. 

(High   Court  of  Chancery,  1865,     2  Hem.  &  M.  559.) 

Certain  of  the  component  States  of  the  United  States  of  America 
having  seceded,  and  estabHshed  a  de  facto  government  under  the  style 
of  the  Confederate  States  of  America,  the  Confederate  government 
raised  funds  by  voluntary  contributions  and  taxes,  and  thereby  became 
possessed,  as  public  property  of  their  Government,  of  certain  cotton. 

By  an  agreement  dated  the  7th  of  July,  1864,  between  the  defendant, 
Prioleau,  one  of  the  members  of  a  firm  of  Eraser,  Trenholm  &  Co., 
carrying  on  business  in  Liverpool,  of  the  one  part,  and  McCrae,  who 
was  an  agent  of  the  Confederate  Government,  of  the  other  part,  it  was 
agreed  as  follows :  Prioleau  was  to  build  eight  steam-vessels,  to  be 
let  out  to  hire  to  McCrae,  and  to  be  employed  in  the  transport  of 
cotton  from  the  Confederate  States.  The  cargoes  were  to  be  consign- 
ed to  Prioleau,  to  be  sold  by  him  according  to  instructions.  Out  of 
the  proceeds  all  expenses  of  sailing  the  ships  and  otherwise  in  respect 
thereof  were  to  be  recouped  and  commission  paid,  and  of  the  balance 
one-half  was  to  be  applied  as  McCrae  should  direct,  and  the  other  half 
to  be  retained  by  Prioleau  until  the  gross  purchase-money  of  the  ves- 
sels should  be  made  up,  and  the  vessels  were  then  to  be  transferred  to 
McCrae  as  purchaser.  The  purchase-money  was  to  be  20  per  cent,  in 
addition  to  the  cost  of  building.  McCrae  was  to  guarantee  the  safety 
of  the  ships,  and  pay  damages  for  any  that  might  be  lost.  The  mem- 
bers of  Eraser,  Trenholm  &  Co.,  were  Americans,  but  Prioleau  was 
naturalized  as  a  British  subject. 

Certain  of  the  cotton  before  mentioned  was  shipped  at  Galveston  in 
Texas,  one  of  the  Confederate  States,  by  the  agent  of  the  Confederate 
Government,  and  taken  to  Havana,  where  the  cotton  was  delivered  to 
an  agent  of  Prioleau's  firm.  He  caused  it  to  be  reshipped  in  the  Aline, 
one  of  the  eight  ships  the  subject  of  the  agreement,  and  consigned  to 
Eraser  &  Co.  in  Liverpool,  where  the  ship  had  recently  arrived,  and 
was  lying  in  the  Mersey  Docks.  The  ship  Aline  was  consigned  to  the 
defendants,  Malcolmson  and  others.  The  Aline  had  left  Havana^e- 
/fore_the..submission  of  the  Confederate  armies  in  Texas,  but  after  the 
i  conquest  of  other  portions  of  the  Confederate  States. 

The  plaintiffs  by  their  bill  claimed  to  have  the  cotton  delivered  up 
to  them,  and  prayed  an  injunction  to  restrain  the  defendants  from 
dealing  with  it,  and  a  receiver. 

The  case  now  came  on  upon  motion  for  a  receiver  and  injunction. 


Ch.  1)  STATES  91 

It  appeared  in  the  evidence  that  the  cotton  was  worth  about  £40,000, 
and  that  Fraser  &  Co.  had  incurred  expenses  in  saiHng  the  ships  of 
about  i20,000,  which  remained  unsatisfied,  independently  of  the  cost 
of  building.  Some  of  the  ships  had  not  gone  to  sea,  and  had  not  been 
taken  from  the  builders'  yard  at  the  time  of  the  subjection  of  the  Con- 
federate Government. 

Vice  Chancellor  Sir  W.  Page  Wood,  The  first  point  raised  as  to 
the  rights  of  the  United  States  Government  was  whether  they  could 
take  the  cotton,  except  subject  to  the  agreement  between  the  defendants 
and  the  Confederate  Government.  The  title  of  the  United  States  to 
what  was  once  the  property  of  the  de  facto  Government  of  the  so- 
called  Confederate  States  is  scarcely  disputed.  That  Government  rais-  . 
ed  funds  (it  scarcely  matters  whether  by  voluntary  contribution  or  by 
taxation,  though  it  is  not  denied  that  compulsory  means  were  used), 
and  this  cotton  is  the  produce  of  the  funds  so  raised. 

The  de  facto  Government  has  been  displaced,  and  the  authority  of 
the  Government  of  the  United  States  has  been  restored.  This  cotton 
was  clearly  acquired  by  the  de  facto  Government,  including  several 
States,  and  not  by  the  State  of  Texas  alone.  It  is  therefore  public 
property  of  the  people  of  the  United  States,  and  belongs  as  such  to  the 
plaintiffs.  The  case  of  the  King  of  the  Two  Sicilies  and  other  authori- 
ties establish  the  principle  -  that,  where  a  de  facto  Governnient,haSi_a5\ 
such,  obtained  possession  of  property,  the  Government  which  displaces  7 
it~succeeds  to  all  its  rights. 

Then  upon  the  second  point,  as  to  the  claim  of  the_de_fendaiits_imdfir 
the_agr£ement :  I  confess  I  do  not  see  much  room  to  doubt  that  the 
United  States  must  take  subject  to  the  agreement.  That  was  the  re- 
sult of  a  negotiation  between  the  de  facto  Government  and  certain 
persons  in  England  (one  of  tliem,  as  it  appears,  being  naturalized), 
who  had  a  perfect  right  to  deal  with  the  de  facto  Government.  It  is 
not,  as  was  said,  a  taking  of  the  plaintiffs'  property  with  notice  of  their 
rights.  If  the  transactions  were  regarded  in  that  light,  the  result 
would  be  that  no  dealing  with  a  de  facto  Government  would  ever  be 
possible.  That  Government  exercised  the  power  of  levying  taxes,  and 
enjoyed  belligerent  rights  against  what,  the  plaintiffs  say,  was  the  only 
lawful  Government.  Other  nations  cannot  enter  into  that  question, 
but  must  protect  their  subjects,  and  cannot  allow  a  Government  which 
succeeds  to  the  property  of  a  de  facto  Government  to  displace  rights 
acquired  by  their  people.  If  this  were  otherwise,  the  plaintiffs  might 
equally  have  insisted  that  Confederate  vessels  lying  in  our  ports  dur- 
ing the  war  should  have  been  handed  over  by  the  authority  of  English 
tribunals  to  the  Government  of  the  United  States,  as  being  their  prop- 
erty. 

If  ^hejiase  had  been  that  of  a  body  of  mere  robbers  devastating  and 
plundering  the  territories  of  the  United  States,  our  Courts  might  have 
interfered  to  restore  property  so  acquired;  but  then  the  rightful  claim- 
ants would  have  been  not  the  United  States  Government,  but  the  per- 


92  RIGHTS  AND  DUTIES   OF   NATIONS   IN   TDIE   OP  PEACE      (Part  1 

sons  who  had  been  robbed.  It  is  only  because  the  money  was  rais_ed_ 
by  a  de  facto  Government  that  the  United  States  can  come  here  to 
claim  at  all.;  Had  the  money  been  obtained  by  mere  robbery  it  would 
never  have  become  public  property.  It  only  acquired  that  character 
because  it  was  levied  by  an  authority  exercising  rights  of  government. 
I  have  so  little  doubt  upon  this  point  that  I  cannot  put  the  defend- 
ants upon  any  terms  which  would  abridge  their  rights  under  the  con- 
tract. It  may  be  contended  that  the  measure  of  damages  should  be 
ascertained  on  this  principle :  the  defendants  to  take  out  of  the  gross 
proceeds  the  expenses  of  sailing  the  ships,  and  then  to  divide  the  bal- 
ance and  carry  one-half  to  the  account  of  the  purchase-money  of  the 
eight  ships,  and  upon  that  the  plaintiffs  to  be  entitled  to  the  eight  ships 
(other  than  those  lost  within  the  meaning  of  the  last  clause  of  the  agree- 
ment). The  only  liability  sworn  to  by  the  defendants  is  a  sum  of 
£20,000  for  expenses,  and  subject  to  the  results  of  an  account.  I  must 
treat  them  at  this  stage  of  the  cause  as  entitled  to  that.  Of  the  remain- 
ing £20,000,  the  plaintiffs  seem  to  be  entitled  to  one-half  and  the  de- 
fendants to  retain  the  other  half,  but  only  on  the  terms  of  giving  up  the 
ships.  I  do  not  now  decide  any  of  these  questions;  but,  under  the 
circumstances,  the  proper  course  will  be  to  appoint  the  defendant, 
Prioleau,  receiver,  he  either  giving  security  for  £20,000.  or  else  paying 
that  amount  into  Court  on  or  before  the  1st  of  November.^^ 

3  3  In  the  case  of  the  United  States  of  America  v.  McRae,  L.  R.  8  Eq.  69^ 
(1869),  James,  V.  C,  held  "that  upon  the  suppression  of  a  rebellion,  the  restor- 
ed legitimate  government  is  entitled,  as  of  right,  to  all  moneys,  goods,  and 
treasure  which  were  public  property  of  the  government  at  the  time  of  the 
outbreak,  such  right  being  in  no  way  affected  by  the  wrongful  seizure  of  the 
property  by  the  usurping  government.  But  with  respect  to  property  which 
has  been  voluntarily  contributed  to.  or  acquired  by,  the  insurrectionary  gov- 
ernment in  the  exercise  of  its  usurped  authority,  and  has  been  impressed  in 
its  hands  with  the  character  of  public  property,  the  legitimate  government 
is  not,  on  its  restoration,  entitled  by  title  paramount,  but  as  successor  only 
(and  ,to  that  extent  recognizing  the  authority)  of  the  displaced  usurping  gov- 
ernment; and  in  seeking  to  recover  such  property  from  an  agent  of  the  dis- 
placed government  can  only  do  so  to  the  same  extent,  and  subject  to  the  same 
rights  and  obligations,  as  if  that  government  had  not  been  displaced  and  was 
itf^elf  proceeding  against  the  agent." 

"Therefore,  a  bill  by  the  United  States  government,  after  the  supression ' 
of  the  rebellion,  against  an  agent  of  the  late  Confederate  government,  for  an 
account  of  his  dealings  in  respect  of  the  Confederate  loan,  which  he  was 
employed  to  raise  in  this  country  [England],  was  dismissed  with  costs,  in 
the  absence  of  proof  that  any  property  to  which  the  plaintiffs  were  entitled 
in  their  own  right,  as  distinguished  from  their  right  as  successors  of  the  Con- 
federate government,  ever  reached  the  hands  of  the  defendant,  and  on  the 
plaintiff  declining  to  have  the  account  taken  on  the  same  footing  as  if  taken 
between  the  Confederate  government  and  the  defendant  as  the  agent  of  such 
government,  and  to  pay  what,  on  the  footing  of  such  account  might  be  found 
due  from  them."    2  Phillimore's  International  Law  (.3d  Ed.,  1882)  p.  154. 

"'In  war,  the  public  property  of  an  enemy  captured  on  land  becomes,  for 
the  time  being  at  least,  the  property  of  the  conqueror.  No  judicial  proceeding 
is  necessary  to  pass  the  title.  Usually  the  ultimate  ownership  of  real  property 
is  settled  by  the  treaty  of  peace,  but  so  long  as  it  is  held  and  not  surrendered 
by  a  treaty  or  otherwise  it  remains  the  property  of  the  conqueror. 

"This  well-settled  principle  in  the  law  of  war  was  recognized  by  this  court 


Ch.  1)  STATES  93 

SOCIETY  FOR  THE  PROPAGATION  OF  THE  GOSPEL  IN 
FOREIGN  PARTS  v.  TOWN  OF  NEW  HAVEN  et  al. 

(Supreme  Court  of  the  United  States,  1823.    8  Wheat.  464,  5  L.  Ed.  662.) 

This  case  came  before  the  court  upon  a  certificate  of  a  division  in 
opinion  of  the  judge  of  the  Circuit  Court  for  the  District  for  Vermont. 
It  was  an  action  of  ejectment,  brought  by  the  plaintiffs  against  the 
defendants,  in  that  court.  The  material  facts,  upon  which  the  question 
of  law  arose,  were  stated  in  a  special  verdict,  and  are  as  follows : 

By  a  charter  granted  by  William  III,  in  the  13th  year  of  his  reign,  a 
number  of  persons,  subjects  of  England,  and  there  residing,  were  in- 
corporated by  the  name  of  "The  Society  for  the  Propagation  of  the 
Gospel  in  Foreign  Parts,"  in  order  that  a  better  provision  might  be 
made  for  the  preaching  of  the  Gospel,  and  the  maintenance  of  an  or- 
thodox clergy  in  the  colonies  of  Great  Britain.  The  usual  corporate 
powers  were  bestowed  upon  this  society,  and,  amongst  others,  it  was 
authorized  to  purchase  estates  of  inheritance  to  the  value  of  £2000,  per 
annum,  and  estates  for  lives  or  years,  and  goods  and  chattels,  of  any 
value.  This  charter  of  incorporation  was  duly  accepted  by  the  persons 
therein  named ;  and  the  corporation  has  ever  since  existed,  and  now 
exists,  as  an  organized  body  politic  and  corporate,  in  England,  all  the 
members  thereof  being  subjects  of  the  king  of  Great  Britain. 

On  the  2d  of  November,  1761,  a  grant  was  made  by  the  governor  of 
the  province  of  New  Hampshire,  in  the  name  of  the  king,  by  which  a 
certain  tract  of  land,  in  that  province,  was  grg.nted  to  the  inhabitants 
of  the  said  province,  and  of  the  king's  other  governments,  and  to  their 
heirs  and  assigns,  whose  names  were  entered  on  the  grant.  The  tract 
so  granted  was  to  be  incorporated  into  a  town,  by  the  name  of  New 
Haven,  and  to  be  divided  into  sixty-eight  shares,  one  of  which  was 
granted  to  "The  Society  for  the  Propagation  of  the  Gospel  in  Foreign 
Parts."  The  tract  of  land,  thus  granted,  was  divided  among  the  gran-" 
tees  by  sundry  votes  and  proceedings  of  a  majority  of  them ;  which,  by 
the  law  and  usage  of  Vermont,  render  such  partition  legal.  The  prem- 
ises demanded  by  the  plaintiffs,  in  this  ejectment,  were  set  off  to  them 
in  the  above  partition,  but  they  had  no  agency  in  the  division,  nor  was  it 
necessary,  by  the  law  and  usage  of  Vermont,  in  order  to  render  the  same 
valid. 

On  the  30th  of  October,  1794,  the  legislature  of  Vermont  passed  an 
act,  declaring,  that  the  rights  to  land  in  that  state,  granted  under  the 
authority  of  the  British  government,  previous  to  the  revolution,  to 

in  United  States  v.  Huckabee,  16  Wall.  434,  21  L.  Ed.  457  (1872),  as  applicable 
to  the  late  civil  war.  At  the  close  of  that  war  there  was  no  treaty.  When 
the  insurrection  was  put  down  the  government  of  tho  insurgents  was  broken 
up  and  there  was  no  power  to  treat  with.  Hence  the  title  to  all  captured 
property  of  the  confederate  government  then  became  absolute  in  the  United 
States."  Chase,  C.  J.,  in  Titus  v.  U.  S.,  20  Wall.  475,  481.  482,  22  L.  Ed.  400 
(1874).    See,  also,  Whitflold  v.  U.  S.,  92  U.  S.  165,  23  L.  Ed.  705  (1875). 


94  EIGHTS  AND  DUTIES  OP   NATIONS  IN   TBIE   OF  PEACE      (Parti 

"The  Society  for  the  Propagation  of  the  Gospel  in  Foreign  Parts," 
were  thereby  granted  severally  to  the  respective  towns  in  which 
such  lands  lay,  and  to  their  use  forever.  The  act  then  proceeds  to 
authorize  the  selectmen  of  each  town,  to  sue  for  and  recover  such 
lands,  if  necessary,  and  to  lease  them  out,  reserving  an  annual  rent, 
to  be  appropriated  to  the  support  of  schools.  Under  this  law,  the 
selectmen  of  the  town  of  New  Haven  executed  a  perpetual  lease 
of  a  part  of  the  demanded  premises,  to  the  defendant,  William 
Wheeler,  on  the  10th  of  February,  1800,  reserving  an  annual  rent  of 
$5.50;  immediately  after  which,  the  said  Wheeler  entered  upon  the 
land  so  leased,  and  has  ever  since  held  the  possession  thereof.  Similar 
donations  were  made,  about  the  same  time  with  the  above  grant,  to  the 
plaintiffs,  of  lands  lying  within  the  limits  of  Vermont,  by  the  governor 
of  New  Hampshire,  in  the  name  of  the  king;  but  the  plaintiffs  never 
entered  upon  such  lands,  nor  upon  the  demanded  premises,  nor  in  any 
manner  asserted  a  claim  or  title  thereto,  until  the  commencement  of 
this  suit. 

The  verdict  found  a  number  of  acts  of  the  state  of  Vermont  re- 
specting improvements  or  settlements,  and  also  the  limitation  of  ac- 
tions ;  but  as  the  discussions  at  the  bar  did  not  involve  any  questions 
connected  with  those  acts,  those  parts  of  the  special  verdict  need  not 
be  more  particularly  noticed. 

Upon  this  special  verdict,  the  judges  of  the  court  below  were  divided 
in  opinion  upon  the  question,  whether  judgment  should  be  rendered  for 
the  plaintiffs  or  defendants,  and  the  question  was  thereupon  certified  to 
this  court.     *     *     * 

February  15,  1822.    Hopkinson,  for  the  plaintiffs.     *     *     * 

Webster,  contra.  *  *  *  (Arguments  of  counsel  in  this  case  are 
elaborate  and  of  permanent  value.  Unfortunately  they  are  too  long  to 
print.] 

Mr.  Justice  Washington  ^*  delivered  the  opinion  of  the  court,  and, 
after  stating  the  case,  proceeded  as  follows : 

It  has  been  contended  by  the  counsel  for  the  defendants:  1st.  That 
the  capacity  of  the  plaintiffs,  as  a  corporation,  to  hold  lands  in  Ver- 
mont, ceased  by,  and  as  a  consequence  of,  the  Revolution ; 

2dly.  That  the  society  being,  in  its  politic  capacity,  a  foreign  cor- 
poration, it  is  incapable  of  holding  land  in  Vermont,  on  the  ground  of 
alienage;  and  that  its  rights  are  not  protected  by  the  treaty  of  peace; 

3dly.  That  if  they  were  so  protected,  still  the  effect  of  the  last  war 
between  the  United  States  and  Great  Britain  was  to  put  an  end  to  that 
treaty,  and,  consequently,  to  rights  derived  under  it,  unless  they  had 
been  revived  by  the  treaty  of  peace,  which  was  not  done. 

1.  Before  entering  upon  an  examination  of  the  first  objection,  it  may 
be  proper  to  premise,  that  this  society  is  to  be  considered  as  a  private 
eleemosynary  corporation,  although  it  was  created  by  a  charter  from 

3*  The  statement  of  facts  is  abridged. 


Ch.  1)  STATES  95' 

the  crown,  for  the  administration  of  a  public  charity.  The  endowment 
of  the  corporation  was  to  be  derived  solely  from  the  benefactions  of 
those  who  might  think  proper  to  bestow  them,  and  to  this  end,  the  so- 
ciety was  made  capable  to  purchase  and  receive  real  estates,  in  fee,  to 
a  certain  annual  value,  and  also  estates  for  life,  and  for  years,  and  all 
manner  of  goods  and  chattels,  to  any  amount. 

When  the  defendants'  counsel  contends,  that  the  incapacity  of  this 
corporation  to  hold  lands  in  Vermont,  is  a  consequence  of  the  revolu- 
tion, he  is  not  understood  to  mean,  that  the  destruction  of  civil  rights, 
existing  at  the  close  of  the  revolution,  was,  generally  speaking,  a  con- 
sequence of  the  dismemberment  of  the  empire.  If  that  could  ever  have 
been  made  a  serious  question,  it  has  long  since  been  settled  in  this  and 
others  courts  of  the  United  States.     *     *     * 

The  counsel,  then,  intended,  no  doubt,  to  confine  this  objection  to  a 
corporation  consisting  of  British  subjects,  and  existing  in  its  corporate 
capacity  in  England  which  is  the  very  case  under  consideration.  But  if 
it  be  true,  that  there  is  no  difference  between  a  corporation  and  a  natural 
person,  in  respect  to  their  capacity  to  hold  real  property;  if  the  civil 
rights  of  both  are  the  same,  and  are  equally  unaffected  by  the  dismem- 
berment of  the  empire,  it  is  difficult  to  perceive,  upon  what  ground,  the 
civil  rights  of  a  British  corporation  should  be  lost,  as  a  consequence  of 
the  revolution,  when  it  is  admitted,  that  those  of  an  individual  would 
remain  unaffected  by  the  same  circumstance.     *     *     * 

2.  The  next  question  is,  was  this  property  protected  against  for- 
feiture, for  the  cause  of  alienage,  or  otherwise,  by  the  treaty  of  peace? 
This  question,  as  to  real  estates  belonging  to  British  subjects,  was 
finally  settled  in  this  court,  in  the  case  of  Orr  v.  Hodgson,  4  Wheat. 
453,  4  L.  Ed.  613,  in  which  it  was  decided,  that  the  sixth  article  of 
the  treaty  protected  the  titles  of  such  persons,  to  lands  in  the  United 
States,  which  would  have  been  liable  to  forfeiture,  by  escheat,  for  the 
cause  of  alienage,  or  to  confiscation,  jure  belli. 

The  counsel  for  the  defendants  did  not  controvert  this  doctrine,  so 
far  as  it  applies  to  natural  persons;  but  he  contends,  that  the  treaty 
does  not,  in  its  terms,  embrace  corporations  existing  in  England,  and 
that  it  ought  not  to  be  so  construed.  The  words  of  the  sixth  article 
are,  "there  shall  be  no  future  confiscations,  made,  nor  any  prosecutions 
commenced,  against  any  person  or  persons,  for  or  by  reason  of  the 
part  which  he  or  they  may  have  taken  in  the  present  war;  and  that 
no  person  shall,  on  that  account,  suffer  any  future  loss  or  damage, 
either  in  his  person,  liberty  or  property,"  etc. 

The  terms  in  which  this  article  is  expressed  are  general  and  un- 
qualified, and  we  are  aware  of  no  rule  of  interpretation  applicable  to 
treaties,  or  to  private  contracts,  which  would  authorize  the  court  to 
make  exceptions  by  construction,  where  the  parties  to  the  contract 
have  not  thought  proper  to  make  them.  Where  the  language  of  the 
parties  is  clear  of  all  ambiguity,  there  is  no  room  for  construction. 


96  RIGHTS   AND  DUTIES   OF  NATIONS   IN   TIME   OF   PEACE      (Part  1 

Xow,  the  parties  to  this  treaty  have  agreed,  that  there  shall  be  no 
future  confiscations  in  any  case,  for  the  cause  stated.  How  cam  this 
court  say.  that  this  is  a  case  where,  for  the  cause  stated,  or  for  some 
other,  confiscation  may  lawfully  be  decreed?  We  can  discover  no 
sound  reason  why  a  corporation  existing  in  England  may  not  as  well 
hold  real  propert}-  in  the  United  States,  as  ordinary  trustees  for  char- 
itable, or  other  purposes ;  or  as  natural  persons  for  their  own  use.  We 
have  seen  that  the  exemption  of  either  or  all  of  those  persons,  from 
th.e  jurisdiction  of  the  courts  of  the  State  where  the  property  lies,  af- 
fords no  such  reason. 

It  is  said  that  a  corporation  cannot  hold  lands,  except  by  permis- 
sion of  the  sovereign  authority'.  But  this  corporation  did  hold  the 
land  in  question,  by  permission  of  tlie  sovereign  authority,  before,  dur- 
ing, and  subsequent  to  the  revolution,  up  to  the  year  1794,  when  the 
Legislature  of  \"ermont  granted  it  to  the  town  of  New  Haven ;  and  the 
only  question  is,  whether  this  grant  was  not  void  by  force  of  the  sixth 
article  of  the  above  treaty?    We  think  it  was. 

Was  it  meant  to  be  contended,  that  the  plaintiffs  are  not  within  the 
protection  of  this  article,  because  they  are  not  persons  who  could  take 
part  in  the  war,  or  who  can  be  considered  by  the  court  as  British  sub- 
jects? If  this  were  to  be  admitted,  it  would  seem  to  follow,  that  a 
corporation  carmot  lose  its  title  to  real  estate,  upon  the  ground  of 
alienage,  since,  in  its  civil  capacit}\.  it  cannot  be  said  to  be  born  under 
the  allegiance  of  any  sovereign.  But  this  would  be  to  take  a  very 
incorrect  view  of  the  subject.  In  the  case  of  the  Bank  of  the  United 
States  v.  Deveaux,  5  Cranch,  86,  3  L.  Ed.  38,  it  was  stated  by  the  court, 
that  a  corporation,  considered  as  a  mere  legal  entit}-,  is  not  a  citizen, 
and,  therefore,  could  not,  as  such,  sue  in  the  courts  of  the  United 
States,  imless  the  rights  of  the  members  of  it,  in  this  respect,  could  be 
exercised  in  their  corporate  name.  It  was  added,  that  the  name  of 
the  corporation  could  not  be  an  alien  or  a  citizen ;  but  the  corporation 
may  be  the  one  or  the  other,  and  the  controversy  is,  in  fact,  between 
those  persons  and  the  opposing  party. 

But  even  if  it  were  admitted  that  the  plaintiffs  are  not  within  the 
protection  of  the  treat}',  it  would  not  follow  that  their  right  to  hold 
the  land  in  question  was  devested  by  the  act  of  1794,  and  became 
vested  in  the  town  of  New  Haven.  At  the  time  when  this  law  was 
enacted,  the  plaintiffs,  though  aliens,  had  a  complete,  though  defeasi- 
ble, title  to  the  land,  of  which  they  could  not  be  deprived  for  the  cause 
of  alienage,  but  by  an  inquest  of  office;  and  no  grant  of  the  State 
could,  upon  the  principles  of  the  common  law,  be  valid,  imtil  the  title 
of  the  State  was  so  established.  Fairfax's  Devisee  v.  Hunter's  Lessee. 
7  Cranch,  603,  3  L.  Ed.  453.  Xor  is  it  pretended  by  the  counsel  for  the 
defendants,  ^at  this  doctrine  of  the  common  law  was  changed  by  any 
statute  law  of  the  State  of  Vermont,  at  the  time  when  this  land  was 
granted  to  the  town  of  Xew  Haven.     This  case  is  altogether  unlike 


Ch.  1)  V  STATES  97 

that  of  Smith  v.  State  of  Maryland.  6  Cranch,  286,  3  L.  Ed.  225,  which 
turned  upon  an  act  of  that  State,  passed  in  the  year  1780,  during-  the 
revolutionar}'  war,  which  declared  that  all  property  within  the  State, 
belonging  to  British  subjects,  should  be  seized,  and  was  thereby  con- 
fiscated to  the  use  of  the  State;  and  that  the  commissioners  of  con- 
fiscated estates  should  be  taken  as  being  in  the  actual  seisin  and  pos- 
session of  the  estates  so  confiscated,  without  any  office  found,  entry, 
or  other  act  to  be  done.  The  law  in  question  passed  long  after  the 
treaty  of  1783,  and  without  confiscating  or  forfeiting  this  land  (even 
if  that  could  be  legally  done),  grants  the  same  to  the  town  of  New 
Haven. 

3.  The  last  question  respects  the  eftect  of  the  late  war.  between 
Great  Britain  and  the  United  States,  upon  rights  existing  under  the 
treaty  of  peace.  Under  this  head,  it  is  contended  by  the  defendants' 
counsel  that  although  the  plaintiffs  were  protected  by  the  treaty  of 
peace,  still,  the  effect  of  the  last  war  was  to  put  an  end  to  that  treaty, 
and,  consequently,  to  civil  rights  derived  under  it,  unless  they  had 
been  revived  and  preserv^ed  by  the  treaty  of  Ghent. 

If  this  argument  were  to  be  admitted  in  all  its  parts,  it  nevertheless 
would  not  follow,  that  the  plaintiff's  are  not  entitled  to  a  judgment  on 
this  special  verdict.  The  defendants  claim  title  to  the  land  in  contro- 
versy solely  under  the  act  of  1794,  stated  in  the  verdict,  and  con- 
tend, that  by  force  of  that  law,  the  title  of  the  plaintiffs  was  devested. 
But  if  the  court  has  been  correct  in  its  opinion  upon  the  two  first 
points,  it  will  follow,  that  the  above  act  was  utterly  void,  being  passed 
in  contravention  of  the  treaty  of  peace,  which,  in  this  respect,  is  to  be 
considered  as  the  supreme  law.  Remove  that  law.  then,  out  of  the 
case,  and  the  title  of  the  plaintiffs,  confirmed  by  the  treaty  of  1794. 
remains  unaft'ected  by  the  last  war,  it  not  appearing  from  the  verdict, 
that  the  land  was  confiscated,  or  the  plaintiffs'  title  in  any  way  de- 
vested, during  the  war,  or  since,  by  office  found,  or  even  by  any  legis- 
lative act. 

But  there  is  a  still  more  decisive  answer  to  this  objection,  which  is, 
that  the  termination  of  a  treaty  cannot  devest  rights  of  property 
already  vested  under  it. 

If  real  estate  be  purchased  or  secured  under  a  treaty,  it  would  be 
most  mischievous  to  admit,  that  the  extinguishment  of  the  treaty 
extinguished  the  right  to  such  estate.  In  truth,  it  no  more  affects 
such  rights,  than  the  repeal  of  a  municipal  law  aft'ects  rights  acquired 
under  it.  If,  for  example,  a  statute  of  descents  be  repealed,  it  has 
never  been  supposed,  that  rights  of  property  already  vested  during  its 
existence,  were  gone  by  such  repeal.  Such  a  construction  would  over- 
turn the  best  established  doctrines  of  law,  and  sap  the  very  foundation 
on  which  property  rests. 

But  we  are  not  inclined  to  admit  the  doctrine  urged  at  the  bar,  that 
Scott  Int.Law — 7 


98  EIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME    OF   PEACE         (Part  1 

treaties  become  extinguished,  ipso  facto,  by  war  between  the  two 
governments,  unless  they  should  be  revived  by  an  express  or  implied 
renewal  on  the  return  of  peace.  Whatever  may  be  the  latitude  of  doc- 
trine laid  down  by  elementary  writers  on  the  law  of  nations,  deal- 
ing in  general  terms  in  relation  to  this  subject,  we  are  satisfied,  that 
the  doctrine  contended  for  is  not  universally  true.  There  may  be 
treaties  of  such  a  nature,  as  to  their  object  and  import,  as  that  war 
will  put  an  end  to  them ;  but  where  treaties  contemplate  a  permanent 
arrangement  of  territorial,  and  other  national  rights,  or  which,  in  their 
terms,  are  meant  to  provide  for  the  event  of  an  intervening  war,  it 
would  be  against  every  principle  of  just  interpretation  to  hold  them 
extinguished  by  the  event  of  war.  If  such  were  the  law,  even  the 
treaty  of  1783,  so  far  as  it  fixed  our  limits,  and  acknowledged  our  in- 
dependence, would  be  gone,  and  we  should  have  had  again  to  struggle 
for  both  upon  original  revolutionary  principles.  'Such  a  construction 
was  never  asserted,  and  would  be  so  monstrous  as  to  supersede  all  rea- 
soning. 

We  think,  therefore,  that  treaties  stipulating  for  permanent  rights 
and  general  arrangements,  and  professing  to  aim  at  perpetuity,  and  to 
deal  with  the  case  of  war  as  well  as  of  peace,  do  not  cease  on  the  occur- 
rence of  war,  but  are,  at  most,  only  suspended  while  it  lasts ;  and  unless 
they  are  waived  by  the  parties,  or  new  and  repugnant  stipulations  are 
made,  they  revive  in  their  operation  at  the  return  of  peace. 

A  majority  of  the  court  is  of  opinion,  that  judgment  upon  this  special 
verdict  ought  to  be  given  for  the  plaintift's,  which  opinion  is  to  be  cer- 
tified to  the  Circuit  Court. 

Certificate  for  the  plaintiffs.^" 

35  "The  passage  cited  by  counsel  from  the  language  of  Mr.  Justice  Wash- 
ington in  Society  for  the  Propagation  of  the  Gospel  v.  New  Haven,  8  Wheat. 
464,  493,  5  L.  Ed.  662  (1S23),  also  illustrates  this  doctrine.  There  the  learned 
justice  observes  that  'if  real  estate  be  purchased  or  secured  under  a  treaty,  it 
would  be  most  mischievous  to  admit  that  the  extinguishment  of  the  treaty 
extinguished  the  right  to  such  estate.  In  truth,  it  no  more  affects  such  rights 
than  the  repeal  of  a  municipal  law  affects  rights  acquired  under  it.'  Of  this 
doctrine  there  can  be  no  question  in  this  court."  The  Chinese  Exclusion  Case, 
130  U.  S-  5S1,  610,  9  Sup.  Ct.  623,  32  L.  Ed.  1068   (1889). 

To  the  same  effect  Fiott  et  als.  v.  Commonwealth,  12  Grat.  (Va.)  564,  577 
(1855),  where  it  is  said:  "But  it  has  been  determined  by  the  Supreme  Court 
that  the  termination  of  a  treaty  by  war  does  not  divest  rights  of  property  al- 
ready vested  under  it.  Society  for  the  Propagation  of  the  Gospel  v.  New 
Haven,  8  Wheat.  464,  5  L.  Ed.  662  (1823)  ;  Fox  v.  Southack,  12  Mass.  143 
(1815)." 

The  practice  of  nations  and  the  opinions  of  publicists  seem  to  be  divided 
upon  the  effect  of  war  upon  treaties.  Great  Britain  appears  to  hold  that 
treaties  in  general  are  abrogated,  whereas  the  United  States  maintains  that 
they  are  only  suspended,  by  war.  The  consensus  of  opinion  seems  to  incline 
toward  their  abrogation  by  war,  unless  it  is  provided  otherwise  in  the  treaty 
of  peace.  On  this  subject,  see  Samuel  B.  Crandall's  Treaties,  Their  Making 
and  Enforcement  (2d  Ed.  1916)  442-456. 

Scott  Int.Law 


Ch.  1)  STATES  99 

UNITED  STATES  v.  PERCHEMAN. 

(Supreme  Court  of  the  United  States,  1833.    7  Pet.  51,  8  L.  Ed.  604.) 

Marshall,  Chief  Justice.^*^  This  is  an  appeal  from  a  decree  pro- 
nounced by  the  judge  of  the  superior  court  for  the  district  of  East 
Florida,  confirming  the  title  of  the  appellee  to  2,000  acres  of  land  lying 
in  that  territory,  which  he  claimed  by  virtue  of  a  grant  from  the  Span- 
ish governor,  made  in  December,  1815.  *  *  *  Florida  was  a 
colony  of  Spain,  the  acquisition  of  which  by  the  United  States  was 
extremely  desirable.  It  was  ceded  by  a  treaty  concluded  between  the 
two  powers  at  Washington,  on  the  22d  day  of  February,  1819.  The 
second  article  contains  the  cession,  and  enumerates  its  objects.  The 
eighth  contains  stipulations  respecting  the  titles,  to  lands  in  the  ceded 
territory. 

It  may  not  be  unworthy  of  remark,  that  it  is  very  unusual,  even  in 
cases  of  conquest,  for  the  conqueror  to  do  more  than  to  displace  the 
sovereign  and  assume  dominion  over  the  country.  The  modern  usage 
of  nations,  which  has  become  law,  would  be  violated ;  that  sense  of 
justice  and  of  right  which  is  acknowledged  and  felt  by  the  whole 
civilized  world  would  be  outraged,  if  private  property  should  be  gen- 
erally confiscated,  and  private  rights  annulled.  The  people  change 
their  allegiance ;  their  relation  to  their  ancient  sovereign  is  dissolved ; 
but  their  relations  to  each  other,  and  their  rights  of  property,  remain 
undisturbed.  If  this  be  the  modern  rule,  even  in  cases  of  conquest, 
who  can  doubt  its  application  to  the  case  of  an  amicable  cession  of 
territory?  Had  Florida  changed  its  sovereign  by  an  act  containing  no 
stipulation  respecting  the  property  of  individuals,  the  right  of  prop- 
erty tn  all  those  who  became  subjects  or  citizens  of  the  new  govern- 
ment would  have  been  unaffected  by  the  change;  it  would  have  re- 
mained the  same  as  under  the  ancient  sovereign.  The  language  of 
the  second  article  conforms  to  this  general  principle :  "His  Catholic 
Majesty  cedes  to  the  United  States  in  full  property  and  sovereignty, 
all  the  territories  which  belong  to  him,  situated  to  the  eastward  of  the 
Mississippi,  by  the  name  of  East  and  West  Florida." 

A  cession  of  territory  is  never  understood  to  be  a  cession  of  the 
property  belonging  to  its  inhabitants.  The  king  cedes  that  only  which 
belonged  to  him;  lands  he  had  previously  granted,  were  not  his  to 
cede.  Neither  party  could  so  understand  the  cession;  neither  party 
could  consider  itself  as  attempting  a  wrong  to  individuals,  condemned 
by  the  prcictice  of  the  whole  civilized  world.  The  cession  of  a  terri- 
tory, by  its  name,  from  one  sovereign  to  another,  conveying  the  com- 
pound idea  of  surrendering  at  the  same  time  the  lands  and  the  people 
who  inhabit  them,  would  be  necessarily  understood  to  pass  the  sover- 

8«  The  statement  of  facts  is  omitted  and  only  the  opinion  of  the  court  is 
given  on  the  question  of  principle. 


100         RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE         (Part  1 

eignty  only,  and  not  to  interfere  with  private  property.  If  this  could 
be  doubted,  the  doubt  would  be  removed  by  the  particular  enumeration 
which  follows:  "The  adjacent  islands,  dependent  on  said  provinces, 
all  public  lots  and  squares,  vacant  lands,  public  edifices,  fortifications, 
barracks  and  other  buildings  which  are  not  private  property,  archives 
and  documents  which  relate  directly  to  the  property  and  sovereignty 
of  the  said  provinces,  are  included  in  this  article."  This  special  enu- 
meration could  not  have  been  made,  had  the  first  clause  of  the  article 
been  supposed  to  pass  not  only  the  objects  thus  enumerated,  but  pri- 
vate property  also.  The  grant  of  buildings  could  not  have  been  lim- 
ited by  the  words  "which  are  not  private  property,"  had  private  prop- 
erty been  included  in  the  cession  of  the  territory. 

This  state  of  things  ought  to  be  kept  in  view,  when  we  construe  the 
eighth  article  of  the  treaty,  and  the  acts  which  have  been  passed  b> 
congress  for  the  ascertainment  and  adjustment  of  titles  acquired  un- 
der the  Spanish  government.  That  article,  in  the  English  part  of  it, 
is  in  these  words :  "All  the  grants  of  land  made  before  the  24th  of 
January,  1818,  by  his  Catholic  Majesty,  or  by  his  lawful  authorities, 
in  the  said  territories  ceded  by  his  majesty  to  the  United  States,  shall 
be  ratified  and  confirmed  to  the  persons  in  possession  of  the  lands,  to 
the  same  extent  that  the  same  grants  would  be  valid  if  the  territories 
had  remained  under  the  dominion  of  his  Catholic  Majesty." 

This  article  is  apparently  introduced  on  the  part  of  Spain,  and  must 
be  intended  to  stipulate  expressly  for  that  security  to  private  property 
which  the  laws  and  usages  of  nations  would,  without  express  stipula- 
tion, have  conferred.  No  construction  which  would  impair  that  se- 
curity further  than  its  positive  words  require,  would  seem  to  be  ad- 
missible. Without  it,  the  titles  of  individuals  would  remain  as  valid 
under  the  new  government  as  they  were  under  the  old;  and  those  ti- 
tles, so  far  at  least  as  they  were  consummate  might  be  asserted  in  the 
courts  of  the  United  States,  independently  of  this  article. 

The  treaty  was  drawn  up  in  the  Spanish  as  well  as  in  the  English 
language;  both  are  originals,  and  were  unquestionably  intended  by 
the  parties  to  be  identical.  The  Spanish  has  been  translated,  and  we 
now  understand,  that  the  article  as  expressed  in  that  language,  is, 
that  the  grants  "shall  remain  ratified  and  confirmed  to  the  person  in 
possession  of  them,  to  the  same  extent,"  etc.,  thus  conforming  exactly 
to  the  universally  received  doctrine  of  the  law  of  nations.  If  the  Eng- 
lish and  the  Spanish  parts  can.  without  violence,  be  made  to  agree, 
that  construction  which  establishes  this  conformity  ought  to  prevail. 
If,  as  we  think  must  be  admitted,  the  security  of  private  property  was 
intended  by  the  parties ;  if  this  security  would  have  been  complete 
without  the  article,  the  United  States  could  have  no  motive  for  insist- 
ing on  the  interposition  of  government  in  order  to  give  validity  to 
titles  which,  according  to  the  usages  of  the  civilized  world,  were  al- 
ready valid.     No  violence  is  done  to  the  language  of  the  treaty  by  a 


Ch.  1)  STATES  101 

construction  which  conforms  the  English  and  Spanish  to  each  other. 
Although  the  words  "shall  be  ratified  and  confirmed,"  are  properly 
the  words  of  contract,  stipulating  for  some  future  legislative  act ; 
they  are  not  necessarily  so.  They  may  import  that  they  "shall  be 
ratified  and  confirmed,"  by  force  of  the  instrument  itself.  When  we 
observe,  that  in  the  counterpart  of  the  same  treaty,  executed  at  the 
same  time  by  the  same  parties,  they  ate  used  in  this  sense,  we  think 
the  construction  proper,  if  not  unavoidable.  In  the  case  of  Foster  v. 
Neilson,  2  Pet.  253,  7  L.  Ed.  415,  this  court  considered  these  words  as 
importing  contract.  The  Spanish  part  of  the  treaty  was  not  then 
brought  to  our  view,  and  we  then  supposed,  that  there  w^as  no  variance 
Jbetween  them.  We  did  not  suppose,  that  there  was  even  a  formal 
difference  of  expression  in  the  same  instrument,  drawn  up  in  the  lan- 
guage of  each  party.  Had  this  circumstance  been  known,  we  believe 
it  would  have  produced  the  construction  which  we  now  give  to  the  ar- 
ticle.    *     *     * 

The  decree  is  affirmed.'' 


THE  ROMAN  CATHOLIC  APOSTOLIC  CHURCH  v.  THE 
PEOPLE  IN  PORTO  RICO. 

(Supreme  Court  of  Porto  Rico.  1906.    11  Porto  Rico  Rep.  466.) 

Mr.  Chief  Justice  Ouinones  delivered  the  opinion  of  the  court. 

Attorney  Juan  Hernandez  Lopez,  in  the  name  and  on  behalf  of  the 
Right  Reverend  Catholic  Bishop  of  this  Diocese  of  Porto  Rico,  as  such, 
and  consequently  with  all  the  rights  of  representation  and  powers 
vested  in  him  as  the  diocesan  prelate  of  the  Roman  Catholic  Apostolic 
Church  in  this  Island,  and  in  accordance  with  the  authority  under  the 
provisions  of  the  Act  of  the  Legislative  Assembly  of  March  10,  1904. 
filed  the  complaint  which  is  the  subject  of  this  controversy  in  the  Su- 
preme Court  against  the  People  of  Porto  Rico,  seeking  a  judgment  di- 
recting said  defendant  to  return  to  the  Roman  Catholic  Apostolic 
Church  the  property  it  holds,  emanating  from  the  religious  communities 

3  7  Followed  in  Mutual  Assur.  Soc.  v.  Watts,  1  Wheat.  279.  4  L.  Ed.  91  (1816)  ; 
Mitrhel  et  al.  v.  U.  S.,  9  Pet.  711,  734-736.  749,  9  L.  Ed.  2&3  (1S35):  Strother 
V.  Lucas,  12  Pet.  410,  9  L.  Ed.  1137  (1S3S);  U.  S.  v.  Clarke's  Heirs,  16  Pet. 
228.  10  L.  Ed.  946  a.'=!42):  Airliart  v.  Massieu.  98  U.  S.  491.  2-5  L.  Ed.  213  (1878) ; 
Kinkead  v.  U.  S.,  150  U.  S.  483,  14  Sup.  Ct.  172,  37  L.  Ed.  1152  (1893),  to  the 
effect  that  fixtures  attached  to  laud  pass  with  cession  of  land. 

Distinguished  in  Garcia  v.  Lee,  12  Pet.  511,  9  L.  Ed.  117G  (1838)  ;  U.  S.  v. 
Wiggins,  14  Pet.  334,  10  L.  Ed.  481  (1S40) ;  U.  S.  v.  Miranda  et  al.,  16  Pet.  153. 
10  L.  Ed.  920  (1842) ;  Chavez  v.  Chavez  de  Sanchez,  7  N.  M.  58,  32  Pac.  137 
(1893). 

See,  especially,  Leitensdorfer  v.  Webb,  20  How.  176,  15  L.  Ed.  891  (1857). 

U.  S.  V.  De  Repentigny,  5  Wall.  211,  18  L.  Ed.  627  (1860),  is  a  leading  case 
on  the  subject.  It  has  had  the  good  fortune  to  be  repeattdly  cited  and  approv- 
ed 'by  the  Supivnie  Court,  most  forciblv  and  aptly,  perhaps,  in  Xe.v  York  In- 
dians V.  U.  S.,  170  U.  S.  1,  25,  18  Sup.  Ct.  531,  42  L.  Ed.  927    (1897). 


102  RIGHTS    AND   DUTIES    OP    NATIONS    IN   TIME   OF   PEACE      (Part  1 

of  Dominican  and  Franciscan  Friars  which  existed  in  this  city  and  were 
suppressed,  and  which  property  the  Government  of  this  Island  seized 
in  the  year  1838  under  the  so-called  laws  of  secularization  of  church 
property,  published  in  Spain ;  and  although  it  has  subsequently  been 
held  to  be  the  exclusive  property  of  the  Roman  Apostolic  Church,  as  all 
other  property  of  the  same  origin  in  the  possession  of  the  Government 
of  Spain,  and  the  latter  had  contracted  the  solemn  obligation  of  re- 
turning it  to  the  Catholic  Church,  in  accordance  with  the  provisions  of 
the  Concordat  concluded  with  the  Holy  See  in  the  years  1851  and  1859, 
the  Spanish  Government  in  Porto  Rico  had  never  done  so,  but  retained 
in  its  possession  the  property  of  the  suppressed  religious  communities 
until  the  change  of  sovereignty  in  this  Island,  the  same  subsequently 
passing,  under  the  Treaty  of  Paris,  to  the  government  of  the  United 
States,  and  from  the  latter  to  the  People  of  Porto  Rico,  which  now 
possesses  and  enjoys  it.  He  likewise  prayed,  as  a  consequence  of  such 
return,  that  the  People  of  Porto  Rico  be  adjudged  to  pay  to  the  Roman 
Catholic  Apostolic  Church  the  rents  and  products  which  the  properties 
returned  have  produced  or  which  they  should  have  produced,  from 
October  18,  1898,  to  the  date  of  the  return  thereof,  such  rents  and 
products  to  be  fixed  by  this  court  upon  a  report  of  experts,  in  accord- 
ance with  the  law ;  and  to  pay,  besides,  the  amount  of  annuities  redeem- 
ed by  the  estates  subject  thereto  between  said  date  and  the  present  date, 
or  such  as  may  be  subsequently  redeemed  until  the  judgment  is  execut- 
ed, as  also  legal  interest  on  these  sums  at  the  rate  of  6  per  cent,  per  an- 
num, with  the  costs  of  the  action  likewise  against  the  defendants. 

The  principal  ground  of  the  complaint  is  based  upon  the  fact  that  the 
church  having  become  separated  from  the  State  as  a  consequence  of 
the  change  of  sovereignty,  and  being  left  without  any  means  with 
which  to  meet  its  requirements,  because  on  the  very  day  on  which  this 
Island  was  occupied  by  the  American  army  it  ceased  to  receive  the 
amount  appropriated  in  the  budget  to  provide  for  the  expenses  of 
worship  and  the  clergy,  in  accordance  with  the  provisions  of  the  Con- 
cordats concluded  with  the  Holy  See,  it  was  but  reasonable  and  just 
that  the  property  belonging  to  it  now  in  the  possession  of  the  Govern- 
ment of  Porto  Rico  should  be  returned  to  it,  the  rights  of  ownership 
to  which  it  had  not  lost  by  the  cession  thereof  to  the  United  States  un- 
der the  Treaty  of  Paris  because,  according  to  article  8  of  said  treaty, 
the  cession  made  by  Spain  of  the  property  which  under  the  law  was  of 
the  public  domain,  and  as  such  belonged  to  the  Crown  of  Spain  in 
this  Island,  should  be  understood,  and  was  understood,  to  be  without 
prejudice  to  the  rights  of  ownership  of  civic  or  ecclesiastical  corpora- 
tions, or  of  any  other  bodies  having  legal  capacity  to  acquire  and  to  pos- 
sess property  in  the  territories  ceded  or  relinquished  or  to  private  in- 
dividuals of  whatsoever  nationality,  this  article  applying  precisely  to  the 
Catholic  Church,  whose  capacity  to  acquire  and  possess'  property  is 
absolutely  indisputable. 


Ch.  1)  STATES  103 

The  properties  constituting  the  subject  matter  of  the  claim  of  the 
Catholic  Church  were  described  in  the  complaint,  some  of  them  indi- 
vidually, and  others  with  reference  to  two  certificates  attached  there- 

+y-v  5K         'K         'I* 

The  complaint  of  the  Catholic  Church  has  been  contested  by  the 
People  of  Porto  Rico  on  a  number  of  grounds  alleged  in  its  amended 
answer  and  which  we  will  take  up  later.  For  the  present  we  will  con- 
fine ourselves  to  an  examination  of  the  historical  antecedents  of  this 
interesting  matter  in  order  then  to  determine  whether  or  not  the 
complaint  of  the  Catholic  Church  is  a  just  one. 

It  is  actually  a  fact,  as  shown  in  an  incontrovertible  manner,  by  the 
evidence  introduced  in  this  action,  that  some  time  about  1837  and  1838, 
and  for  many  years  before,  there  were  in  this  city  of  San  Juan  two  re- 
ligious communities  of  Dominican  and  Franciscan  Friars,  of  which 
the  former  resided  in  a  convent  publicly  considered  to  be  their  prop- 
erty, called  Santo  Domingo,  situated  in  the  northern  part  of  the  city, 
the  same  building  now  occupied  by  the  offices  of  this  Supreme  Court 
and  of  the  district  court  on  the  upper  floor  and  by  some  military  de- 
pendencies on  the  lower ;  and  the  latter — that  is  to  say,  the  Franciscans 
— in  another  convent  called  San  Francisco,  situated  on  the  plaza  of  the 
same  name  in  this  city,  now  occupied,  so  we  understand,  by  the  High 
School  of  San  Juan.  Both  buildings  are  described  in  the  bill  of  par- 
ticulars submitted  by  counsel  for  the  Catholic  Church. 

In  addition  to  these  convents  and  another  convent  which  the  Domini- 
cans had  in  the  city  of  San  German,  called  Santo  Domingo-Portacelli, 
said  religious  communities  possessed  many  other  properties,  consisting 
of  rural  and  urban  estates  of  no  little  value,  and  a  great  number  of 
annuity-earning  endowments  which  produced  large  revenues,  with 
which  they  met  the  expense  of  their  maintenance  and  the  requirements 
of  Divine  worship  in  the  churches  antiexed  to  their  respective  con- 
vents. 

Upon  the  extinction  of  religious  communities  in  Spain  and  the 
seizure  by  the  State  of  all  their  property  under  the  so-called  seculariza- 
tion laws,  the  communities  of  Dominicans  and  Franciscans  established 
in  this  capital  suffered  the  same  fate,  this  taking  place  in  this  Island 
about  the  year  1838.  Afifairs  continued  in  this  state  for  a  few  years 
longer  until,  upon  the  termination  of  the  Carlist  War,  which  had  exert- 
ed so  much  influence  upon  the  hostile  attitude  of  the  Government  to- 
ward the  clergy  because  they  were  believed  to  be  partisans  of  the  In- 
fante, Don  Carlos,  who  was  a  pretender  to  the  Crown  of  Spain  and 
was  said  to  receive  great  financial  assistance  from  the  religious  com- 
munities, normal  conditions  having  been  restored  the  Cortes  enacted 
and  the  Queen  of  Spain,  Isabella  II,  sanctioned  the  law  of  May  8,  1849, 
by  which  the  Government  was  authorized  to  enter  into  negotiations  with 
the  Holy  See  to  settle  the  matter  of  the  clergy  and  all  questions  pend- 
ing between  both  powers.    Through  these  negotiations  the  arrangement 


1C>4  RIGHTS   AND  DUTIES   OF   NATIONS  IN   TIME   OF   PEACE      (Parti 

sought  was  actually  reached,  the  famous  Concordat  of  March  16,  1851, 
being  concluded  between  the  Holy  See — then  occupied  by  His  Holiness 
Pope  Pius  IX — and  Her  Majesty  the  Queen  of  Spain,  Isabella  II, 
through  their  respective  high  commissioners,  which  arrangement  has 
since  formed  part  of  the  public  law  of  Spain,  under  which  a  multitude 
of  questions  pending  between  the  Holy  See  and  the  Spanish  Govern- 
ment were  actually  settled,  the  most  important  thereof  being,  for  our 
purpose,  those  relating  to  the  secularization  of  church  property,  which, 
in  view  of  their  importance  in  the  decision  of  the  questions  at  issue  in 
this  litigation,  we  will  transcribe  below  in  full.     *     *     * 

The  provisions  of  the  convention  supplemental  to  the  Concordat  of 
March  16,  1851,  are  still  more  interesting  than  the  provisions  tran- 
scribed. This  convention  was  concluded  between  the  Holy  See  and 
the  Government  of  Spain  on  August  25,  1859,  under  the  authority 
granted  the  latter  by  the  law  of  November  4  of  the  same  year  to  con- 
clude and  ratify  a  conx^ention  with  the  Holy  See  for  the  main  purpose 
of  exchanging  all  ecclesiastical  property  for  nontransferable  3  per  cent, 
consolidated  bonds,  and  to  represent  by  bonds  of  the  same  character 
the  remainder  of  the  allowance  for  worship  and  the  clergy,  if  the  re- 
spective dioceses  should  so  agree,  reserving  to  the  church  the  right  to 
acquire  property  vested  in  it  by  article  41  of  the  Concordat,  and  with- 
out reckoning  in  its  allowance  the  amount  of  the  income  it  might  sub- 
sequently acquire. 

The  principal  provisions  of  this  convention  with  reference  to  our  ob- 
ject are  the  following,  which,  owing  to  their  great  importance,  we  also 
transcribe.     *     ♦     * 

Now,  then,  in  view  of  the  stipulations  contained  in  the  Concordat  of 
March  16,  1851,  and  in  the  convention  supplemental  thereto  of  which 
we  have  just  spoken,  there  can  be  no  question  as  to  the  perfect  right 
of  ownership  of  the  Roman  Catholic  Apostolic  Church  over  the  proper- 
ty seized  from  the  religious  communities  by  virtue  of  the  so-called  sec- 
ularization mortmain  laws,  which  property  was  in  the  possession  of  the 
Government  at  the  time  of  the  publication  of  the  first  of  said  Concor- 
dats, and  which  remained  in  the  possession  after  the  supplemental  con- 
vention of  1859,  pending  the  exchange  thereof  in  the  new  form  agreed 
with  the  Holy  See,  at  the  suggestion  of  the  Spanish  Government. 

This  exchange  was  effected  in  all  or  most  of  the  dioceses  of  Spain, 
in  pursuance  of  the  provisions  of  the  Government  to  carry  it  out,  among 
others  the  Royal  Decree  of  August  21,  1860,  which  contains  the  rules 
to  be  observed  for  the  proper  execution  thereof ;  but  this  is  not  the  case 
in  the  Islands  of  Cuba  and  Porto  Rico,  in  which  the  provisions  of  the 
Concordat  relating  to  the  return  to  the  Catholic  Church  of  the  property' 
seized  from  the  religious  communities  were  never  carried  out,  nor 
was  the  exchange  made  in  the  manner  agreed  with  the  Holy  See  nor  in 
any  other  manner.     *     *     * 


Ch.  1)  STATES  105 

It  is  therefore  evident,  and  there  can  be  no  doubt  on  the  subject,  that 
the  property  derived  from  the  religious  communities  of  Franciscans 
and  Dominicans  seized  by  the  Government,  and  which  was  in  its  posses- 
sion at  the  time  of  the  change  of  sovereignty  in  this  Island  and  in- 
cluded in  the  cession  made  by  Spain  to  the  Ijnited  States  of  all  real 
property  of  public  ownership  in  Porto  Rico,  belonged  to  the  Roman 
Catholic  Apostolic  Church,  which  has  not  lost  its  right  of  ownership, 
protected  as  it  is  by  the  Treaty  of  Paris,  Article  VIII,  whereof  left 
unimpaired  acquired  rights,  as  we  have  already  observed. 

Having  thus  established  in  principle  the  right  of  ownership  of  the 
Roman  Catholic  Apostolic  Church  in  the  property  derived  from  the 
communities  of  Franciscans  and  Dominicans  in  the  possession  of  the 
Government  of  this  Island,  at  the  time  it  was  ceded  by  Spain  to  the 
United  States,  let  us  now  enter  upon  an  examination  of  the  exceptions 
of  the  representatives  of  the  People  of  Porto  Rico  to  the  complaint 
filed  by  the  Catholic  Church. 

The  first  is  that  relating  to  the  title  of  ownership  of  the  church  to  the 
property,  subject-matter  of  the  claim  in  question.     *     *     * 

But  this  objection  of  the  People  of  Porto  Rico  is  absolutely  inefficient 
in  this  case ;  the  Catholic  Church  bases  its  right  of  ownership  upon  the 
stipulations  of  the  Concordat  concluded  between  the  Holy  See  and  the 
Government  of  Spain  on  March  16,  1851,  and  upon  the  convention  sup- 
plementary thereto  concluded  between  the  same  high  contracting  par- 
ties on  August  25,  1859.  according  to  which  the  Government  of  Spain, 
which  had  seized  all  the  property  of  the  religious  communities  and 
which  still  had  some  of  it  in  its  possession,  solemnly  recognized  the 
ownership  of  such  property  in  favor  of  the  Catholic  Church  and  ob- 
ligated itself  to  return  such  property  immediately  and  without  delay, 
although  on  account  of  the  special  circumstances  surrounding  such 
property  and  other  considerations,  both  contracting  parties  agreed  that 
it  would  be  exchanged  for  nontransferable  3  per  cent,  bonds  of  the 
consolidated  public  debt  of  Spain,  upon  the  basis  of  its  value  to  be  fixed 
by  the  bishops,  in  concurrence  with  their  chapters  in  their  respective 
dioceses,  in  order  to  provide  the  church  with  a  source  of  income  with 
which  to  meet  the  expenses  of  Catholic  worship. 

The  title  of  ownership  of  the  church  cannot  be  more  evident;  it  is 
constituted  by  the  Concordats  concluded  between  the  Holy  See  and  the 
Crown  of  Spain,  which  partake  of  the  character  of  real  international 
agreements,  and  which  as  diplomatic  documents,  have  all  the  formal- 
ities necessary  to  make  them  authentic  and  form  part  of  the  Spanish 
public  law  contained  in  the  legislative  collection  of  Spain. 

Therefore,  the  first  objection  of  the  People  of  Porto  Rico  to  the  com- 
plaint of  the  Catholic  Church  must  be  dismissed. 

The'  same  is  to  be  said  with  respect  to  the  capacity  of  the  Catholic 
Bishop  of  Porto  Rico  to  represent  the  Catholic  Church  in  this  litiga- 
tion.    *     ♦     * 


106  RIGHTS    AND   DUTIES   OF    NATIONS   IN    TIME    OP    PEACE       (Part  1 

With  regard  to  the  title  of  ownership  of  the  Franciscan  and  Domin- 
ican Friars  to  the  property  forming  the  subject-matter  of  the  claim 
herein,  which  constitutes  another  objection  made  to  the  complaint  by 
counsel  for  the  People  of  Porto  Rico,  we  believe  that  this  is  a  point 
absolutely  foreign  to  the  question  at  issue,  and  consequently,  that  it 
should  not  be  discussed.     *     *     * 

The  only  question  at  issue  here,  as  we  have  said,  consists  in  deter- 
mining whether  or  not  the  properties  claimed  in  the  complaint  are  of 
those  seized  by  the  Government  from  the  Franciscan  and  Dominican 
'Friars  in  connection  with  the  suppression  of  said  religious  communi- 
ties; and  this  question,  which  we  might  call  the  identification  of  the 
thing  claimed,  is  so  clear  that  there  can  be  no  doubt  about  jt.     *     *     * 

The  fact  is,  as  we  have  stated  above,  that  the  record  contains  a  list  of 
the  properties  claimed  by  the  Catholic  Church  *  *  *  and  it  is  a  fact 
that  in  the  inventory  taken  of  the  documents  seized  from  the  Domini- 
cans, appears  the  title  of  ownership  to  the  lots  assigned  to  the  com- 
munity by  Conqueror  Juan  Ponce  de  Leon,  which  document  seems  to 
have  been  lost,  but  of  the  existence  whereof  there  can  be  no  doubt  be- 
cause it  is  referred  to  not  only  in  the  inventory  to  which  we  have  al- 
luded, but  also  in  other  record  of  proceedings  on  file  in  the  Government 
offices  which  have  been  brought  to  this  trial  as  evidence  by  counsel  for 
the  Catholic  Church. 

Upon  this  point  the  identity  of  the  properties  claimed  by  the  Catholic 
Church  as  a  part  of  those  taken  from  the  religious  communities  of 
Dominicans  and  Franciscans,  when  the  Government  seized  all  their 
properties,  neither  can  there  be  the  slightest  doubt.  It  is  a  very  clear 
point  upon  which  the  official  documents  on  file  in  the  record  throw  a 
strong  light.     *     *     * 

Finally,  there  is  still  to  be  considered  one  more  objection  made  by  the 
People  of  Porto  Rico  to  the  complaint  of  the  Catholic  Church,  namely, 
that  relating  to  the  Convent  of  Santo  Domingo  and  the  lands  annexed 
thereto,  and  the  lot  upon  which  Ballaja  Barracks  is  located,  upon  which 
points  the  defendant  alleges  in  its  answer  to  the  complaint,  that  such 
property,  not  being  in  its  possession  inasmuch  as  the  President  of  the 
United  States  had  reserved  it  for  military  purposes,  under  the  authority 
vested  in  him  by  an  act  of  Congress,  nothing  can  be  definitely  decided 
in  this  action  upon  said  real  property  because  the  Government  of  the 
United  States  is  not  a  party  thereto. 

On  this  point  we  have  nothing  to  oppose  to  the  statement  of  the 
representative  of  the  People  of  Porto  Rico.  The  objection  is  well 
taken ;  but  we  must  say  that  the  evidence  heard  in  this  action  also  shows 
that  said  Convent  of  Santo  Domingo  with  the  lands  appurtenant  thereto, 
as  well  as  the  lots  upon  which  Ballaja  Barracks  is  located,  are  the 
property  of  the  Roman  Catholic  Apostolic  Church,  and  that  only  upon 
a  technical  ground,  strengthened  by  the  respect  we  have  for  a  decision 
of  the  President  of  the  United  States,  we  will  not  make  the  same  pro- 


Ch.l;"  STATES  107 

nouncement  with  regard  to  said  property — that  is  to  say,  that  it  be  re- 
turned to  the  Catholic  Church,  together  with  the  other  property  sought 
to  be  recovered  in  this  action. 

We  understand,  therefore,  that  with  this  single  exception,  the  Cath- 
olic Church  should  be  restored  in  the  possession  of  all  other  properties 
belonging  to  it  which  the  People  of  Porto  Rico  are  improperly  possess- 
ing and  enjoying,  and  that  judgment  should  be  rendered  to  this  effect 
in  this  action,  this  Supreme  Court  thus  repairing  the  act  of  despoliation 
committed  by  the  Government  of  Spain  against  the  Rom^n  Catholic 
Apostolic  Church  in  ceding  and  conveying  to  the  Government  of  the 
United  States  the  property  belonging  to  it  to  which  this  complaint 
refers  without  having  previously  acquired  the  same  in  the  form  agreed 
upon  in  the  treaties  concluded  with  the  Holy  See,  conformably  to  the 
principles  of  international  law  once  more  proclaimed  by  the  Treaty  of 
Paris  under  Article  VIII  thereof.  Nor  is  the  doctrine  announced  by 
the  Supreme  Court  of  the  United  States  in  the  case  of  Castana  v. 
United  States  ^^  an  obstacle  to  the  application  of  these  principles  in 
this  case  according  to  which  "although  it  is  the  duty  of  a  nation  re- 
ceiving the  cession  of  territory  to  respect  property  rights  as  recognized 
by  the  nation  making  the  cession,  it  is  under  no  obligation  whatever  to 
correct  the  errors  committed  by  the  ceding  nation  against  an  individual 
prior  to  the  cession,  unless  the  act  6i  dispossession  or  error  committed 
by  the  ceding  nation  was  so  recent  at  the  time  of  the  making  of  the 
cession  that  the  party  dispossessed  could  not  have  resorted  to  the 
courts  of  the  ceding  nation  to  obtain  relief,  and  in  such  case  it  might 
be  the  duty  of  the  nation  receiving  the  ceded  territory;"  which  is 
precisely  the  case  involved,  because  the  act  of  despoliation  committed 
against  the  Catholic  Church  is  so  recent,  it  having  been  consummated 
exactly  when  the  American  Government  took  possession  of  this  Island 
in  virtue  of  the  cession  thereof  made  by  the  Government  of  Spain,  that 
the  Catholic  Church  has  not  been  able  to  obtain  a  remedy  in  any  form 
other  than  by  this  action,  and  consequently,  we  have  to  deal  with  the 
same  exception  as  the  one  to  which  the  Supreme  Court  of  the  United 
States  refers  in  the  case  cited  above. 

In  view  of  all  these  considerations  we  believe  that  the  complaint 
should  be  sustained,  and,  consequently,  that  the  People  of  Porto  Rico 
should"be  adjudged  to  return  to  the  Roman  Catholic  Apostolic  Church 
in  this  Island  as  properties  seized  by  the  Government  of  the  Island  from 
the  religious  communities  of  Dominicans  and  Franciscans  suppressed 

88  A  typographical  error  has  apparently  crept  into  this  part  of  the  opinion 
of  the  learned  Chief  Justice.  The  case  referred  to  is  Cessna  v.  United  States, 
169  U.  S.  165,  186,  IS  Sup.  Ct.  304,  42  L.  Ed.  702  (1S97). 

There  is  a  further  typographical  error  in  this  part  of  the  opinion,  inas- 
much as  the  learned  Chief  Justice  is  made  to  quote  a  part  of  the  Cessna  Case, 
whereas  in  fact  he  correctly  paraphrases,  hut  does  not  quote. 

The  title  of  the  case  and  the  quotation  are  correctly  given  in  the  dissent- 
ing opinion  of  Mr.  Justice  MacLeary,  pp.  507,  508,  of  the  original  report. 


108  RIGHTS    AND    DUTIES   OF    NATIONS    IN    TIME   OF   PEACE       (Part  1 

under  the  laws  issued  in  Spain  relating  to  the  secularization  of  church 
property,  *  *  *  and  dismissing  the  complaint  with  respect  to  the 
Convent  of  Santo  Domingo  and  appurtenant  lands,  and  those  occupied 
by  the  barracks  of  Ballaja.  without  any  special  taxation  of  costs. 

Before  finally  closing  this  opinion  we  wish  to  state  here,  on  account 
of  the  intimate  relation  it  bears  to  the  case  under  consideration,  as  a 
most  interesting  precedent,  the  fact  that  the  claims  of  the  Catholic 
Church  in  the  Island  of  Cuba,  identical  to  these  formulated  by  the  di- 
ocesan prelate  of  said  church  in  this  Island  were  settled  in  a  most  satis- 
factory manner  by  the  American  Government  established  in  that  island 
during  the  period  of  the  military  occupation  thereof  after  the  war  with 
Spain.  The  Catholic  Church  has  obtained  the  restitution  of  all  of  its 
property  under  an  agreement  or  convention  concluded  with  the  Gov- 
ernment of  that  island  upon  the  basis  of  an  option  reserved  by  the  lat- 
ter to  buy  such  property  at  the  value  agreed  between  both  parties,  with- 
in a  period  of  five  years,  it  being  further  agreed,  that  until  the  Gov- 
ernment should  effect  the  purchase,  it  would  pay  the  Church  an  an- 
nual rental  of  5  per  cent,  upon  the  value  of  such  property  as  the  Gov- 
ernment should  retain  for  its  own  use,  allowing  the  Church  in  addition 
an  indemnity  in  compensation  of  the  rents  or  income  not  received  by  it 
between  the  date  of  the  occupation  and  that  of  the  signature  of  the 
agreement,  and  paying  in  ready  money  the  amount  of  the  annuities, 
with  a  reduction  of  a  reasonable  percentage  from  the  value  thereof. 

It  gives  us  pleasure  to  cite  this  precedent  which  is  publicly  known, 
and  which  shows  the  justice  of  the  claims  of  the  Catholic  Church  in 
this  litigation,  these  claims,  as  we  have  said,  being  identical  to  the 
claims  of  said  church  in  the  Island  of  Cuba. 

Decided  for  plaintiff. 

Justices  Hernandez  and  Figueras  concurred. 

Justices  MacLeary  and  Wolf  dissented.^* 

*®  Parts  of  the  opinion  and  the  dissenting  opinion  of  Mr.  ..Tustice  MacLeary 
are  omitted. 

The  United  States  recognized  the  validity  of  the  claim  of  the  Church  to 
the  Convent  of  Santo  Domingo  and  the  adjacent  lands  as  declared  by  the 
Court  in   the  principal   case. 

Therefore  to  adjust  the  difBculties  with  the  Church  growing  out  of  the 
transfer  of  Porto  Rico  to  the  United  States,  President  Roosevelt  sent  in  1908 
Robert  Bacon,  Assistant  Secretary  of  State,  later  Secretary  of  State,  and  Maj. 
Frank  Mclntyre,  now  Major  General,  U.  S.  Army,  on  special  mission  to  Porto 
Rico  "to  meet  with  representatives  of  the  insular  government  of  Porto  Rico 
and  of  the  Roman  Catholic  Church  in  that  island  with  a  view  to  reaching  some 
equitable  settlement  of  the  questions  pending  between  that  church  on  the  one 
hand  and  the  United  States  and  the  people  of  Porto  Rico  on  the  other." 

Secretary  Bacon  and  Major  Mclntyre  met  the  representatives  of  the  par- 
ties in  interest  and  to  the  satisfaction  of  all  agreed  on  behalf  of  the  United 
States  "to  pay  to  the  Roman  Catholic  Church  in  Porto  Rico  the  sum  of  -$120,- 
000  in  full  settlement  of  all  claims  of  every  nature  whatsoever  relative  to  the 
properties  claimed  by  the  Church  which  are  now  in  the  possession  of  the 
United  States." 

This  agreement  was  accepted  by  the  President,  an  act  for  the  appropriation 
of  the  money  in  questiou  was  passed  by  the  Congress  and  was  paid  to  the 


Ch.  1)  STATES  109 


III.  Effect  on  Law 

BLANKARD  v.  GALDY. 
(King's  Bench,  1693.    2  Salk.  411.) 

In  debt  on  a  bond,  the  defendant  prayed  oyer  of  the  condition,  and 
pleaded  the  statute  Edw.  VI,  against  buying  offices  concerning  the 
administration  of  justice ;  and  averred,  That  this  bond  was  given  for 
the  purchase  of  the  office  of  provost-marshal  in  Jamaica,  and  that  it 
concerned  the  administration  of  justice,  and  that  Jamaica  is  part  of 
the  revenue  and  possessions  of  the  Crown  of  England :  The  plaintiff 
replied,  that  Jamaica  is  an  island  beyond  the  seas,  which  was  conquer- 
ed from  the  Indians  and  Spaniards  in  Queen  Elizabeth's  time,  and  the 
inhabitants  are  governed  by  their  own  laws,  and  not  by  the  laws 
of  England :  The  defendant  rejoined,  That  before  such  conquest  they 
were  governed  by  their  own  laws ;  but  since  that,  by  the  laws  of  Eng- 
land: Shower  argued  for  the  plaintifif,  that  on  a  judgment  in  Jamaica, 
no  writ  of  error  lies  here,  but  only  an  appeal  to  the  Council ;  and  as 
they  are  not  represented  in  our  Parliament,  so  they  are  not  bound  by 

Church  in  full  satisfaction  of  its  admittedly  just  claims.  For  the  terms  of  the 
settlement,  see  H.  R.  Doc.  No.  1413,  60th  Cong.,  2d  Sess.  (1909). 

In  Alvarez  y  Sanchez  v.  United  States,  216  IT.  S.  167,  176,  30  Sup.  Ct. 
361,  54  L.  Ed.  432  (1910),  it  was  held  that  the  abolition  of  the  office  of  Solici- 
tor (Procurador)  gave  no  right  to  an  action  of  damages. 

"It  is  clear,"  said  Mr.  Justice  Harlan,  "that  claimant  is  not  entitled  to  be 
compensated  for  his  office  by  the  United  States  because  of  its  exercise  of  an 
authority  unquestionably  possessed  by  it  as  the  lawful  sovereign  of  the  Island 
[of  Porto  Kico]  and  its  inhabitants.  The  abolition  of  the  office  was  not,  we 
think,  in  violation  of  any  provision  of  the  Constitution,  nor  did  it  infringe 
any  right  of  property  which  the  claimant  could  assert  as  against  the  United 
States." 

In  O'Reilly  da  Camara  v.  Brooke,  209  U.  S.  45,  28  Sup.  Ct.  439,  52  L.  Ed. 
676  (1908),  the  plaintiff  was  a  Spanish  subject,  and  alleged  "a  title  by  descent 
to  the  right  to  carry  on  the  slaughter  of  cattle  in  the  city  of  Havana  and  to 
receive  compensation  for  the  same.  *  *  *  The  office  was  abolished  in 
1878,  subject  to  provisions  that  continued  the  emolument-s  until  the  incumbent 
should  be  paid." 

On  May  20,  1899,  Cuba  then  being  under  the  military  jurisdiction  of  the 
United  States,  the  American  Governor  of  Havana  issued  "an  order  that  the 
grant  in  connection  with  the  service  of  the  city  slaughterhouse,  of  which 
•  the  O'Reilly  family  and  its  grantees  were  the  beneliciaries,  was  ended  and 
declared  void,  and  that  thenceforth  the  city  should  make  provision  for  such 
services." 

The  Supreme  Court  of  the  United  States  held  that  the  emoluments  which 
the  plaintiff  claimed  "were  merely  the  incident  of  an  office,"  that  "the  right  to 
the  office  was  the  foundation  of  the  right  to  the  emoluments,"  that  "if  the 
i-ight  to  the  office  or  to  compensation  for  the  loss  of  it  was  extinguished,  all 
the  plaintiff's  rights  were  at  an  end,"  and  that  "no  ground  is  disclosed  in  the 
bill  for  treating  the  right  to  slaughter  cattle  as  having  become  a  hereditament 
independent  of  its  source." 

See,  also,  on  the  general  subject.  The  Pious  Fund  Case,  United  States  and 
Mexican  Claims  Commission  of  1808.  Opinions,  MS.  Dept.  of  State,  vol.  5,  84 
(18750  ;  The  Alsop  Case,  United  States  v.  Chile,  5  American  Journal  of  In- 
ternational Law,  1079  (1911). 


110  RIGHTS   AND   DUTIES    OP   NATIONS    IN    TBIE    OF    PEACE       (Part  1 

our  statutes,  unless  specially  named.  Vide  And.  115.  Pemberton  con- 
tra argued,  that  by  the  conquest  of  a  nation,  its  liberties,  rights  and 
properties  are  quite  lost;  that  by  consequence  their  laws  are  lost  too, 
for  the  law  is  but  the  rule  and  guard  of  the  other ;  those  that  conquer 
cannot  by  their  victory  lose  their  laws,  and  become  subject  to  others. 
Vide  Vaugh.  405.  That  error  lies  here  upon  a  judgment  in  Jamaica, 
which  could  not  be  if  they  were  not  under  the  same  law.  Et  per 
Holt,  C.  J.  and  Cur. — 

First,  in  case  of  an  uninhabited  country  newly  found  out  by  English 
subjects,  all  laws  in  force  in  England  are  in  force  there ;  so  it  seemed 
to  be  agreed. 

Secondly,  Jamaica  being  conquered,  and  not  pleaded  to  be  parcel  of 
the  kingdom  of  England,  but  part  of  the  possessions  and  revenue  of 
the  Crown  of  England,  the  laws  of  England  did  not  take  place  there, 
until  declared  so  by  the  conqueror  or  his  successors.  The  Isle  of  Man 
and  Ireland  are  part  of  the  possessions  of  the  Crown  of  England ;  yet 
retain  their  ancient  laws :  That  in  Davis,  36,  it  is  not  pretended  that 
the  custom  of  tanistry  was  determined  by  the  conquest  of  Ireland,  but 
by  the  new  settlement  made  there  after  the  conquest :  That  it  was  im- 
possible the  laws  of  this  nation,  by  mere  conquest,  without  more, 
should  take  place  in  a  conquered  coifntry;  because,  for  a  time,  there 
must  want  officers,  without  which  our  laws  can  have  no  force :  That  if 
our  law  did  take  place,  yet  they  in  Jamaica  having  power  to  make  new 
laws,  our  general  laws  may  be  altered  by  theirs  in  particulars ;  also 
they  held,  that  in  the  case  of  an  infidel  country,  their  laws  by  conquest 
do  not  entirely  cease,  but  only  such  as  are  against  the  law  of  God;  and 
that  in  such  cases  where  the  laws  are  rejected  or  silent,  the  conquered 
country  shall  be  governed  according  to  the  rule  of  natural  equity. 

Judgment  pro  quer.*" 


ANONYMOUS. 

(High  Court  of  Chancery,  1722.    2  P.  Wms.  75.) 

Sir  Joseph  Jkkyll,  Master  of  the  Rolls.  Memorandum,  9th  of 
August,  1722,  it  was  said  by  the  Master  of  the  Rolls  to  have  been  de- 
termined by  the  Lords  of  the  privy  council,  upon  an  appeal  to  the 
King  in  council  from  the  foreign  plantations. 

1st,  That  if  there  be  a  new  and  uninhabited  country  found  out  by 
English  subjects,  as  the  law  is  the  birthright  of  every  subject,  so, 
wherever  they  go,  they  carry  their  laws  with  them,  and  therefore  such 
new  found  country  is  to  be  governed  by  the  laws  of  England ;  though, 
after  such  country  is  inhabited  by  the  English,  acts  of  parliament  made 
in  England,  without  naming  the  foreign  plantations,  will  not  bind  them ; 

*<>  Another  report  of  the  same  case  may  be  found  in  4  Mod.  222.  See  Cross 
V.  Harrison,  16  How.  164,  14  L.  Ed.  889  (1853)  ;  Airhart  v.  Massieu,  98  U. 
S.  491,  25  L.  Ed.  213  (1878). 


Ch.  1)  STATES  111 

for  which  reason,  it  has  been  determined  that  the  statute  of  frauds  and 
perjuries,  which  requires  three  witnesses,  and  that  these  should  sub- 
scribe in  the  testator's  presence,  in  the  case  of  a  devise  of  land,  does 
not  bind  Barbadoes ;   but  that, 

2dly,  Where  the  King  of  England  conquers  a  country,  it  is  a  differ- 
ent consideration :  for  there  the  conqueror,  by  saving  the  lives  of  the 
people  conquered,  gains  a  right  and  property  in  such  people ;  in  con- 
sequence of  which  he  may  impose  upon  them  what  laws  he  pleases. 
But, 

3dly,  Until  such  laws  given  by  the  conquering  prince,  the  laws  and 
customs  of  the  conquered  country  shall  hold  place ;  unless  where  these 
are  contrary  to  our  religion,  or  enact  anything  that  is  malum  in  se,  or 
are  silent ;  for  in  all  such  cases  the  laws  of  the  conquering  country 
shall  prevail.  ' 


COMMONWEALTH  V.  CHAPMAN  et  al. 
(Supreme  Judicial  Court  of  Massachusetts,  1848.    13  Mete.  68.) 

Shaw,  C.  J.*^  This  M^as  an  indictment  against  the  defendants  for  a 
false  and  malicious  libel,  tried  before  the  court  of  common  pleas,  and, 
upon  a  conviction  there,  the  case  was  brought  before  this  court,  upon 
an  exception  which  has  been  most  elaborately  argued  by  the  learned 
counsel  for  the  defendants,  and  which,  if  sustained,  must  go  to  the 
foundation  of  the  prosecution;  namely,  that  there  is  no  law  of  this 
Commonwealth  by  which  the  writing  and  publishing  of  a  malicious  libel 
can  be  prosecuted  by  indictment,  and  punished  as  an  offence.  The  prop- 
osition struck  us  with  great  surprise,  as  a  most  startling  one;  but  as  it 
was  seriously  presented  and  earnestly  urged  in  argument,  we  felt  bound 
to  listeri,  and  give  it  the  most  careful  consideration ;  but  after  the  full- 
est deliberation,  we  are  constrained  to  say,  that  we  can  entertain  no 
more  doubt  upon  the  point  than  we  did  when  it  was  first  offered. 

It  is  true  that  there  is  no  statute  of  the  Commonwealth  declaring  the 
writing  or  publishing  of  a  written  libel,  or  a  malicious  libel  by  signs 
and  pictures,  a  punishable  offence.  But  this  goes  little  way  towards 
settling  the  question.  A  great  part  of  the  municipal  law  of  Massachu- 
setts, both  civil  and  criminal,  is  an  unwritten  and  traditionary  law.  It 
has  been  common  to  denominate  this  "the  common  law  of  England," 
because  it  is  no  doubt  true  that  a  large  portion  of  it  has  been  derived 
from  the  laws  of  England,  either  the  common  law  of  England,  or  those 
English  statutes  passed  before  the  emigration  of  our  ancestors,  and 
constituting  a  part  of  that  law,  by  which,  as  EnglisTi  subjects,  they  were 
governed  when  they  emigrated;  or  statutes  made  afterwards,  of  a 
general  nature,  in  amendment  or  modification  of  the  common  law, 
which  were  adopted  in  the  colony  or  province  by  general  consent. 

*i  Part  of  tlie  opiuion  is  omitted 


112  RIGHTS  AND   DUTIES   OF  NATIONS   IN    TIME  OP  PEACE      (Part  1 

In  addition  to  these  sources  of  unwritten  law,  some  usages,  grow- 
ing out  of  the  pecuHar  situation  and  exigencies  of  the  earUer  settlers 
of  Massachusetts,  not  traceable  to  any  written  statute  or  ordinance,  but 
adopted  by  general  consent,  have  long  had  the  force  of  law ;  as,  for  in- 
stance, the  convenient  practice,  by  which,  if  a  married  woman  joined 
with  her  husband  in  a  deed  conveying  land  of  which  she  is  seized  in  her 
own  right,  and  simply  acknowledge  it  before  a  magistrate,  it  shall  be 
valid  to  pass  her  land,  without  the  more  expensive  process  of  a  fine,  re- 
quired by  the  common  law.  Indeed,  considering  all  these  sources  of 
unwritten  and  traditionary  law,  it  is  now  more  accurate,  instead  of  the 
common  law  of  England,  which  constitutes  a  part  of  it,  to  call  it  col- 
lectively the  common  law  of  Alassachusetts. 

To  a  very  great  extent,  the  unwritten  law  constitutes  the  basis  of  our 
jurisprudence,  and  furnishes  the  rules  by  which  public  and  private 
rights  are  established  and  secured,  the  social  relations  of  all  persons 
regulated,  their  rights,  duties,  and  obligations  determined,  and  all  viola- 
tions of  duty  redressed  and  punished.  Without  its  aid,  the  written  law, 
embracing  the  constitution  and  statute  laws,  would  constitute  but  a  lame, 
partial,  and  impracticable  system.  Even  in  many  cases,  where  statutes 
have  been  made  in  respect  to  particular  subjects,  they  could  not  be 
carried  into  effect,  and  must  remain  a  dead  letter,  without  the  aid  of 
the  common  law.  In  cases  of  murder  and  manslaughter,  the  statute 
declares  the  punishment;  but  what  acts  shall  constitute  murder,  what 
manslaughter,  or  what  justifiable  or  excusable  homicide,  are  left  to  be 
decided  by  the  rules  and  principles  of  the  common  law.  So,  if  an  act 
is  made  criminal,  but  no  mode  of  prosecution  is  directed,  or  no  pun- 
ishment provided,  the  common  law  furnishes  its  ready  aid,  prescribing 
the  mode  of  prosecution  by  indictment,  the  common  law  punishment 
of  fine  and  imprisonment.  Indeed,  it  seems  to  be  too  obvious  to  require 
argument,  that  without  the  common  law,  our  legislation  and  jurispru- 
dence would  be  impotent,  and  wholly  deficient  in  completeness  and 
symmetry,  as  a  system  of  municipal  law. 

It  will  not  be  necessary  here  to  consider  at  large  the  sources  of  the 
unwritten  law,  its  authority  as  a  binding  rule,  derived  from  long  and 
general  acquiescence,  its  provisions,  limits,  qualifications,  and  excep- 
tions, as  established  by  well  authenticated  usage  and  tradition.  It  is 
sufficient  to  refer  to  1  Bl.  Com.  63  &  seq. 

If  it  be  asked,  "how  are  these  customs  or  maxims,  constituting  the 
common  law,  to  be  known,  and  by  whom  is  their  validity  to  be  deter- 
mined?" Blackstone  furnishes  the  answer;  "by  the  judges  in  the 
several  courts  of  justice.  They  are  the  depositaries  of  the  laws,  the 
living  oracles,  who  must  decide  in  all  cases  of  doubt,  and  who  are  bound 
by  oath  to  decide  according  to  the  law  of  the  land.  Their  knowledge  of 
that  law  is  derived  from  experience  and  study,"  "and  from  being  long 
personally  accustomed  to  the  judicial  decisions  of  their  predecessors." 
1  Bl.  Com.  69. 


Ch.  1)  STATES  113 

Of  course,  in  coming  to  any  such  decision,  judges  are  bound  to  re- 
sort to  the  best  sources  of  instruction,  such  as  the  records  of  courts  of 
justice,  well  authenticated  histories  of  trials,  and  books  of  reports,  di- 
gests, and  brief  stateinents  of  such  decisions,  prepared  by  suitable  per- 
sons, and  the  treatises  of  sages  of  the  profession,  whose  works  have 
an  established  reputation  for  correctness. 

I  That  there  is  such  a  thing  as  a  common  or  unwritten  law  of  Massa- 
chusetts, and  that,  when  it  can  be  authentically  established  and  sus- 
tained, it  is  of  equal  authority  and  binding  force  with  the  statute  law, 
seems  not  seriously  contested  in  the  argument  before  us.  But  it  is 
urged  that,  in  the  range  and  scope  of  this  unwritten  law,  there  is  no 
provision,  which  renders  the  writinggr  publishing  of  a  malicious  libel 
punishable  as  a  criminal  offence.  ^ 

The  stress  of  the  argument  of  the  learned  counsel  is  derived  from  a 
supposed  qualification  of  the  general  proposition  in  the  constitution  of 
Massachusetts,  usually  relied  on  in  proof  of  the  continuance  in  force 
of  the  rules  and  principles  of  the  common  law,  as  they  existed  before 
the  adoption  of  the  constitution.  The  clause  is  this:  Chapter  6,  art. 
1,  §  6:  "All  the  laws  which  have  been  adopted,  used  and  approved  in 
the  province,  colony  or  state  of  Massachusetts  Bay,  and  usually  prac- 
tised on  in  the  courts  of  law,  shall  still  remain  and  be  in  full  force  un- 
til altered  or  repealed  by  the  legislature;  such  parts  only  excepted  as 
are  repugnant  to  the  rights  and  liberties  contained  in  this  constitution." 

It  is  then  argued,  that  it  is  in  virtue  of  this  clause  of  the  constitution, 
that  the  common  law  of  England,  and  all  other  laws  existing  before  the 
revolution,  remain  in  force,  and  that  this  clause  so  far  modifies  the 
general  proposition,  that  no  laws  are  saved,  but  those  which  have  been 
actually  applied  to  cases  in  judgment  in  a  court  of  legal  proceeding; 
and  unless  it  can  be  shown  affirmatively  that  some  judgment  has  been 
rendered,  at  some  time  before  the  adoption  of  the  constitution,  affirm- 
ative of  any  particular  rule  or  principle  of  the  common  law,  such  rule 
is  not  brought  within  the  saving  power  of  this  clause,  and  cannot  there- 
fore be  shown  to  exist.  We  doubt  the  soundness  of  this  proposition, 
and  the  correctness  of  the  conclusion  ^rawn  from  it. 

We  do  not  accede  to  the  proposition,  that  the  present  existence  and 
e"ffect  of  the  whole  body  of  law,  which  existed  before  the  constitution, 
depends  solely  upon  this  provision  of  it.  We  take  it  to  be  a  well  set- 
tled principle,  acknowledged  by  all  civilized  states  governed  by  law, 
that  by  means  of  a  political  revolution,  by  which  the  political  organiza- 
tion is  changed,  the  municipal  laws,  regulating  their  social  relations, 
duties  and  rights,  are  not  necessarily  abrogated.  They  remain  in  force, 
except  so  far  as  they  are  repealed  or  modified  by  the  new  sovereign 
authority.  Indeed,  the  existence  of  this  body  of  laws,  and  the  social 
and  personal  rights  dependent  upon  them,  from  1776,  when  the  declara- 
tion of  independence  was  made,  and  our  political  revolution  took  place, 
Scott  Int. Law — 8 


114  EIGHTS  AND  DUTIES   OP   NATIONS   IN   TDIE   OF  PEACE      (Part  1 

to  1780,  when  this  constitution  was  adopted,  depend  on  this  principle. 
The  clause  in  the  constitution,  tlierefore,  though  highly  proper  and  ex- 
pedient to  remove  doubts,  and  give  greater  assurance  to  the  cautious 
and  timid,  was  not  necessary  to  preserve  all  prior  laws  in  force,  and 
was  rather  declaratory  of  an  existing  rule,  than  the  enactment  of  a 
new  one.  We  think,  therefore,  it  should  have  such  a  construction,  as 
best  to  carry  into  effect  the  great  principle  it  was  intended  to  establish. 

But  further;  we  think  the  argument  is  unsound  in  assuming  that  no 
rule  of  the  common  law  can  be  estabhshed  under  this  clause  of  the 
constitution,  without  showing  affirmatively,  that  in  some  judicial  pro- 
ceeding, such  rule  of  law  has  been  drawn  in  question  and  affirmed, 
previously  to  the  adoption  of  the  constitution.  During  that  time  there 
were  no  published  reports  of  judicial  proceedings.  The  records  of 
courts  were  very  imperfectly  kept,  and  afford  but  little  information  in 
regard  to  the  rules  of  law  discussed  and  adopted  in  them.  And  who 
has  examined  all  the  records  of  all  the  criminal  courts  of  Massachu- 
setts, and  can  declare  that  no  records  of  such  prosecutions  can  be 
found?  But  so  far  as  it  regards  libel,  as  a  criminal  offence,  we  think 
it  does  appear,  from  the  very  full  and  careful  examination  of  the  late 
Judge  Thacher  (Commonwealth  v.  Whitmarsh,  Thacher,  Cr.  Cas.  441), 
that  many  prosecutions  for  libel  were  instituted  in  the  criminal  courts 
before  the  revolution,  and  none  were  ever  quashed  or  otherwise  dispos- 
ed of  on  the  ground  that  there  was  no  law  rendering  libels  punishable. 
In  the  case  of  the  indictments  returned  against  Governor  Gage  and 
others,  ver\'  much  against  the  will  of  the  judges,  those  indictments  were 
received  and  filed,  and  remained,  until  non  pressed  by  the  king's  at- 
torney general.  This  investigation  of  the  history  of  the  common  law  of 
Massachusetts  is  so  thorough,  complete  and  satisfactor}^  that  it  is 
sufficient  to  refer  to  it,  as  a  clear  elucidation  of  the  subject. 

But  we  think  there  is  another  species  of  evidence  to  prove  the  exist- 
ence of  the  common  law,  making  libel  an  oft'ence  punishable  by  law. 
clear,  satisfactory  and  decisive;  and  that  is,  these  rules  of  law,  with 
some  modification,  caused  by  the  provisions  of  the  constitution,  have 
been  affirmed,  declared,  and  ratified  by  the  judiciary  and  the  legislative 
departments  of  the  existing  government  of  Massachusetts,  by  those 
whose  appropriate  province  and  constitutional  duty  it  was  to  act  and 
decide  upon  them;  so  that  they  now  stand  upon  a  basis  of  authority 
which  cannot  be  shaken,  and  must  so  stand  until  altered  or  modified 
•by  the  legislature. 

When  our  ancestors  first  settled  this  countr}%  they  came  here  as  Eng- 
lish subjects;  they  settled  on  the  land  as  English  territory,  constituting 
part  of  the  realm  of  England,  and  of  course  governed  by  its  laws ;  they 
accepted  charters  from  the  English  government,  conferring  both  polit- 
ical powers  and  civil  privileges ;  and  they  never  ceased  to  acknowledge 
themselves  English  subjects,  and  never  ceased  to  claim  the  rights  and 

Scott  I>'t.Law 


Ch.  1)  STATES  115 

privileges  of  English  subjects,  till  the  revolution.  It  is  not  therefore, 
perhaps,  so  accurate  to  say  that  they  established  the  laws  of  England 
here,  as  to  say,  that  they  were  subject  to  the  laws  of  England.  When 
they  left  one  portion  of  its  territory,  they  were  alike  subject,  on  their 
transit  and  when  they  arrived  at  another  portion  of  the  English  terri- 
tory; and  therefore  always,  till  the  declaration  of  independence,  they 
were  governed  and  protected  by  the  laws  of  England,  so  far  as  those 
laws  were  applicable  to  their  state  and  condition.  Under  this  category 
must  come  all  municipal  laws  regulating  and  securing  the  rights  of  real 
and  personal  property,  of  person  and  personal  liberty,  of  habitation, 
of  reputation  and  character,  and  of  peace.  The  laws  designed  for  the 
protection  of  reputation  and  character,  and  to  prevent  private  quarrels, 
affrays  and  breaches  of  peace,  by  punishing  malicious  libel,  were  as  im- 
portant and  as  applicable  to  the  state  and  condition  of  the  colonists  as 
the  law  punishing  violations  of  the  rights  of  property,  of  person,  or  of 
habitation ;  that  is,  as  laws  for  punishing  larceny,  assault  and  battery, 
or  burglary.  Being  part  of  the  common  law  of  England,  applicable  to 
the  state  and  condition  of  the  colonists,  they  necessarily  applied  to  all 
English  subjects  and  territories,  as  well  in  America  as  in  Great  Britain, 
and  so  continued  applicable  till  the  declaration  of  independence. 

This,  therefore,  would  be  evidence,  a  priori,  that  they  were  in  force, 
and  were  adopted  by  the  clause  cited  from  the  constitution,  except  so 
far  as  modified  by  the  excepting  clause. 

That  the  law  of  libel  existed,  at  the  first  migration  of  our  ancestors, 
and  during  the  whole  period  of  the  colonial  and  provincial  governments, 
is  proved  by  a  series  of  unquestionable  authorities ;  and  we  are  now  to 
inquire,  whether  by  the  acts  done  since  the  adoption  of  the  constitution 
— acts  of  the  judiciary  and  legislature — these  laws,  with  some  modifica- 
tion, have  not  been  affirmed  and  declared  in  such  a  manner  as  to  bring 
them  within  the  provision  of  the  constitution,  and  make  them  absolute- ' 
ly  binding,  until  repealed  by  the  legislature.     *     *     * 

These  declarations  of  the  legislature,  and  the  contemporary  exposi- 
tion of  the  constitution  by  the  older  judges,  immediately  after  its  adop- 
tion,/together  with  an  uninterrupted  course  of  judicial  practice  to  the 
present  time,  form  a  body  of  proof  that  the  common  law,  making  the 
publication  of  a  malicious  libel  a  criminal  offence,  has  been  adopted  in 
this  Commonwealth,  entirely  conclusive  and  irrefragable ;  and  he  must 
be  a  bold  judge  who  should  venture  to  decide  that  there  is  not  now,  and 
never  has  been,  any  such  law,  and  that  all  the  judgments  which  have 
been  pronounced  by  the  courts  of  this  State,  on  convictions  for  this 
offence,  have  been  erroneous. 

Exceptions  overruled.*^ 

*2  See  Advocate-General  v.  Dossee,  2  Moore,  P.  C.  (N.  S.)  22  (1S63),  for  tne 
effect  of  the  settlement  of  India  and  the  •introduction  of  English  law.  In 
this  case  it  was  held  that  the  English  law,  while  applicable  to  English  resi- 
dents, did  not,  unless  specifically  extended  to  the  natives,  apply  to  them,  and 


116  RIGHTS  AND  DUTIES  OF  NATIONS  IN   TIME   OF  PEACE      (Parti 


SECTION  4.— RESPONSIBILITY  " 
CITY  OF  NEW  ORLEANS  v.  ABBAGNATO. 

(Circuit  Court  of  Appeals,  Fifth  Circuit,  1894.     62  Fed.  240,  10  C.  0.  A.  361, 

26  L.  R.  A.  329.) 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  Eastern 
District  of  Louisiana. 

This  was  an  action  by  the  widow  of  Antonio  Abbagnato  against 
the  city  of  New  Orleans  for  damages  for  the  death  of  said  Abbag- 
nato. At  the  trial,  the  jury  found  a  verdict  of  five  thousand  dollars  for 
plaintifl,  and  judgment  for  plaintiff  was  entered  on  the  verdict.  De- 
fendant brought  error. 

The  petition  set  forth  that  Antonio  Abbagnato  was  born  in  Italy; 
that  he  emigrated  to  the  United  States  about  1884,  and  settled  in  New 
Orleans,  where  he  was  arrested  in  1891,  with  twenty  other  persons, 
charged  with  the  murder  of  the  chief  of  police  of  New  Orleans,  which 
had  recently  occurred ;  that  the  trial  resulted  in  the  acquittal,  on  March 
13,  1891,  of  Abbagnato  and  five  of  the  accused  and  a  mistrial  of  three 
others;  that  Abbagnato  and  the  others  we're  immediately  lodged  in 
jail  pending  further  legal  proceedings  ;  that  on  the  day  following  a  mass 
meeting  was  held,  at  which  inflammatory  speeches  were  made ;  that  a 
mob  of  some  forty  or  fifty  armed  men  broke  into  the  jail;  and  that 
Abbagnato  and  ten  other  prisoners  were  killed,  and  Abbagnato  and  two 
others  hanged  to  trees  or  lamp  posts  and  riddled  with  bullets. 

It  was  alleged  by  the  defendant  that  Abbagnato  was  a  naturalized 
American  citizen,  but  some  of  the  others  were  undoubtedly  Italian 
subjects. 

that  therefore,  suicide  not  being  forbidden  by  Hindoo  law.  was  not  a  crime  in 
the  natives,  although  it  would  be  if  committed  by  English  residents. 

See,  also,  First  National  Bank  of  Utah  v.  Kinner,  1  Utah,  100  (1873),  de- 
scribing the  law  in  force  in  the  territory  of  Utah,  and  the  process  by  which 
it  was  introduced  and  became  binding ;  McKennon  v.  Winn,  1  Okl.  327.  33 
Pac.  .582,  22  L.  R.  A.  501  (1893),  holding  that  the  common  law  was  in  force 
in  the  territory,  but  not  the  statute  of  frauds,  as  the  statute  was  not  part  of 
the  common  law  of  England;  Chappell  v  Jardine,  51  Conn.  64  (1884),  for  the 
effect  of  a  mortgage  upon  property  in  Ram  Island,  after  such  island  became  a 
part  of  Connecticut. 

Grants  of  land  within  a  district  made  by  a  state  exercising  de  facto 
sovereignty  over  the  district,  in  the  mistaken  belief  that  the  district  is  includ- 
ed within  its  boundaries  as  ascertained  by  compromise  between  the  states  are 
void.  Coffee  v.  Groover,  123  U.  S.  1,  8  Sup.  Ct.  1,  31  L.  Ed.  51  (1887),  rever.sing 
same  case  as  reported  in  19  Fla.  61  (1882),  and  20  Fla.  64  (1883). 

*3  "It  is  an  established  principle  of  international  law  that  a  nation  is  re- 
sponsible for  wrongs  done  by  its  citizens  to  the  citizens  of  a  friendly  power. 
Ordinarily  this  responsibility  is  discharged  by  a  government  rendering  to  a 
resident  alien  the  same  protection  which  it  affords  to  its  own  citizens  and 
bringing  the  perpetrators  to  trial  and  punishment.  This  responsibility  of  a 
nation  for  the  acts  of  its  individual  members  is  so  well  established  and  regulat- 
ed by  international  law  that  it  falls  little  short  of  being  a  natural  right.'- 
Per  Nott,  C.  J.,  in  Jonathan  Brown  v.  United  States  and  the  Brul6  Sioux.  32 
Ct.  CI.  432,  433  (1897). 


Ch.  1)  STATES  117 

The  petition  charged  that  the  city  authorities,  including  the  mayor 
and  poHce,  were  informed  in  advance  of  the  act-ion  contemplated  against 
the  prisoners,  but  that  they  neglected  their  duty  and  failed  to  protect 
them  against  impending  danger. 

The  petition  further  stated  that  Abbagnato  was  at  the  time  of  his 
death  without  wife  or  children,  and  that  therefore  his  mother,  an 
Itahan  subject  residing  in  Italy,  presented  the  claim  for  damages  for 
his  death.** 

Pardee,  Ci-rcuit  Judge.  The  treaty  between  the  kingdom  of  Italy 
and  the  United  States  proclaimed  November  23,  1871,  guarantees  to 
the  citizens  of  either  nation  in  the  territory  of  the  other  "the  most 
constant  protection  and  security  for  their  persons  and  property,"  and 
further  provides  that  "they  shall  enjoy  in  this  respect  the  same  rights 
and  privileges  as  are  or  shall  be  granted  to  the  natives  on  their  sub- 
mitting themselves  to  the  conditions  imposed  upon  the  natives." 
Treaty  of  1871,  art.  3  (17  Stat.  845).  This  treaty  applies  to  this  case 
only  so  far  as  to  require  that  the  rights  of  the  plaintiff  shall  be  ad- 
judicated and  determined  exactly  the  same  as  if  she  were,  and  her  de- 
ceased son  had  been,  a  native  citizen  of  the  United  States. 

The  Constitution  of  the  state  of  Louisiana  provides  as  follows : 

"The  citizens  of  the  city  of  New  Orleans  or  any  political  corpora- 
tion which  may  be  created  within  its  limits  shall  have  the  right  of 
appointing  the  several  public  officers  necessary  for  the  administration 
of  the  police  of  said  city,  and  pursuant  to  the  mode  of  election  which 
shall  be  provided  by  the  General  Assembly."    Const.  La.  1879,  art.  253. 

"The  maintenance  and  support  of  persons  confined  in  the  parish  of 
Orleans  upon  charges  or  conviction  for  criminal  offences  shall  be  under 
the  control  of  the  city  of  New  Orleans."    Id.  art.  147. 

The  charter  of  the  city  of  New  Orleans  "creates  all  the  inhabitants 
of  the  parish  of  Orleans,  as  now  bounded  by  *  *  *  ,  as*  a  body 
corporate,  and  establishes  them  as  a  political  corporation  by  the  name 
of  the  'City  of  New  Orleans,'  with  the  following  powers,  and  no  more : 
It  shall  have  a  seal  and  may  sue  and  be  sued.  *  *  *  (Section  1.) 
The  council  shall  have  power,  and  it  shall  be  their  duty,  to  pass  such 
ordinances,  and  to  see  to  their  faithful  execution,  as  may  be  necessary 
and  proper  to  preserve  the  peace  and  good  order  of  the  city ;  *  * 
to  organize  and  provide  an  efficient  police.  *  *  *  (Section  7.  > 
The  council  shall  also  have  power  *  *  *  to  establish  jails,  houses 
of  refuge  and  reformation  and  correction,  and  make  regulations  for 
their  government,  and  to  exercise  a  general  police  power  in  the  city  of. 
New  Orleans.  (Section  8.)  The  mayor  shall  keep  his  office  at  the  city 
hall;  *  *  *  shall  see  that  the,  laws  and  ordinances  within  the 
limits  of  the  city  of  New  Orleans  be  properly  executed;     *     *     * 

**  A  shortened  statement  has  been  substituted  for  that  of  the  original  report. 


118  RIGHTS   AND   DUTIES   OF    NATIONS    IN  TIME    OF    PEACE       (Part  1 

shall  be  ex  officio  justice  and  conservator  of  the  peace.  *  *  *  (Sec- 
tion 19.)"    Acts  1882,  No.  20,  p.  14. 

The  act  of  the  Legislature  of  Louisiana  (passed  in  1888)  creating 
the  police  board  of  the  city  of  New  Orleans  preserves  to  the  mayor  of 
the  city  of  New  Orleans  the  power,  as  the  commander  in  chief  of  the 
police  force,  to  issue  such  orders  as  may  be  necessary  and  proper  for 
the  preservation  of  the  peace  in  the  city  of  New  Orleans,  and  in  said 
act  it  was  declared  that ; 

"It  is  hereby  made  the  duty  of  the  police  force  at  all  times  of  the  day 
and  night,  and  the  members  of  such  force  are  thereunto  empowered, 
to  especially  preserve  the  public  peace,  to  prevent  crimes,  detect  and 
arrest  offenders,  suppress  riots,  mobs  and  insurrections,  disperse  unlaw- 
ful or  dangerous  assemblages  which  obstruct  the  free  passage  of  public 
streets,  sidewalks,  squares  and  places,  protect  the  rights  of  persons  and 
property,"  etc.    Acts  1888,  No.  63,  p.  64. 

The  city  of  New  Orleans,  by  her  pleadings,  admits  the  gross  negli- 
gence charged  in  the  petition  in  the  performance  of  the  duties  devolving 
upon  the  municipality  under  the  Constitution  and  laws  of  the  state 
above  referred  to,  whereby  Abbagnato  lost  his  life  at  the  hands  of  a 
mob  while  in  the  custody  of  the  law;  and  the  question  presented  in 
this  case  is  whether,  on  such  admission  of  facts,  the  city  can  be  held 
liable  in  damages.  It  is  well  settled  that  at  common  law  no  civil 
action  lies  for  injury  to  a  person  which  results  in  his  death.  Insur- 
ance Co.  V.  Brame,  95  U.  S.  754-756,  24  L.  Ed.  580;  Dennick  v.  Rail- 
road Co.,  103  U.  S.  11,  21,  26  L.  Ed.  439;  The  Harrisburg,  119  U.  S. 
199-214,  7  Sup.  Ct.  140,  30  L.  Ed.  358.  The  rule  is  the  same  under  the 
civil  law,  according  to  the  decisions  of  the  Louisiana  Supreme  Court. 
Hubgh  v.  Railroad  Co.,  6  La.  Ann.  495 ;  Hermann  v.  Railroad  Co.,  11 
La,  Ann.  5.  In  the  absence  of  a  statute  giving  a  remedy,  public  or 
municipal  corporations  are  under  no  liability  to  pay  for  the  property  of 
individuals  destroyed  bv  mobs  or  riotous  assemblages.  Add.  Torts, 
1305;DiIl.Mun.  Corp.  §959. 

In  the  case  of  State  v.  Mayor,  etc.,  of  New  Orleans,  109  U.  S.  285, 
3  Sup.  Ct.  211,  27  L.  Ed.  936,  the  Supreme  Court  of  the  United  States 
held  that  the  right  to  demand  reimbursement  from  a  municipal  corpo- 
ration for  damages  caused  by  a  mob  is  not  founded  on  contract.  It  is  a 
statutory  right,  and  may  be  given  or  taken  away  at  pleasure.  In  the 
same  case,  Mr.  Justice  Bradley,  concurring,  said : 

"I  concur  in  the  judgment  of  this  case,  on  the  special  ground  that 
remedies  against  municipal  bodies  for  damages  caused  by  mobs  or 
other  violators  of  law,  unconnected  with  the  municipal  government, 
are  purely  matters  of  legislative  policy,  depending  on  positive  law, 
which  may  at  any  time  be  repealed  or  modified,  either  before  or  after 
the  damage  has  occurred,  and  the  repeal  of  which  causes  the  remedy 
to  cease.  In  giving  or  withholding  remedies  of  this  kind,  it  is  simply 
a  question  whether  the  public  shall  or  shall  not  indemnify  those  who 


Ch.  1)  STATES  119 

sustain  losses  from  the  unlawful  acts  or  combinations  of  individuals ; 
and  whether  it  shall  or  shall  not  do  so  is  a  matter  of  legislative  discre- 
tion, just  as  it  is  whether  the  public  shall  or  shall  not  indemnify  those 
who  suffer  losses  at  the  hands  of  a  public  enemy,  or  from  intestine 
commotions  or  rebellion." 

If  this  be  the  rule  with  regard  to  the  liability  of  municipal  corpora- 
tions for  damages  to  property  committed  by  mobs  or  riotous  assem- 
blages, a  fortiori  it  must  be  the  rule  with  regard  to  the  liability  of 
municipal  corporations  for  damages  resulting  in  the  loss  of  life  from 
the  acts  of  mobs  or  riotous  assemblages.  The  reason  of  the  rule  is 
obvious.  Actions  to  recover  from  municipal  corporations  damages 
resulting  from  the  acts  of  mobs  and  riotous  assemblages  are  actions  to 
hold  such  corporations  liable  in  damages  for  a  failure  to  preserve  the 
public  peace.  The  preservation  of  the  public  peace  primarily  devolves 
upon  the  sovereign.  Under  our  system  of  government  the  State  is 
that  sovereign.  U.  S.  v.  Cruikshank,  92  U.  S.  542-553,  23  L.  Ed.  588 : 
Western  College  v.  City  of  Cleveland,  12  Ohio  St.  Z17 .  When,  by  the 
action  of  the  State,  a  municipal  corporation  is  charged  with  the  pres- 
ervation of  the  peace,  and  empowered  to  appoint  police  boards  and  oth- 
er agencies  to  that  end,  the  corporation  pro  tanto  is  charged  with  gov- 
ernmental functions  in  the  public  interest  and  for  public  purposes,  and 
is  entitled  to  the  same  immunity  as  the  sovereign  granting  the  power 
for  negligence  in  preserving  the  public  peace,  unless  such  liability  is  ex- 
pressly declared  by  the  sovereign.  This  proposition  is  so  well  rec- 
ognized that  not  a  well-considered,  adjudicated  case  can  be  found  in 
the  books  where,  in  the  absence  of  an  express  statute,  any  municipality 
has  been  held  liable  for  the  neglect  of  its  officers  to  preserve  the  peace. 
In  the  case  of  Western  College  v.  City  of  Cleveland,  supra,  it  was  said : 

"It  is  the  duty  of  the  state  government  to  secure  to  the  citizens  of 
the  state  the  peaceful  enjoyment  of  their  property  and  its  protection 
from  wrongful  and  violent  acts.  For  the  proper  discharge  of  this 
duty,  power  is  delegated  in  different  modes.  One  of  these  is  the 
establishment  of  municipal  corporations.  Powers  and  privileges  are 
also  conferred  upon  municipal  corporations  to  be  exercised  for  the 
benefit  of  the  individuals  of  whom  such  corporations  are  composed, 
and,  in  connection  with  these  powers  and  privileges,  duties  are  some- 
times specifically  imposed.  It  is  obvious  that  there  is  a  distinction  be- 
tween those  powers  delegated  to  municipal  corporations  to  preserve 
the  peace  and  protect  persons  and  property  when  they  are  to  be  exer- 
cised by  legislation  or  the  appointment  of  proper  officers,  and  those 
powers  and  privileges  which  are  to  be  exercised  for  the  improvement 
of  the  property  comprised  within  the  limits  of  the  corporation  and  its 
adaptation  for  the  purposes  of  residence  and  business.  As  to  the  first, 
the  municipal  corporation  represents  the  state ;  as  to  the  second,  the 
municipal  corporation  represents  the  pecuniary  and  proprietary  in- 
terest of  the  individuals.    As  to  the  first,  responsibility  for  acts  done  or 


120  RIGHTS   AND  DUTIES   OF   NATIONS  IN   TIME   OP   PEACE      (Part  1 

omitted  is  go^erned  by  the  same  rule  of  responsibility  which  applies 
to  like  delegations  of  power;  as  to  the  second,  the  rules  which  govern 
the  responsibility  of  individuals  are  properly  applicable." 

The  exemption  of  municipalities  from  liability  to  suits  for  damages 
for  the  negligence  of  officers  and  agents  in  the  execution  of  the  gov- 
ernmental functions  granted  by  the  state,  in  the  public  interest,  and  in 
the  absence  of  statutory  liability,  is  recognized  in  Louisiana,  as  shown 
by  the  decisions  of  the  Supreme  Court  of  the  state  in  Egerton  v.  Third 
Municipality,  1  La.  Ann.  437;  Stewart  v.  City  of  New  Orleans,  9  La. 
Ann.  461,  61  Am.  Dec.  218;  Lewis  v.  New  Orleans,  12  La.  Ann.  190; 
Bennett  v.  New  Orleans,  14  La.  Ann.  120;  Howe  v.  New  Orleans,  12 
La.  Ann,  482 ;  New  Orleans,  etc.,  R.  Co.  v.  New  Orleans,  26  La.  Ann. 
478 — although  Johnson  v.  Municipality  No.  1,  5  La.  Ann.  100,  Clague 
V.  New  Orleans,  13  La.  Ann.  275,  and  Chase  v.  Mayor,  9  La.  343,  are 
apparently  to  the  contrary.  The  Louisiana  cases,  as  well  as  those  of 
other  states,  are  very  ably  reviewed,  and  the  whole  matter  discussed, 
in  a  well-considered  opinion  of  the  learned  judge  of  the  Eastern  dis- 
trict of  Louisiana  in  the  case  of  Gianfortone  v.  City  of  New  Orleans 
(recently  decided)  61  Fed.  64,  24  L.  R.  A.  592.  It  follows,  therefore, 
that  in  order  to  recover  damages  against  the  city  of  New  Orleans  for 
the  taking  of  human  life  by  a  mob  in  said  city,  no  matter  what  the  neg- 
ligence of  the  city  officials  may  have  been,  there  must  be  a  statute  of 
the  state  of  Louisiana  expressly  or  by  necessary  implication  giving  a 
remedy  in  such  cases. 

Section  2453  of  the  Revised  Statutes  of  Louisiana  reads  as  follows: 

"The  different  municipal  corporations  in  this  state  shall  be  liable  for 
the  damages  done  to  property  by  mobs  or  riotous  assemblages  in  their 
respective  limits." 

And  article  2315,  Rev.  Civ.  Code,  as  last  amended,  reads  as  follows: 

"Every  act  whatever  of  man  that  causes  damage  to  another  obliges 
him  by  whose  fault  it  happened  to  repair  it.  The  right  of  this  action 
shall  survive  in  case  of  death  in  favor  of  the  minor  children  and  widow 
of  the  deceased  or  either  of  them,  and  in  default  of  these  in  favor  of 
the  surviving  father  or  mother,  or  either  of  them  for  the  space  of  one 
year  from  the  death.  The  survivors  above  mentioned  may  also  recover 
the  damages  sustained  by  them  by  the  death  of  the  parent  or  child  or 
husband  or  wife,  as  the  case  may  be." 

Article  2316,  Id.,  reads  as  follows: 

"Every  person  is  responsible  for  the  damage  he  occasions  not  merely 
by  his  act,  but  by  his  negligence,  his  imprudence  or  his  want  of  skill." 

And  article  2317: 

"We  are  responsible  not  only  for  the  damage  caused  by  our  own  act, 
but  for  that  which  is  caused  by  the  act  of  persons  for  whom  we  are 
answerable,  or  of  the  things  which  we  have  in  our  custody." 

It  is  not  seriously  contended  in  this  case  that  article  2453  of  the 
Revised  Statutes  of  the  state  warrants  the  maintenance  of  the  present 


Ch.  1)  STATES  121 

suit,  or  fixes  any  liability  upon  the  city  of  New  Orleans  because  of  the 
death  of  Abbagnato  at  the  hands  of  a  mob,  as  recited  in  the  petition. 
As  we  consider  the  statute  and  the  fact  of  its  existence  on  the  statute 
book,  it  goes  rather  to  deny  the  right  to  recover  in  this  case  than  to 
support  it,  for  it  shows  clearly  that  in  the  legislative  mind  the  statute 
was  necessary  to  fix  liability  upon  municipal  corporations  for  damages 
to  property  done  by  mobs ;  and  the  limitation  of  the  right  to  recover 
damages  to  property  only  shows  a  clear  legislative  intent  that  beyond 
property,  and  for  life  or  limb,  municipal  corporations  should  not  be 
responsible.  The  entire  right  of  the  plaintiff  in  error  to  recover  dam- 
ages must  then  be  based  upon  article  2315  and  the  subsequent  articles 
of  the  Civil  Code,  above  quoted.  Article  2315,  as  originally  adopted, 
was  as  follows :  , 

"Every  act  whatever  of  man  that  causes  damage, to  another  obliges 
him  by  whose  fault  it  happened  to  repair  it." 

It  was  under  this  article  that  the  decision  in  Hubgh  v.  Railroad  Co., 
supra,  was  rendered,  holding  that  an  action  for  damages  caused  by  the 
homicide  of  a  free  human  being  cannot  be  maintained.  In  regard  to 
the  article  the  court  says : 

"The  provisions  of  this  article,  however  general  and  comprehensive 
its  terms  may  be,  are  found  more  than  once  recited  in  terms  equally 
general  and  comprehensive  in  the  laws  of  the  fifteenth  title  of  the 
seventh  Partida.  The  article  was  inserted  in  the  Code  of  1809,  at  a 
time  when  the  Spanish  laws  were  in  force.  It  was  put  and  retained  to 
this  time  in  the  Code,  not  for  the  purpose  of  making  any  change  in  the 
law,  but  because  it  was  a  principle  which  was  in  its  proper  place  in  a 
Code ;  a  principle  which  would  be  equally  recognized  as  a  necessary 
conservative  element  of  society,  and  equally  obligatory,  whether  it  was 
formally  enacted  in  a  Code  or  not.  *  *  *  Merlin,  in  giving  his  con- 
clusions before  the  Court  of  Cassation,  in  the  Case  of  Michel,  Reynier 
et  al.,  respecting  the  article  1382  of  the  Code  Napoleon,  which  is  identi- 
cal with  the  article  2294  of  our  Code,  says :  'The  principle  laid  down  in 
article  1382  is  not  new.  It  is  drawn  from  the  natural  law ;  and,  long 
before  the  Napoleon  Code,  the  Roman  laws  had  solemnly  proclaimed  it. 
Long  before  that  Code,  the  French  laws  had  recognized  and  assumed  its 
existence.' " 

We  understand  from  this  that  the  article  of  the  Civil  Code  in  ques- 
tion was  not  an  innovation  of  the  civil  law,  in  force  in  the  state,  intro- 
ducing new  principles  and  establishing  new  duties  and  responsibilities 
which  did  not  before  exist.  It  is  a  part  of  a  "system  of  laws,  and  con- 
trolling only  where,  under  general  principles,  it  is  applicable  to  the 
facts  and  liabilities  of  a  particular  case.  We  have  shown  that  the  article 
was  not  enforceable  when  the  "act  whatever  of  man"  resulted  in  death, 
until  the  statute  so  declared,  and  this  because  of  the  intervention  of 
other  equally  well-recognized  principles  of  law.    To  make  it  applicable 


122      ,       EIGHTS   AND    DUTIES   OF   NATIONS   IN    TIME    OP   PEACE       (Part  1 

in  case  of  death  through  negligence,  the  Legislature  of  1855  amended 
the  article  by  adding  thereto  as  follows: 

"The  right  of  this  action  shall  survive  in  case  of  death  in  favor  of 
the  minor  children  and  widow  of  the  deceased  or  either  of  them,  and  in 
default  of  these  in  favor  of  the  surviving  father  and  mother  or  either 
of  them  for  the  space  of  one  year  from  the  death."  Acts  1855,  No.  223, 
p.  270. 

As  thus  amended,  the  scope  of  the  article  was  still  too  narrow  to  per- 
mit the  recovery  of  other  damages  than  such  as  the  deceased  himself 
would  have  had  had  he  survived  the  injury  (Vredenburg  v.  Behan,  33 
La.  Ann.  627) ;  and  therefore  the  article  was  again  amended  and  re- 
enacted,  adding  thereto  as  follows: 

"The  survivors  abov^  mentioned  may  also  recover  the  damages  sus- 
tained by  them  by^the  death  of  the  parent  or  child  or  husband  or  wife, 
as  the  case  may  be."    Acts  1884,  p.  94. 

Neither  the  amendment  of  1855  nor  that  of  1884  enlarges  the  scope 
of  the  article  as  to  the  persons  who  may  be  held  liable  for  negligence. 
The  amendments  go  no  further  than  to  provide  for  a  limited  survival 
of  the  action  and  an  enlarged  rule  of  damages.  The  article  is  appli- 
cable now  to  the  same  persons,  and  to  no  others,  as  before  amendment ; 
and  if,  before  amendment,  it  could  not  be  applied  so  as  to  hold  a  munici- 
pal corporation  liable  for  damages  resulting  from  the  acts  of  mobs 
and  riotous  assemblages,  it  cannot  be  so  applied  now.  Before  this 
amendment,  it  declared  well-known  principles  of  the  civil  law,  but  not 
all  of  them,  and  it  controlled  in  cases  where  the  application  of  other 
well-known  rules  and  principles  did  not  deny  the  action  or  defeat 
recovery.  As  amended,  it  should  have  the  same  construction  and  be 
given  the  same  force.  Before  the  act  of  1855,  it  was  not  contended, 
nor  could  it  have  been  successfully  contended,  that  the  article  was 
applicable  as  against  a  municipal  corporation  to  recover  damages  to 
either  person,  life,  or  property  resulting  from  the  acts  of  mobs  and 
riotous  assemblages.  For  these  reasons,  we  are  clear  that  neither  ex- 
pressly nor  by  implication  does  it  now  give  a  remedy  in  damages  against 
a  municipal  corporation  for  negligence  in  preserving  the  public  peace 
resulting  in  the  loss  of  life  by  the  acts  of  a  mob.  As  we  find  no  law 
of  the  state  of  Louisiana  giving  a  remedy  in  damages  against  a  munici- 
pal corporation  for  the  acts  done  -by  a  mob  resulting  in  the  loss  of 
human  life,  we  are  compelled  to  reverse  the  judgment  of  the  court 
below.     *     *     * 

The  judgment  of  the  circuit  court  is  reversed,  and  the  case  is  re- 
manded, with  instructions  to  maintain  the  exception  of  non-liability, 
and  dismiss  the  plaintiff's  petition.*^ 

*5  The  President,  by  the  Secretary  of  State,  expressed  regret  for  the  occxir- 
rence  and  declared  his  purpose  to  lay  the  matter  before  Congress  at  its  next 
session,  and  to  recommend  that  an  indemnity  be  granted  to  the  families  of 
the  murdered  men. 

"The  Italian  government  was  not  satisfied  with  this  position  of  the  United 


Ch.l)  STATES  123 


EL  TRIUNFO  CO.  CASE. 

(Special  Arbitration  Tribunal  of  United  States  and  San  Salvador,  1902.    tJ. 
S.  Foreign  Relations,  1902,  p.  859.)    • 

Opinion  of  Sir  Henry  Strong  and  Don  M.  Dickinson  : 

This  controversy  has  its  origin  in  schemes  to  establish  and  develop 

a  new  port  on  the  Pacific  coast  of  Central  America,  in  the  Republic  of 

Salvador,  on  the  Bay  of  Jiquijisco.     *     *     * 

In  the  late  summer  or  fall  of  1894  contesting  petitions  were  pre- 

States  but  demanded  further  that  the  leaders  of  the  mob  be  criminally  prose- 
cuted and  punished  according  to  law. 

"With  this  demand  the  government  of  the  United  States  could  not  comply, 
however  willing  it  might  be  to  do  so.  It  is  well  known  that  the  federal  courts 
have  no  common-law  jurisdiction  in  criminal  matters ;  it  was  impossible, 
therefore,  to  institute  a  criminal  suit  against  these  persons  in  those  courts; 
and  as  the  states  are  wholly  independent  of  the  federal  government  in  respect 
of  such  jurisdiction,  it  was  equally  impossible  to  compel  the  government  of 
the  state  of  Louisiana  to  institute  such  proceedings.  The  government  of  the 
United  States  was  therefore  quite  helpless  in  this  aspect  of  the  case,  and  could 
only  listen  to  the  complaints  of  Italy,  and  try  to  explain  to  her  statesmen 
the  intricacies  of  the  United  States  Constitution. 

"It  is  undoubtedly  within  the  competence  of  Congress  to  confer  upon  the 
federal  courts  jurisdiction  in  this  class  of  cases;  but  as  yet  it  has  not  been 
done. 

"In  regard  to  the  merits  of  this  case,  it  would  seem  that  the  United  States 
should  accept  the  responsibility,  as  in  fact  they  have  done,  for  the  acts  of  the 
mob.  In  the  first  place,  these  persons  were  in  the  custody  of  the  state  gov- 
ernment and,  for  the  purposes  of  international  law.  in  that  of  the  national 
government,  and  therefore  entitled  to  special  protection.  In  the  second  place, 
there  was  no  serious  attempt  on  the  part  of  the  proper  authorities  to  quell 
the  riot;  and  it  is  generally  understood  that  a. government  is  liable  internation- 
ally for  injuries  done  to  'alien  residents  by  a  mob  which  by  due  diligence  it 
could  have  suppi'essed.' 

"The  Italian  government  eventually  withdrew  the  demand  for  the  punish- 
ment of  the  actors  in  the  affair,  and  accepted  a  money  indemnity  instead." 

Freeman  Snow's  Cases  and  Opinions  on  International  Law,  p.  183,  note 
(1893). 

The  foreign  sojourner  is  entitled  to  an  equal,  not  greater,  protection  than 
the  native  resident.  When,  therefore,  through  civil  war  or  mob  violence  which 
the  authorities  cannot  control,  aliens  suffer  injury,  the  state  is  not  responsible 
to  the  aliens  for  injuries  thus  received. 

In  the  case  of  injuries  to  foreign  officers,  a  liability  is  assumed  which  is 
ordinarily  denied  where  private  individuals  are  concerned.  The  leading  case 
on  this  subject  is  the  New  Orleans  Riot  of  1851. 

In  1851,  Narciso  Lopez,  a  Venezuelan  by  birth,  and  a  former  soldier  in  the 
Spanish  army,  set  on  foot  an  expedition  from  New  Orleans  against  Cuba. 
Lopez  was  in  favor  of  the  annexation  of  Cuba  to  the  United  States,  and  the 
purpose  of  his  expedition  was  to  overthrow  the  Spanish  government  in  the 
island  by  force  of  arms. 

He  was  defeated,  his  expedition  dispersed,  he  was  tried  for  high  treason, 
and  executed.  A  number  of  Americans  accompanying  him  were  summarily 
^executed. 

When  this  news  reached  New  Orleans  and  Key  West,  riots  broke  out  against 
the  Spanish  residents  of  those  cities.  In  New  Orleans  the  Spanish  consulate 
was  attacked  and  much  injury  done  to  persons  and  property. 

To  the  demand  of  the  Spanish  government  for  reparation,  Daniel  Webster, 
then  Secretary  of  State,  replied  as  follows: 

"The  assembling  of  mobs  happens  in  all  countries;    popular  violences  oc- 


124  RIGHTS    AND   DUTIES    OF   NATIONS   IN    TIME    OF   PEACE       (Part  1 

sented  to  the  Government  of  Salvador  for  a  concession  of  the  right, 
for  a  period  of  years,  to  estabHsh  steam  navigation  in  the  port  of  El 
Triunfo,  setting  forth  the  details' of  the  proposed  enterprise.  One  ap- 
plication was  presented  by  Simon  Sol,  Luis  Lopez,  and  Lorenzo  Cam- 
pos, and  the  other  by  Henry  H.  Burrell  and  George  F.  Thompson,  citi- 
zens of  the  United  States,  and  Gustavo  Lozano  and  Emeterio  S.  Ru- 
ano,  citizens  of  the  Republic  of  Salvador.  The  proposals  were  pub- 
lished in  the  official  journal  of  the  Republic  by  the  proper  executi\e 
department  of  the  Government,  and  bids  were  invited  for  the  franchise 
so  sought. 

These  proceedings  resulted  in  the  awarding  of  the  franchise  or  con- 
cession to  the  Burrell  party,  and  on  October  6,  1894,  the  Republic  of 
Salvador  granted  them,  for  the  period  of  twenty-five  years,  the  ex- 
clusive right  of  steam  navigation  of  the  port,  together  with  certain  valu- 
able privileges  and  as  valuable  exemptions.  The  grant  was  in  the  form 
of  a  bilateral  contract,  signed  by  the  executive  officers  in  behalf  of  the 
Government  of  Salvador  as  party  of  the  one  part  and  by  the  grantees  as 
party  of  the  other  part.     *     *     * 

The  concession  also  required  that  the  grantees  should  form  a  corpo- 
ration to  take  and  operate  the  concession. 

Thereupon,  on  October  25,  1894,  that  corporation  was  formed,  and  is 
called  throughout  the  case  El  Triunfo  Company,  Limited.  The  capital 
stock  of  the  corporation  was  divided  into  1,000  shares. 

easionally  break  out  everywhere,  setting  law  at  defiance,  traippling  on  the 
rights  of  citizens  and  private  men.  and  sometimes  on  those  of  public  oflScers, 
and  the  agents  of  foreign  governments,  especially  entitled  to  protection.  In 
these  cases  the  public  faith  and  national  honor  require,  not  only  that  such  out- 
rages should  be  disavowed,  but  also  that  the  perpetrators  of  them  should  be 
punished,  wherever  it  is  possible  to  bring  them  to  justice,  and,  further,  that 
full  satisfaction  should  be  made  in  cases  in  which  a  duty  to  that  effect  refits 
with  the  government,  according  to  the  general  principles  of  law,  public  faith, 
and  the  obligations  of  treaties.  *  *  *  While  the  government  has  mani- 
fested a  willingness  and  determination  to  perform  every  duty  which  one 
friendly  nation  has  a  right  to  expect  from  another,  in  cases  of  this  kind,  it 
supposes  that  the  rights  of  the  Spanish  consul,  a  public  officer  residing  here 
under  the  protection  of  the  United  States  government,  are  quite  different  from 
those  of  the  Spanish  subjects  who  have  come  into  the  country  to  mingle  with 
our  own  citizens,  and  here  to  pursue  their  private  business  and  objects.  The 
former  may  claim  special  indemnity,  the  latter  are  entitled  to  such  protection 
as  is  afforded  to  our  own  citizens.  *  *  *  The  President  is  of  opinion,  as 
already  stated,  that,  for  obvious  reasons,  the  case  of  the  consul  is  different, 
and  that  the  government  of  the  United  States  should  provide  for  Mr.  Laborde 
a  just  indemnity ;  and  a  recommendation  to  that  effect  will  be  laid  before 
Congress,  at  an  early  period  of  its  approaching  session.  This  is  all  which  it  is 
in  his  power  to  do.  The  case  may  be  a  new  one,  but  the  President  being  of 
opinion  that  Mr.  Laborde  ought  to  be  indemnified,  has  not  thought  it  necessary 
to  search  for  precedents."     6  Moore,  International  Law  Digest,  812. 

On  the  general  subjects  of  mob  violence  and  the  international  incidents  to' 
which  it  has  given  rise,  see  John  Bassett  Moore,  6  International  Law  Digest, 
809-88,3. 

On  the  relation  of  the  states  of  the  American  Union  to  the  federal  govern- 
ment, and  the  constitutional  difficulties  in  the  way  of  securing  redress  from 
one  or  the  other,  see  Proceedings  of  the  American  Society  of  International 
Law,  1907,  p.  150  et  seq. ;   Id.,  1908,  p.  21  et  seq. 


Ch.  1)  STATES  125 

This  capital  stock  was  acquired  and  distributed  as  follows:  the 
Salvador  Commercial  Company,  a  corporation  created  and  existing  un- 
der the  laws  of  the  State  of  California,  which,  as  clearly  appears  by 
the  record,  was  the  moving  projector  and  spirit  in  the  enterprise  of 
developing  the  port  of  El  Triunfo  and  in  acquiring  the  concession, 
took  a  majority  of  the  stock,  that  is  to  say,  501  shares.  Henry  H.  Bur- 
rell,  who  was  made  the  president  of  El  Triunfo  Company,  and  who  was 
an  American  citizen,  acquired  and  held  5  shares.  Julius  H,  Ellis,  who 
became  the  secretary  of  El  Triunfo  Company,  and  who  was  an  Ameri- 
can citizen,  acquired  and  held  3  shares ;  J.  B,  Hays,  an  American  citizen, 
2  shares ;  Luis  Maslin,  an  American  citizen,  2  shares,  and  George  F. 
Thompson,  an  American  citizen,  15  shares,  so  that  the  total  shares 
held  by  citizens  of  the  United  States  in  El  Triunfo  Company  were  536 
in  number. 

It  is  apparent  that  upon  the  execution  of  its  contract  with  the  Salva- 
dor Government,  through  which  the  concession  was  acquired,  and  up- 
on the  formation  of  the  corporation  required  by  the  concession,  El  Tri- 
unfo Company  entered  upon  the  preparation  and  development  of  the 
port,  and  the  performance  of  the  requirements  imposed  upon  it,  with 
exceptional  enterprise  and  vigor.     *     *     * 

There  can  be  no  doubt  that  the  record  proves  to  a  demonstration  that 
the  enterprise,  which  may  properly  have  been  considered  an  experiment 
up  to  the  beginning  of  1898,  although  it  had  shown  an  improving  finan- 
cial condition  from  the  beginning  of  its  business,  was  an  assured  finan- 
cial success,  equaling  if  not  exceeding  the  most  sanguine  expectations  of 
its  promoters  by  this  showing  of  profits  on  the  steadily  increasing  busi- 
ness at  the  close  of  the  first  half  of  that  year.  A  careful  examination 
of  the  voluminous  evidence  in  the  case  shows  that  from  March  1,  1895, 
to  the  close  of  the  first  half  of  1898  the  percentage  of  gains  on  expenses 
and  losses  regularly  increased  at  the  rate  of  about  33 1/^  per  cent,  per 
annum. 

It  is  clear  to  our  minds  that  as  soon  as  the  success  of  the  enterprise 
was  so  demonstrated,  and  its  future  as  an  exceptionally  paying  enter- 
prise was  assured,  an  intrigue  commenced  within  the  company,  whose 
object  was  to  oust  the  management  and  control  the  American  interests 
and  to  wrest  the  concession  from  their  hands  and  to  appropriate  it  and 
the  entire  investment  of  the  American  shareholders  for  the  benefit  of 
the  conspirators.  There  can  be  no  other  reasonable  explanation  of  the 
events  that  now  rapidly  followed  the  stage  of  its  affairs  where  the  show- 
ing of  profits  and  the  percentage  of  increase  promised  such  large  re- 
turns for  the  future. 

At  the  annual  meeting  of  the  shareholders,  held  on  June  10,  1898,  a 
full  board  of  directors  was  elected,  including  Burrell  and  Ellis  and  Si- 
mon Sol,  who  had  been  one  of  the  competitors  for  the  concession  as 
against  the  Burrell  interests  when  it  was  granted  in  1894.  On  the 
same  day  the  board  of  directors  met  and  organized,  re-electing  Burrell 


126  RIGHTS   AND   DUTIES   OF   NATIONS   IN    TIME    OF   PEACE       (Part  1 

president,  Sol  as  vice-president,  and  Ellis  as  treasurer.  At  the  next  gen- 
eral meeting  of  the  shareholders,  held  on  July  31,  1898,  one  of  the  Sal- 
vadorean directors  resigned  his  office  as  director  and  secretary,  and 
Luis  Lopez  was  elected  to  fill  the  vacancy. 

It  may  be  of  significance  in  passing  that  this  is  the  same  Luis  Lopez 
who,  joining  with  Sol,  was  a  competitor  for  the  franchise  as  aforesaid 
as  against  the  American  or  Burrell  party  in  1894.  At  the  meeting  of 
directors  held  on  this  same  day  this  same  Luis  Lopez  was  appointed 
secretary  of  the  company. 

In  September,  1898,  while  the  president  of  the  company  was  at  the 
city  of  San  Salvador  on  its  business,  Sol  assumed  the  office  of  president 
by  clear  usurpation  and  without  any  authority  whatever,  and  without 
notice  to  Burrell  or  Ellis  assumed  to  hold  a  meeting  of  directors  at  his 
own  house  in  Santiago  de  Maria,  at  which  the  only  attendants  besides 
himself  were  the  said  Lopez  and  one  Cochella.     *     *     * 

On  October  14,  1898,  another  so-called  meeting  of  the  board  of  di- 
rectors was  held,  which  was  assumed  to  be  an  extraordinary  or  special 
meeting,  according  to  the  minutes.     *     *     * 

Without  detailing  further  the  wholly  illegal  character  of  the  meeting 
and  of  its  proceedings,  and  the  falsity  of  its  minutes,  the  fact  may  be 
stated  that  under  its  proceedings  a  petition  for  adjudication  of  the 
bankruptcy  of  thfe  company  was  authorized,  and  almost  immediately 
filed  in  the  court  of  first  instance  at  Santiago  de  Maria,  under  the  au- 
thority of  the  said  alleged  directors.  Promptly  following,  on  October 
19,  five  days  after  the  so-called  meeting  was  held,  a  form  of  adjudica- 
tion of  bankruptcy  was  made  by  the  court,  and  one  Meardi  was  appoint- 
ed receiver  and  custodian  of  the  property  and  effects  of  the  company. 

This  receiver  at  once  possessed  himself  of  all  the  books,  papers, 
vouchers,  and  correspondence  of  the  company  and  its  officers,  and  these 
were  withheld  from  the  American  investors  and  from  their  representa- 
tives. From  that  time  free  access  to  these  papers  was  wholly  denied 
them  until  after  these  proceedings  were  pending  in  Washington,  and 
even  then  large  quantities  of  such  papers  were  never  produced  for  their 
inspection.  Immediately  following  this  proceeding  Ellis  and  Burrell, 
the  sole  representatives  of  the  American  capital  invested  in  the  com- 
pany, were  driven  from  Salvador  in  fear  of  their  lives.     *     *     * 

The  bankruptcy  proceedings  were,  in  our  opinion,  the  result  of  a 
fraudulent  conspiracy,  which  successfully  imposed  upon  the  court  in 
which  the  proceedings  were  taken.  On  February  12,  1899,  in  order  to 
move  in  the  only  proper  legal  manner  for  the  restoration  of  the  com- 
pany's rights  and  its  rehabilitation  by  turning  out  the  conspirators  and 
installing  a  representative  directorate  to  move  in  the  matter,  a  meeting 
of  the  shareholders  was  called,  to  be  held  on  February  28,  to  concert 
measures  for  these  purposes.  The  call  for  the  meeting  was  published 
in  the  official  journal  of  the  Republic  on  February  13,  1899. 

On  the  day  following  the  president  of  the  Republic  issued  an  edict 


Ch.  1)  STATES  127 

closing  the  port  of  El  Triunfo  against  all  importations.  Thus  was  the 
first  step  for  relief  met,  thus  was  the  concession  stricken  down  and 
practically  canceled  and  destroyed,  and  thus  every  effort  of  its  owners 
and  the  American  shareholders  to  extricate  it  from  the  results  of  the 
fraudulent  manipulation  of  the  conspiracy  was  paralyzed. 

The  Salvador  Commercial  Company  presented  to  the  Government  its 
solemn  protest  against  this  decree.  Every  effort  was  made  by  the  rep- 
resentatives of  the  American  shareholders  to  obtain  its  revocation.  All 
were  in  vain,  and  on  May  13  the  executive  granted  a  concession  to  oth- 
ers, citieens  of  Salvador,  of  everything  that  had  been  covered  by  the 
franchise  and  concession  of  October  6,  1894.  The  owners  of  the 
American  interests  presented  their  solemn  protest  to  the  executive 
against  this  grant,  but  no  attention  was  paid  to  it  or  to  them. 

Then  followed  the  appeal  of  the  American  citizens  interested  to  their 
Government  for  its  intervention  for  their  protection  and  for  reclama- 
tion. 

In  view  of  this  history  it  need  hardly  be  said  that  the  evidence  dis- 
closes that  at  the  time  the  proceedings  in  bankruptcy  were  taken  by  the 
false  and  fraudulent  representatives  of  this  company  no  creditor  had 
complained  and  no  creditor  had  a  just  cause  of  complaint  against  it 
for  nonpayment  of  its  debts.  On  the  contrary,  its  complete  financial 
success  and  the  certainty  of  its  prosperous  future  had  been  but  then 
completely  assured. 

It  is  claimed  that  the  United  States  cannot  in  this  case  make  reclama- 
tion for  its  nationals,  the  shareholders  in  El  Triunfo  Company  who  had 
thus  been  despoiled,  for  the  reason  that  such  citizens  as  so  invested 
their  money  in  the  Republic  of  Salvador  must  abide  by  the  laws  of  that 
country,  and  seek  their  remedy,  if  any  they  have,  in  the  courts  of  Sal- 
vador; and,  moreover,  that  before  reclamation  can  be  successfully 
urged  against  Salvador  in  their  behalf  it  must  be  shown  that  such 
citizens  of  the  United  States,  having  appealed  to  the  courts  of  the  Re- 
public, have  been  denied  justice  by  those  courts. 

The  general  proposition  of  international  law  as  thus  stated  is  not  de- 
nied. 

If  the  Government  of  Salvador  had  not  intervened  to  destroy  the 
franchise  and  concession  of  El  Triunfo  Company,  and  thus  despoiled 
the  American  shareholders  of  their  interests  in  that  enterprise,  an  ap- 
peal might  have  been,  as  it  was  evidently  intended  to  be,  made  to  the 
courts  of  Salvador  for  relief  from  the  bankruptcy  proceedings.  The 
first  step  to  that  end  would  be  the  turning  out  of  the  conspiring  direc- 
tors and  the  installment  of  a  proper  directory  by  the  supreme  authority 
of  the  corporation,  the  shareholders'  meeting. 

But  by  the  executive  decrees,  rather  than  by  the  bankruptcy  proceed- 
ings, the  property  rights  of  the  American  citizens  involved  were  ir- 
revocably destroyed. 

Seeking  redress  through  a  called  meeting  of  the  shareholders  of  the 


128  RIGHTS   AND   DUTIES    OF    NATIONS   IN    TIME    OF   PEACE       (Part  1 

company,  the  moment  the  call  was  issued,  and  it  appeared  that  the 
proper  remedy  was  to  be  sought  by  the  corporation  itself,  showing  that 
the  proceedings  by  its  alleged  representative  directors  for  bankruptcy 
were  fraudulent,  and  that  the  bankruptcy  court  had  been  imposed  up- 
on by  their  conspiracy,  in  fraud  of  the  incorporators,  whom  they  false- 
ly pretended  to  represent,  that  moment  the  Government  of  Salvador 
came  to  the  aid  of  the  conspirators  and  by  executive  act  destroyed  the 
only  thing  of  value  worth  retrieving  through  the  courts. 

It  is  not  the  denial  of  justice  by  the  courts  alone  which  may  form 
the  basis  for  reclamation  against  a  nation,  according  to  the  rules  of  in- 
ternational law. 

There  can  be  no  doubt — 

Says  Halleck — 

"that  a  state  is  responsible  for  the  acts  of  its  rulers,  whether  they 
belong  to  the  legislative,  executive,  or  judicial  department  of  the 
government,  so  far  as  the  acts  are  done  in  their  official  capacity." 

The  law  enacted  by  the  Congress  of  Salvador  in  relation  to  foreign- 
ers provides  (article  39)  : 

"Only  in  case  of  the  denial  of  justice,  or  of  a  voluntary  delay  of  its 
administration,  can  foreigners  appeal  to  the  diplomatic  forum,  but  only 
after  having  exhausted  in  vain  the  ordinary  remedies  provided  by  the 
laws  of  the  Republic." 

It  is  apparent  in  this  case  that  an  appeal  to  the  courts  for  relief  from 
the  bankruptcy  would  have  been  in  vain  after  the  acts  of  the  executive 
had  destroyed  the  franchise,  and  that  such  a  proceeding  would  have 
been  a  vain  thing  is  the  sufficient  answer  to  the  argument  based  upon 
this  law  of  Salvador. 

What  would  have  profited  these  despoiled  American  citizens  if  they 
had  successfully  appealed  to  the  courts  for  the  setting  aside  of  the 
bankruptcy  proceedings,  after  the  concession  was  destroyed  by  the 
closing  of  the  port  of  El  Triunfo  and  the  grant  of  the  franchise  to 
strangers  ? 

Said  Mr.  Fish  to  Minister  Foster: 

"Justice  may  as  much  be  denied  when  it  would  be  absurd  to  seek  it  by 
judicial  process  as  if  denied  after  being  so  sought." 

Again,  this  is  not  a  case  of  the  despoliation  of  an  American  citizen 
by  a  private  citizen  of  Salvador,  on  which,  on  appeal  to  the  courts  of 
Salvador,  justice  has  been  denied  the  American  national,  nor  is  it  a 
case  where  the  rules  applying  to  that  class  of  reclamations,  so  nu- 
merous in  international  controversies,  have  to  do.  This  is  a. case  where 
the  parties  are  the  American  nationals  and  the  Government  of  Salva- 
dor itself  as  a  party  to  the  contract;  and  in  this  case,  in  dealing  with 
the  other  party  to  the  contract,  the  Government  of  Salvador  is  charged 
with  having  violated  its  promises  and  agreements  by  destroying  what  it 
agreed  to  give,  what  it  did  give,  and  what  it  was  solemnly  bound  to 
protect. 


Ch.  1)  STATES  *       129 

Some  one  of  the  most  respected  authorities  in  international  law, 
Lewis  Cass,  has  laid  down  the  undoubted  rule  and  its  exception,  as 
broad  as  the  rule,  when  he  says  that — 

"When  citizens  of  the  United  States  go  to  a  foreign  country,  they 
go  witlTarTlmplied  understanding  that  they  are  to  obey  its  laws  and 
subrniFthemselves  in  good  faith  to  its  established  tribunals.  When  they 
dcbusihess  "vvith  its  citizens,  or  make  private  contracts  there,  it  is  not 
to^  expected  that  either  their  own  or  the  foreign  government  is  to  be 
made  a  party  to  this  business  or  these  contracts,  or  will  undertake  to 
determine  any  dispute  to  which  they  give  rise.     *     *     * 

"The  case  is  widely  different  when  the  foreign  government  becomes 
itself  a  party  to  important  contracts,  and  then  not  only  fails  to  fulfill 
them,  but  capriciously  annuls  them,  to  the  great  loss  of  those  who  have 
invested  their  time,  labor,  and  capital  in  their  reliance  upon  its  good 
faith  and  justice." 

In  any  case,  by  the  rule  of  natural  justice  obtaining  universally 
throughout  the  world  wherever  a  legal  system  exists,  the  obligation  of 
parties  to  a  contract  to  appeal  for  judicial  relief  is  reciprocal.  If  the 
Republic  of  Salvador,  a  party  to  the  contract  which  involved  the  fran- 
chise to  El  Triunfo  Company,  had  just  grounds  for  complaint  that 
under  its  organic  law  the  grantees  had,  by  misuser  or  nonuser  of  the 
franchise  granted,  brought  upon  themselves  the  penalty  of  forfeiture 
of  their  rights  under  it,  then  the  course  of  that  Government  should 
have  been  to  have  itself  appealed  to  the  courts  against  the  company  and 
there,  by  the  due  process  of  judicial  proceedings,  involving  notice,  full 
opportunity  to  be  heard,  consideration,  and  solemn  judgment,  have 
invoked  and  secured  the  remedy  sought. 

It  is  abhorrent  to  the  sense  of  justice  to  say  that  one  party  to  a  con- 
tract, whether  such  party  be  a  private  individual,  a  monarch,  or  a  gov- 
ernment of  any  kind,  may  arbitrarily,  without  hearing  and  without  im- 
partial'procedure  of  any  sort,  arrogate  the  right  to  condemn  the  other 
party  to  the  contract,  to  pass  judgment  upon  him  and  his  acts,  and  to 
impose  upon  him  the  extreme  penalty  of  forfeiture  of  all  his  rights  un- 
der it,  including  his  property  and  his  investment  of  capital  made  on  the 
faith  of  that  contract. 

Before  the  arbitrament  of  natural  justice  all  parties  to  a  contract,  as 
to  their  reciprocal  rights  and  their  reciprocal  remedies,  are  of  equal  dig- 
nity and  are  equally  entitled  to  invoke  for  their  redress  and  for  their 
defense  the  hearing  and  the  judgment  of  an  impartial  and  disinterested 
tribunal. 

It  follows  that  the  Salvador  Commercial  Company  and  the  other  na- 
tionals of  the  United  States  who  were  shareholders  in  El  Triunfo  Com- 
pany, as  hereinbefore  named,  are  entitled  to  compensation  for  the  re- 
sult of  the  destruction  of  the  concession  and  for  the  appropriation  of 
such  property  as  belonged  to  that  company,  excepting  such  property  as 
Scott  Int. Law— 9 


130       •RIGHTS   AND    DUTIES    OF   NATIONS   IN    TIME   OF   PEACE         (Part  1 

was  accumulated  and  constructed  under  the  terms  of  the  concession, 
to  be  vested  in  and  owned  by  the  Republic,  to  the  extent  of  the  interests 
of  such  American  citizens  in  said  concession  and  such  property.  *  *  * 

We  have  not  discussed  the  question  of  the  right  of  the  United  States 
under  international  law  to  make  reclamation  for  these  shareholders  in 
El  Triunfo  Company,  a  domestic  corporation  of  Salvador,  for  the  rea- 
son that  the  question  of  such  right  is  fully  settled  by  the  conclusions 
reached  in  the  frequently  cited  and  well-understood  Delagoa  Bay  Rail- 
way Arbitration.*® 

The  particulars  and  iteihs  of  the  damages  found  are  definitely  stated 
in  the  formal  award  and  its  schedule  this  day  signed. 


THE  NORTH  SEA  or  DOGGER  BANK  CASE,*^ 

between 

GREAT  BRITAIN  and  RUSSIA. 

(The   Hague  Commission   of  Inquiry,   1905.     99   British   and   Foreign   State 
Papers,  921,  English  Translation,  2  American  Journal  of  Inter- 
national Law,  929.) 

In  October,  1904,  during  the  Russo-Japanese  war,  the  Admiral  of 
the  Russian  Baltic  fleet,  then  coaling  off  the  coast  of  Norway,  re- 
ceived rumors  from  several  sources  of  the  presence  of  Japanese  tor- 
pedo boats  in  the  vicinity,  and  on  this  account  the  fleet  set  sail  for  the 
Far  East  twenty-four  hours  ahead  of  schedule.  As -the  last  division 
of  the  fleet,  in  immediate  charge  of  the  Admiral,  was  passing  through 
the  North  Sea  in  the  early  hours  of  the  morning  of  October  9,  1904, 
it  came  upon  what  afterwards  proved  to  be  an  Etiglish  fishing  fleet 
from  Hull,  England.  The  Russians,  under  a  misapprehension  that 
the  English  vessels  were  the  Japanese  torpedo  boats,  opened  fire,  with 
the  result  that  one  fishing  boat  was  sunk  and  others  damaged,  Avhile 
two  fishermen  were  killed  and  six  injured. 

In  order  to  prevent  serious  results  from  this  incident,  France  sug- 
gested resort  to  an  international  commission  of  inquiry,  as  provided 
for  in  the  convention  for  the  pacific  settlement  of  international  dis- 
putes, adopted  by  the  Hague  Conference  of  1899.  The  suggestion  was 
accepted  by  Great  Britain  and  Russia,  and  an  agreement  was  signed 
on  November  25,  1904,  which  invested  a  ^commission  composed  of 
admirals  from  the  British,  Russian,  United  States,  French  and  Aus- 
trian navies  with  authority  to  find  the  facts  in  dispute  and  to  fix  re- 
sponsibility. The  commission  held  sessions  at  Paris  from  December 
22,  1904,  to  February  26,  1905,  on  which  date  its  report  was  rendered.*® 

**>  2  Moore,  International  Arbitrations,  1865-1899. 
^^  This  case  is  also  known  as  "The  Hull  Incident." 

*8  This  statement  of  facts  is  taken  from  The  Hague  Court  Reports  (J.  B. 
Scott,  Ed.,  1916)  403. 

Scott  Int.Law 


Ch.  1)  STATES  131 

,  Report  of  the  Commission. 

1.  The  commissioners,  after  a  minute  and  prolonged  examination  of 
the  whole  of  the  facts  brought  to  their  knowledge  in  regard  to  the 
incident  submitted  to  them  for  inquiry  by  the  declaration  of  St.  Peters- 
burg of  the  12th  (25th)  November,  1904,  have  proceeded  to  make, 
in  this  report,  an  analysis  of  these  facts  in  their  logical  sequence. 

By  making  known  the  prevailing  opinion  of  the  commission  on 
each  important  or  decisive  point  of  this  summary,  they  consider  that 
they  have  made  sufficiently  clear  the  causes  and  the  consequences 
of  the  incident  in  question,  as  well  as  the  deductions  which  are  to 
be  drawn  from  them  with  regard  to  the  question  of  responsibil- 
ity.    *     *     * 

9.  Toward  1  o'clock  in  the  morning  of  the  9th  (22d)  October,  1904, 
the  night  was  rather  dark,  a  slight,  low  fog  partly  clouding  the  air. 
The  moon  only  showed  intermittently  between  the  clouds.  A  moderate 
wind  blew  from  the  southeast,  raising  a  long  swell,  which  gave  the 
ships  a  roll  of  5°  on  each  side. 

The  course  followed  by  the  squadron  toward  the  southwest  would 
have  taken  the  last  two  divisions,  as  the  event  proved,  close  past  the 
usual  fishing  ground  *®  of  the  fleet  of  Hull  trawlers,  which  was  com- 
posed of  some  thirty  of  these  small  steamboats,  and  was  spread  over 
an  area  of  several  miles. 

It  appears  from  the  concordant  testimony  of  the  British  witnesses 
that  all  these  boats  carried  their  proper  lights,  and  were  trawling  in 
accordance  with  their  usual  rules,  under  the  direction  of  their  "ad- 
miral," and  in  obedience  to  the  signals  given  by  the  conventional 
rockets. 

10.  Judging  from  the  communications  received  by  wireless  teleg- 
raphy, the  divisions  which  preceded  that  of  Admiral  Rojdestvensky 
across  these  waters  had  signaled  nothing  unusual. 

It  became  known  afterward,  in  particular,  that  Admiral  Folkersam, 
having  been  led  to  pass  round  the  fishing  fleet  on  the  north,  threw  his 
electric  searchlight  on  the  nearest  trawlers  at  close  quarters,  and, 
having  seen  them  to  be  harmless  vessels,  quietly  continued  his  voyage. 

11.  A  short  time  afterwards  the  last  division  of  the  squadron,  led 
by  the  Souvoroff  flying  Admiral  Rojdestvensky's  flag,  arrived  in  its 
turn  close  to  the  spot  where  the  trawlers  were  fishing. 

The  direction  in  which  this  division  was  sailing  led  it  nearly  toward 
the  main  body  of  the  fleet  of  trawlers,  round  which  and  to  the  south 
of  which  it  would  therefore  be  obliged  to  sail,  when  the  attention  of  the 
ofiicers  of  the  watch  on  the  bridges  of  the  Souvoroff  was  attracted  by  a 
green  rocket,  which  put  them  on  their  guard.  This  rocket,  sent  up  by 
the  "admiral"  of  the  fishing  fleet,  indicated  in  reality,  according  to  reg- 
ulation, that  the  trawlers  were  to  trawl  on  the  starboard  tack. 

*»  Dogger  Bank. 


132        BIGHTS   AND   DUTIES    OF   NATIONS   IN   TIME   OF   PEACE        (Part  1 

Almost  immediately  after  this  first  alarm,  and  as  showH  by  the 
e\'idence,  the  lookout  men.  who,  from  the  bridges  of  the  Scuvoroff, 
were  scanning  the  horizon  with  their  night  glasses,  discovered  "on 
the  crest  of  the  waves  on  the  starboard  bow,  at  an  approxin:;ate  dis- 
tance of  eighteen  to  twent}'  cables,"  a  vessel  which  aroused  their 
suspicions  because  they  saw  no  light,  and  because  she  appeared  to  be 
bearing  doA\-n  upon  them.  ^^ 

When  the  suspicious-looking  vessel  was  shown  \ip  by  thfe  search- 
light, the  lookout  men  thought  they  recognized  a  torpedo  boat  pro- 
ceeding at  great  speed. 

It  was  on  account  of  these  appearances  that  Admiral  RojSestvensky 
ordered  fire  to  be  opened  on  this  unknown  vessel. 

The  majority*  of  the  commissioners  express  the  opinion, .on  this  sub- 
ject, that  the  responsibility  for  this  action  and  the  results  of  the 
fire  to  which  the  fishing  fleet  was  exposed  are  to  be  attributed  to  Admiral 
Rojde=t\"ensky. 

12.  Almost  immediately  after  fire  was  opened  to  starboard,  the 
•Souvoroff  caught  sight  of  a  little  boat  on  her  bow  barring  the  way. 
and  was  obliged  to  turn  sharply  to  the  left  to  avoid  running  it  down. 
This  boat,  however,  on  being  lit  up  by  the  searchlight,  was  seen  to  be 
a  trawler. 

To  prevent  the  fire  of  the  ships  being  directed  against  this  harmless 
vessel,  the  searchlight  was  immediately  throwm  up  at  an  angle  of  45". 

The  admiral  then  made  the  signal  to  the  squadron  "not  to  fire  on  the 
trawlers." 

But  at  the  same  time  that  the  searchlight  had  lit  up  this  fishing  vessel, 
according  to  the  evidence  of  witnesses,  the  lookout  men  on  board  the 
Souvorofi  perceived  to  port  another  vessel,  which  appeared  suspicious 
from  the  fact  of  its  presenting  the  same  features  as  were  presented  by 
the  object  of  their  fire  to  starboard. 

Fire  was  immediately  opened  on  this  second  object,  and  was,  there- 
fore, being  kept  up  on  both  sides  of  the  ship,  the  line  of  ships  having 
resumed  their  original  course  by  a  correcting  movement  without  chang- 
ing speed. 

13.  According  to  the  standing  orders  of  the  fleet,  the  Admiral  in- 
dicated the  objects  against  which  the  fire  should  be  directed  by  throw- 
ing his  searchlight  upon  them ;  but  as  each  vessel  swept  the  horizon  in 
every  direction  with  her  own  searchlights  to  avoid  being  taken  by  sur- 
prise, it  was  difficult  to  prevent  confusion. 

The  fire,  which  lasted  from  ten  to  t%velve  minutes,  caused  great 
loss  to  the  trawlers.  Two  men  were  killed  and  six  others  wounded : 
the  Crane  sank ;  the  Snipe,  the  Mino,  the  Moulmein,  the  Gull,  and  the 
^Majestic  were  more  or  less  damaged. 

On  the  other  hand,  the  cruiser  Aurora  was  hit  by  several  shots. 

The  majority  of  the  commissioners  observe  that  they  have  not 
sufficiently  precise  details  to  determine  what  was  the  object  fired  on 


Ch.l)  STATES  133 

by  the  vessels ;  but  the  commissioners  recognize  unanimously  that  the 
vessels  of  the  fishing  fleet  did  not  commit  any  hostile  act ;  and,  the 
majority  of  the  commissioners  being  of  opinion  that  there  were  no  tor- 
pedo boats  either  among  the  trawlers  nor  anywhere  near,  the  opening 
of  the  fire  by  Admiral  Rojdestvensky  was  not  justifiable. 

The  Russian  cctomissioner,  not  considering  himself  justified  in 
sharing  this  opinion,  expresses  the  conviction  that  it  was  precisely  the 
suspicious-lookihg  vessels  approaching  the  squadron  with  hostile  in- 
tent whith  provoked  the  fire.®"     *     *     * 

'50  rjiie  Russian  government  accepted  the  facts  as  found  by  the  Commission, 
assumed  responsibility  for  its  admiral's  action,  and  paid  damages  to  Great 
Britain  amounting  approximately  to  $300,000.  The  Hague  Court  Reports 
(J.  B.  Scott,  Ed.,  1916)  403. 


134  EIGHTS   AND   DUTIES   OF  NATIONS   IN   TIME   OF  PEACE      (Part  1 

CHAPTER  II 
NATIONALITY 


SECTION  1.— ALLEGIANCE 


CASE  OF  ^NEAS  MACDONALD,  alias  ANGUS  MAC- 
DONALD. 

(King's  Bench,  1747.    Foster's  Crown  Law,  59.) 

In  the, year  1747,  a  bill  of  indictment  was  found  against  him,  under 
the  special  commission  in  Surry,  for  the  share  he  had  in  the  late  rebel- 
lion. The  indictment  ran  in  the  same  form  as  those  against  the  other 
prisoners,  without  any  averment  that  he  was  in  custody  before  the 
1st  of  January,  1746.  But  the  counsel  for  the  Crown  were  aware  of 
the  exception  taken  in  the  case  of  Mr.  Townly  and  others,  and  that 
since  the  whole  proceeding  against  the  prisoner  was  subsequent  to 
January,  1746,  the  answer  then  given  would  not  serve  the  present  case. 
That  bill  was  therefore  withdrawn  before  the  prisoner  pleaded  to  it ; 
and  a  new  bill  concluding  with  an  averment  that  he  was  apprehended 
and  in  custody  before  the  1st  of  January,  1746,  was  preferred  and 
found  against  him.  On  that  bill  he  was  arraigned  in  July,  1747,  and 
his  trial  came  on  the  10th  of  December  following. 

The  overt  acts  charged  in  the  indictment  were  sufficiently  proved: 
and  also  that  the  prisoner  was  apprehended  and  in  custody  before  the 
1st  of  January,  1746. 

The  counsel  for  the  prisoner  insisted  that  he  was  born  in  the 
dominions  of  the  French  King,  and  on  this  point  they  put  his  defence. 

But  apprehending  that  the  weight  of  the  evidence  might  be  against 
them,  as  indeed  it  was,  with  regard  to  the  place  of  the  prisoner's  birth, 
they  endeavored  to  captivate  the  jury  and  bystanders,  by  representing 
the  great  hardship  of  a  prosecution  of  this  kind  against  a  person,  who, 
admitting  him  to  be  a  native  of  Great  Britain,  had  received  his  educa- 
tion from  his  early  infancy  in  France;  and  spent  his  riper  years  in  a 
profitable  employment  in  that  kingdom,  where  all  his  hopes  centered : 
and  speaking  of  the  doctrine  of  natural  allegiance,  they  represented  it 
as  a  slavish  principle,  not  likely  to  prevail  in  these  times;  especially 
as  it  seemed  to  derogate  from  the  principles  of  the  revolution. 

Here  the  court  interposed ;  and  declared,  that  the  mentioning  the 
case  of  the  revolution  as  a  case  any  way  similar  to  that  of  the  prisoner, 
supposing  him  to  have  been  born  in  Great  Britain,  can  serve  no  pur- 
pose but  to  bring  an  odium  on  that  great  and  glorious  transaction. 


Ch.  2)  NATIONALITY  135 

It  never  was  doubted  that  a  subject-born,  taking  a  commission  from 
a  foreign  prince  and  committing  high  treason,  may  be  punished  as 
a  subject  for  that  treason,  notwithstanding  his  foreign  commission. 
It  was  so  ruled  in  Dr.  Storey's  case :  and  that  case  was  never  yet 
denied  to  be  law.  It  is  not  in  the  power  of  any  private  subject  to 
shake  off  his  allegiance,  and  to  transfer  it  to  a  foreign  prince.  Nor  is 
it  in  the  power  of  any  foreign  prince  by  naturalizing  or  employing  a 
subject  of  Great  Britain,  to  dissolve  the  bond  of  allegiance  between 
that  subject  and  the  Crown. 

However,  as  the  prisoner's  counsel  had  mentioned  his  French  com- 
mission as  a  circumstance  tending  in  their  opinion  to  prove  his  birth 
in  France,  the  court  permitted  it  to  be  read,  the  Attorney-General  con- 
senting. It  was  dated,  the  1st  of  June,  1745,  and  appointed  the  pris- 
oner commissary  of  the  troops  of  France,  which  were  then  intended  to 
embark  for  Scotland. 

The  court,  with  the  consent  of  the  counsel  for  the  Crown,  permitted 
the  cartel  between  France  and  Great  Britain  for  the  exchange  or 
ransom  of  prisoners  likewise  to  be  read ;  and  observed,  that  as  it  relat- 
eth  barely  to  the  exchange  or  ransom  of  prisoners  of  war,  it  can 
never  extend  to  the  case  of  the  prisoner  at  the  bar,  supposing  him  to  be 
a  subject-born;  because  by  the  laws  of  all  nations,  subjects  taken  in 
arms  against  their  lawful  prince,  are  not  considered  as  prisoners  of 
war,  but  as  rebels;  and  are  liable  to  the  punishment  ordinarily  in- 
flicted on  rebels. 

Lord  Chief  Justice  htt,  in  his  direction  to  the  jury,  told  them,  that 
the  overt  acts  laid  in  the  indictment  being  fully  proved,  and  not  denied 
by  the  prisoner,  or  rather  admitted  by  his  defence,  the  only  fact  they 
had  to  try  was,  whether  he  was  a  native  of  Great  Britain ;  if  so,  he  must 
be  found  guilty.  And  as  to  that  point,  he  said  the  presumption  in  all 
cases  of  this  kind  is  against  the  prisoner;  and  the  proof  of  his  birth 
out  of  the  King's  dominions,  where  the  prisoner  putteth  his  defence  on 
that  issue,  lieth  upon  him.  But  whether  the  evidence  that  had  been 
given  in  the  present  case  (which  he  summed  up  very  minutely),  did  or 
did  not  amount  to  such  proof,  he  left  to  their  consideration. 

The  jury  found  him  guilty,  but  recommended  him  to  mercy.  He 
received  sentence  of  death  as  in  cases  of  high  treason;  but  was  after- 
ward pardoned  upon  the  conditions  mentioned  below.^ 

1  Banishment. 

In  The  King  v.  Lynch,  L.  E.  [19031  1  K.  B.  444,  45S,  It  appeared  that  one 
Arthur  Lynch,  born  in  Australia  of  Irish  parents,  went  through  the  process  of 
naturalization  in  the  South  African  Republic,  in  the  year  1900,  when  Great 
Britain,  whose  allegiance  he  forswore,  was  at  open  war  with  that  country.  It 
was  held  by  the  Court  of  King's  Bench  that,  notwithstanding  the  Naturaliza- 
tion Act  of  1870,  a  British  subject  committed  treason  in  becoming  a  citizen 
or  a  subject  of  a  country  with  which  Great  Britain  was  at  war. 

Lord  Alverstone,  Chief  Justice,  said  on  this  point: 

"In  my  opinion  there  is  nothing  in  the  act  of  1870  to  justify  the  contention 
that  an  act  of  treason  can  give  any  rights  to  any  person  whatever.  If  it 
was  the  intention  of  the  Legislature  to  produce  so  strange  a  result,  that  in 


136  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE      (Part  1 

DE  JAGER,  Appellant,  v.  ATTORNEY-GENE RAI.  OF  NATAL, 

Respondent. 

(Privy  Council.     [1907]   L.  R.  App.  Cas.  326.) 

The  petitioner  was  a  burgher  of  the  late  South  African  Republic 
who,  for  ten  years  previous  to  1899  had  lived  in  Wachsbank  in  Natal. 
After  the  outbreak  of  the  war  in  1899  he  continued  to  reside  peace- 
fully in  Natal.  After  the  military  occupation  of  that  part  of  the  colony 
by  the  Boer  forces  in  the  fall  of  1899,  whereby  he  lost  the  effectual 
protection  of  Her  Majesty,  the  petitioner  alleged  that  he  was  then 
compellable  to  join,  and  did  actually  join,  the  invading  army  and  that 
he  served  as  commandant  and  commissioner  and  justice  of  the  peace. 
In  1901  he  was  adjudged  in  a  special  court  of  the  colony  of  Natal 
guilty  of  high  treason  and  sentenced  to  five  years'  imprisonment  and 
to  pay  a  fine  of  iSOOO.  This  was  a  petition  for  special  leave  to  appeal 
from  this  judgment. 

It  was  contended  that  the  petitioner  owed  only  a  local  and  temporary 
allegiance  to  Her  Majesty  whilst  he  was  a  resident  in  Natal  and  was 
actually  enjoying  Her  Majesty's  protection.  The  obligation  ceased  to 
be  binding  upon  him  when  he  was  deprived  of  that  protection,  and 
whilst,  owing  to  the  successful  military  occupation  of  the  territory 
where  he  .resided  by  the  Boer  forces,  he  was  deprived  of  that  pro- 
tection, and  was  de  facto  under  the  government  and  control  of  the 
South  African  Republic.  Aid  and  assistance  given  to  the  Boer  forces 
by  the  petitioner  under  those  circumstances  were  not  treasonable,  but 
acts  which  he  was  legally  compellable  to  perform.^ 

The  judgment  of  their  Lordships  waSxdelivered  by 

Lord  LoREBURN,  L.  C.  The  petitioner  Lodewyk  Johannes  De  Jager 
was  adjudged  guilty  of  high  treason  by  the  special  Court  constituted 
by  Act  No.  XIV  of  1900  of  the  Colony  of  Natal,  and  now  seeks 
special  leave  to  appeal  to  His  Majesty  in  Council  from  that  judgment 
and  the  sentence  which  followed.  The  circumstances  and  the  ques- 
tions of  law  raised  are  fully  set  out  in  the  petition  and  need  not  be  re- 
peated here.  Their  Lordships  have  not  to  consider  any  facts  or 
features  of  this  case  except  the  points  of  law  upon  which  Sir  Robert 
Finlay  insisted. 

It  is  old  law  that  an  alien  resident  within  British  territory  owes 
allegiance  to  the  Crown,  and  may  be  indicted  for  high  treason,  though 

tention  must  be  found  expressed  in  clear  and  explicit  language,  and  not  be 
inferred  from  general  language  designed  to  serve  another  and  useful  pui*pose. 
Whatever  a  declaration  of  war  may  or  may  not  do,  it  at  any  rate  prevents 
British  subjects  from  making  arrangements  with  the  King's  enemies,  when 
such  arrangements  would  constitute  crimes  against  the  law  of  the  country  to 
which  they  owe  allegiance." 

In  re  The  Stepney  Election  Petition,  L.  R.  17  Q.  B.  Div.  54  (1886),  the 
effect  of  the  separation  of  Hanover  from  the  Crown  of  England  upon  the 
citizenship  of  Hanoverians  was  discussed. 

-  The  statement  of  facts  is  condensed. 


Ch.  2)  NATIONALITY  137 

not  a  subject.  Some  authorities  affirm  that  this  duty  and  liability  arise 
from  the  fact  that  while  in  British  territory  he  receives  the  King's 
protection.  Hence  Sir  R.  Finlay  argued  that  when  the  protection 
ceased  its  counterpart  ceased  also,  and  that  as  the  British  forces 
evacuated  Waschbank  on  October  21,  1899,  the  petitioner  was  lawfully 
entitled  to  assist  the  invaders  on  and  after  October  24  without  in- 
curring the  penalty  of  high  treason. 

Their  Lordships  are  of  opinion  that  there  is  no  ground  for  this 
contention.  The  protection  of  a  state  does  not  cease  merely  because 
the  State  forces,  for  'strategical  or  other  reasons,  are  temporarily  with- 
drawn, so  that  the  enemy  for  the  time  exercises  the  rights  of  an  army 
in  occupation.  On  the  contrary,  when  such  territory  reverts  to  the 
control  of  its  rightful  Sovereign  wrongs  done  during  the  foreign  oc- 
cupation are  cognizable  by  the  ordinary  Courts.  The  protection  of  the 
Sovereign  has  not  ceased.  It  is  continuous,  though  the  actual  redress 
of  what  has  been  done  amiss  may  be  necessarily  postponed  until  the 
enemy  forces  have  been  expelled.  Their  Lordships  consider  that  the 
duty  of  a  resident  alien  is  so  to  act  that  the  Crown  shall  not  be  harmed 
by  reason  o'f  its  having  admitted  him  as  a  resident.  He  is  not  to  take 
advantage  of  the  hospitality  extended  to  him  against  the  Sovereign 
who  extended  it.  In  modern  times  great  numbers  of  aliens  reside  in 
this  and  in  most  countries,  and  in  modern  usage  it  is  regarded  as  a 
hardship  if  they  are  compelled  to  quit,  as  they  rarely  are,  even  in  the 
event  of  war  between  their  own  Sovereign  and  the  country  where  they 
so  reside.  It  would  be  intolerable,  and  must  inevitably  end  in  a  re- 
striction of  the  international  facilities  now  universally  granted,  if,  as 
soon  as  an  enemy  made  good  his  military  occupation  of  a  particular 
district,  those  who  had  till  then  lived  there  peacefully  as  aliens  could 
with  impunity  take  up  arms  for  the  invaders.  A  small  invading  force 
might  thus  be  swollen  into  a  considerable  army,  while  the  risks  of 
transport  (which  in  the  case  of  oversea  expeditions  are  the  main  risks 
of  invasion)  would  be  entirely  evaded  by  those  who,  instead  of  em- 
barking from  their  own  country,  awaited  the  expedition  under  the 
protection  of  the  country  against  which  it  was  directed.  These  con- 
siderations would  not  justify  a  British  Court  in  deciding  any  case  con- 
trary to  the  law,  but  they  offer  an  illustration  of  consequences  which 
would  follow  if  the  law  were  as  the  petitioner  maintains.  There  is  no 
authority  which  compels  their  Lordships  to  arrive  at  so  strange  a  con- 
clusion. The  questions  raised  are,  no  doubt,  of  general  importance, 
but  their  Lordships,  after  hearing  the  arguments  of  counsel  in  sup- 
port of  the  petition,  do  not  consider  the  case  to  be  attended  with  doubt, 
and  they  will  therefore  humbly  advise  His  Majesty  to  dismiss  this 
petition. 

There  will  be  no  order  as  to  costs.' 

8  In  Nicholas  Janis  v.  United  States  et  al.,  32  Ct.  CI.  407,  410  (1897),  Nott, 
C.  J.,  tlius  stated  tlie  doctrine  and  the  policy  of  the  United  States: 

"The  general  principle  is  that  an  alien  while  domiciled  in  a  country  owes 


138  RIGHTS  AND  DUTIES   OF   NATIONS  IN   TIME   OF   PEACE      (Part  1 

SECTION  2.— NATURALIZATION 


UNITED  STATES  v.  WONG  KIM  ARK. 

(Supreme  Court  of  the  United  States.  1898.     169  U.  S.  649,  18  Sup,  Ct.  456, 

42  L.  Ed.  890.) 

This  was  a  writ  of  habeas  corpus,  issued  October  2,  1895,  by  the  Dis- 
trict Court  of  the  United  States  for  the  Northern  District  of  CaHfor- 
nia,  to  the  collector  of  customs  at  the  port  of  San  Francisco,  in  behalf 
of  Wong  Kim  Ark,  who  alleged  that  he  was  a  citizen  of  the  United 
States,  of  more  than  twenty-one  years  of  age,  and  was  born  at  San 
Francisco  in  1873  of  parents  of  Chinese  descent  and  subjects  of  the 
Emperor  of  China,  but  domiciled  residents  at  San  Francisco,  and  that, 
on  his  return  to  the  United  States  on  the  steamship  Coptic  in  August, 
1895,  from  a  temporary  visit  to  China,  he  applied  to  said  collector  of 
customs  for  permission  to  land,  and  was  by  the  collector  refused  such 
permission,  and  was  restrained  of  his  liberty  by  the  collector,  and  by 
the  general  manager  of  the  steamship  company  acting  under  his  direc- 
tion, in  violation  of  the  Constitution  and  laws  of  the  United  States,  not 
by  virtue  of  any  judicial  order  or  proceeding,  but  solely  upon  the  pre- 
tence that  he  was  not  a  citizen  of  the  United  States. 

At  the  hearing,  the  District  Attorney  of  the  United  States  was  per- 
mitted to  intervene  in  behalf  of  the  United  States  in  opposition  to 
the  writ.     *     *     * 

The  court  ordered  Wong  Kim  Ark  to  be  discharged,  upon  the  ground 
that  he  was  a  citizen  of  the  United  States,  71  Fed.  382.  The  United 
States  appealed  to  this  court,  and  the  appellee  was  admitted  to  bail 
pending  the  appeal. 

Mr.  Justice  Gray,  after  stating  the  case,  delivered  the  opinion  of  the 
court.* 

The  facts  of  this  case,  as  agreed  by  the  parties,  are  as  follows: 
Wong  Kim  Ark  was  born  in  1873  in  the  city  of  San  Francisco,  in  the 
State  of  California  and  United  States  of  America,  and  was  and  is  a 

to  it  a  local  and  temporary  allegiance,  which  continues  during  the  period  of 
his  residence,  in  return  for  the  protection  which  he  receives.  The  Supreme 
Court  carried  this  so  far  as  to  hold  that  for  a  breach  of  this  temporary  al- 
legiance an  alien  domiciled  within  the  United  States  during  the  Civil  War 
became  a  participator  in  the  personal  responsibilities  of  the  time,  and  there- 
fore entitled,  like  a  citizen,  to  the  benefits  of  the  proclamation  of  general  am- 
nesty. Carlisle  and  Henderson's  Case,  16  Wall.  147,  21  L.  Ed.  426  [1872],  So, 
too,  it  has  been  held  by  this  court  that  where  American  merchants  carried 
their  goods  into  places  under  the  protection  of  a  foreign  power,  the  subsequent 
seizure  of  their  goods  by  a  belligerent  was  a  wrong  which  the  United  States 
were  not  bound  to  redress.     Leghorn  Seizures,  27  Ct.  CI.  224  [1892]," 

*  The  statement  of  facts  is  abridged  and  part  of  the  opinion  of  Mr.  Justice 
Gray  and  the  dissenting  opinion  of  Mr.  Justice  Fuller  are  omitted. 


Ch.  2)  NATIONALITY  139 

laborer.  His  father  and  mother  were  persons  of  Chinese  descent,  and 
subjects  of  the  Emperor  of  China ;  they  were  at  the  time  of  his  birth 
domiciled  residents  of  the  United  States,  having  previously  established 
and  still  enjoying  a  permanent  domicil  and  residence  therein  at  San 
Francisco;  they  continued  to  reside  and  remain  in  the  United  States 
until  1890,  when  they  departed  for  China ;  and  during  all  the  time  of 
their  residence  in  the  United  States  they  were  engaged  in  business, 
and  were  never  employed  in  any  diplomatic  or  official  capacity  under 
the  Emperor  of  China.  Wong  Kim  Ark,  ever  since  his  birth,  has  had 
but  one  residence,  to  wit,  in  California,  within  the  United  States,  and 
has  there  resided,  claiming  to  be  a  citizen  of  the  United  States,  and  has 
never  lost  or  changed  that  residence,  or  gained  or  acquired  another 
residence ;  and  neither  he,  nor  his  parents  acting  for  him,  ever  renounc- 
ed his  allegiance  to  the  United  States,  or  did  or  committed  any  act  or 
thing  to  exclude  him  therefrom.  In  1890  (when  he  must  have  been 
about  seventeen  years  of  age)  he  departed  for  China  on  a  temporary 
visit  and  with  the  intention  of  returning  to  the  United  States,  and  did 
return  thereto  by  sea  in  the  same  year,  and  was  permitted  by  the  collec- 
tor of  customs  to  enter  the  United  States,  upon  the  sole  ground  that  he 
was  a  native-born  citizen  of  the  United  States.  After  such  return,  he 
remained  in  the  United  States,  claiming  to  be  a  citizen  thereof,  until 
1894,  when  he  (being  about  twenty-one  years  of  age,  but  whether  a  lit- 
tle above  or  a  little  under  that  age  does  not  appear)  again  departed  for 
China  on  a  temporary  visit  and  with  the  intention  of  returning  to  the 
United  States;  and  he  did  return  thereto  by  sea  in  August,  1895,  and 
applied  to  the  collector  of  customs  for  permission  to  land ;  and  was  de- 
nied such  permission,  upon  the  sole  ground  that  he  was  not  a  citizen  of 
the  United  States. 

It  is  conceded  that,  if  he  is  a  citizen  of  the  United  States,  the  acts  of 
Congress,  known  as  the  Chinese  Exclusion  Acts,  prohibiting  persons  of 
the  Chinese,  race,  and  especially  Chinese  laborers,  from  coming  into  the 
United  States,  do  not  and  cannot  apply  to  him. 

The  question  presented  by  the  record  is  whether  a  child  born  in  the 
United  States,  of  parents  of  Chinese  descent,  who,  at  the  time  of  his 
birth,  are  subjects  of  the  Emperor  of  China,  but  have  a  permanent 
domicil  and  residence  in  the  United  States,  and  are  there  carrying  on 
business,  and  are  not  employed  in  any  diplomatic  or  official  capacity 
under  the  Emperor  of  China,  becomes  at  the  time  of  his  birth  a  citizen 
of  the  United  States,  by  virtue  of  the  first  clause  of  the  Fourteenth 
Amendment  of  the  Constitution :  "All  persons  born  or  naturalized  in 
the  United  States,  and  subject  to  the  jurisdiction  thereof,  are  citizens 
of  the  United  States  and  of  the  State  wherein  they  reside." 

I.  In  construing  any  act  of  legislation,  whether  a  statute  enacted  by 
the  legislature,  or  a  constitution  established  by  the  people  as  the  su- 
preme law  of  the  land,  regard  is  to  be  had,  not  only  to  all  parts  of  the 
act  itself,  and  of  any  former  act  of  tlie  same  law-making  power,  of 


140  RIGHTS  AXD   DUTIES   OF  NATIONS   IN  TDJE   OF   PEACE         (Part  1 

which  the  act  in  question  is  an  amendment;  but  also  to  the  condition, 
and  to  the  history,  of  the  law  as  previously  existing,  and  in  the  light  of 
which  the  new  act  must  be  read  and  interpreted. 

The  Constitution  of  the  United  States,  as  originally  adopted,  uses  the 
words  '"citizen  of  the  United  States,"  and  "natural -bom  citizen  of  the 
United  States.''  By  the  original  Constitution,  ever>-  representative  in 
Congress  is  required  to  have  been  "seven  years  a  citizen  of  the  United 
States."'  and  every  Senator  to  have  been  "'nine  years  a  citizen  of  the 
United  Stares;"'  and  "no  person  except  a  natural-bom  citizen,  or  a 
dtizei  of  the  United  States  at  the  time  of  the  adoption  of  this  Consti- 
tution, shall  be  eligible  to  the  office  of  President.'"  The  Fourteenth 
Article  of  Amendment,  besides  declaring  that  "'all  persons  bom  or 
naturalized  in  the  United  States,  and  subject  to  the  jurisdiction  there- 
of, are  citizens  of  the  United  States  and  of  the  State  wherein  they  re- 
side,'" also  declares  that  "no  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United 
Siates ;  nor  shall  any  State  deprive  any  person  of  Hf e.  liberty  or  prop- 
erty, without  due  process  of  law ;  nor  deny  to  any  person  'n-ithin  its  jur- 
isdiction the  equal  protection  of  the  laws."  And  the  Fifteenth  Article 
jf  Amendment  declares  that  "'the  right  of  citizens  of  the  United  States 
to  vote  shall  not  be  denied  or  abridged  by  the  United  States,  or  by  any 
State,  on  account  of  race,  color  or  previous  condition  of  servitude." 

The  Constitution  no'vhere  defines  the  meaning  of  these  words,  ei- 
ther by  way  of  inclusion  or  of  exclusion,  except  in  so  far  as  this  is 
done  by  the  affirmative  declaration  that  "aU  persons  bom  or  natural- 
ized in  the  United  States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States."  In  this,  as  in  other  respects,  it  must  be 
interpreted  in  the  light  of  the  common  law.  the  principles  and  histor}- 
of  which  were  familiarly  known  to  the  framers  of  the  Constitution. 
Minor  v.  Happersett  2l'Wall.  162.  22  L.  Ed.  627:  Ex  parte  Wilson, 
114  U.  S.  417.  422.  5  Sup.  Cl  935.  29  L.  Ed.  S9:  Bovd  v.  United 
States.  116  U.  S.  616.  624.  625.  6  Sup.  Ct  524.  29  L.  Ed.  746:  Smith  v. 
Alabama,  124  U.  S.  465,  8  Sup.  Ct.  564,  31  L.  Ed.  508.  The  language 
of  the  Constifation.  as  has  been  well  said,  could  not  be  understood 
without  reference  to  the  common  law.  1  Kent.  Com.  336 ;  Bradlev,  T., 
in  Moor^  v.  United  States,  91  U.  S.  270,  274,  23  L.  Ed.  346.     *     *  '  * 

n.  The  fundamental  principle  of  the  common  law  with  regard  to 
Engli^  nationahty  was  birth  witiiin  the  allegiance,  also  called  "li- 
gealty,"  "obedience,"  "fai:h"  :-  ■^-"-er,"  of  the  King.  The  principle 
embraced  all  pei^ons  bcrr.  :  r^  r  King's  allegiance  and  subject  to 
his  protection.     Such  ai:e§:7  :  protection  were  mutual — as  ex- 

pressed in  the  maxim,  prott  "  ".:  subjectionem,  et  subjectio  pro- 

tecrionem — ^and  were  not  restricted  to  natural-bom  subjects  and  natu- 
ralized subjects,  or  to  those  who  had  taken  an  oath  of  allegiance;  but 
were  predicable  of  aliens  in  amity,  so  long  as  they  were  within  the  king- 
dom.   C'r    i'z"    :     r    '.  Enzland.  of  such  aliens,  were  therefore  natu- 


Ch.  2)  NATIONALITY  141 

ral-born  subjects.  But  the  children,  born  within  the  realm,  of  foreign 
ambassadors,  or  the  children  of  alien  enemies,  born  during  and  within 
their  hostile  occupation  of  part  of  the  King's  dominions,  were  not 
natural-born  subjects,  because  not  born  wuthin  the  allegiance,  the 
obedience,  or  the  power,  or,  as  would  be  said  at  this  day,  within  the 
jurisdiction  of  the  King. 

This  fundamental  principle,  with  these  qualifications  or  explanations 
of  it,  was  clearly  though  quaintly,  stated  in  the  leading  case,  known  as 
Calvin's  Case,  or  the  Case  of  the  Postnati,  decided  in  1608,  after  a 
hearing  in  the  Exchequer  Chamber  before  the  Lord  Chancellor  and  all 
the  Judges  of  England,  and  reported  by  Lord  Coke  and  by  Lord  Elles- 
mere.  Calvin's  Case,  7  Rep.  1,  4b-6a,  18a,  18b;  Ellesmere  on  Post- 
nati, 62-64;  s.  c,  2  Howell's  State  Trials,  559,  607,  613-617,  639,  640, 
659.  679. 

The  English  authorities  ever  since  are  to  the  like  effect.  Co.  Lit.  8a, 
128b;  Lord  Hale,  in  Hargrave's  Law  Tracts,  210,  and  in  1  Hale,  P. 
C.  61,  62;  1  Bl.  Com.  366,  369,  370,  374;  4  Bl.  Com.  74,  92;  Lord 
Kenyon,  in  Doe  v.  Jones,  4  T.  R.  300,  308 ;  Cockbum  on  Nationality', 
7;  'Dicey,  Conflict  of  Laws,  pp.  173-177,  741.     *     *     * 

It  thus  clearly  appears  that  by  the  law  of  England  for  the  last  tliree 
centuries,  beginning  before  the  settlement  of  this  country,  and  continu- 
ing to  the  present  day,  aliens,  while  residing  in  the  dominions  pos- 
sessed by  the  Crown  of  England,  were  within  the  allegiance,  the  obe- 
dience, the  faith  or  loyalty,  the  protection,  the  power,  the  jurisdiction, 
of  the  English  Sovereign;  and  therefore  every  child  bom  in  England 
of  alien  parents  was  a  natural-bom  subject,  unless  the  child  of  an 
ambassador  or  other  diplomatic  agent  of  a  foreign  State,  or  of  an  alien 
enemy  in  hostile  occupation  of  the  place  where  the  child  was  bom. 

in.  The  same  rule  was  in  force  in  all  the  English  Colonies  upon  this 
continent  down  to  the  time  of  the  Declaration  of  Independence,  and 
in  the  United  States  afterwards,  and  continued  to  prevail  under  the 
Constitution  as  originally  established.     *     *     * 

IV.  It  was  contended  by  one  of  the  learned  counsel  for  the  United 
States  that  the  rule  of  the  Roman  law,  by  which  the  citizenship  of  the 
child  followed  that  of  the  parent,  was  the  true  rule  of  international 
law,  as  now  recognized  in  most  civilized  countries,  and  had  superseded 
the  rule  of  the  common  law,  depending  on  birth  within  the  realm,  origi- 
nally founded  on  feudal  considerations. 

But  at  the  time  of  the  adoption  of  the  Constitution  of  the  United 
States  in  1789,  and  long  before,  it  would  seem  to  have  been  the  rule  in 
Europe  generally,  as  it  certainly  was  in  France,  that,  as  said  by  Pothier. 
"citizens,  true  and  native-born  citizens,  are  those  who  are  born  within 
the  extent  of  the  dominion  of  France."  and  ''mere  birth  within  the 
realm  gives  the  rights  of  a  native-bom  citizen,  independently  of  the 
origin  of  the  father  or  mother,  and  of  their  domicil."     *     *     * 

So  far  as  we  are  informed,  there  is  no  authority,  legislative,  execu- 


J  42  RIGHTS   AXD   DUTIES   OF  NATIONS   IN  TIME   OF  PEACE       (Parti' 

tive  or  judicial,  in  England  or  America,  which  maintains  or  intimates 
that  the  statutes  (whether  considered  as  declarator}',  or  as  merely  pro- 
spective), conferring  citizenship  on  foreign-born  children  of  citizens, 
have  superseded  or  restricted,  in  any  respect,  the  established  rule  of 
citizenship  by  birth  within  the  dominion.     *     *     * 

\'.  In  the  fore  front,  both  of  the  Fourteenth  Amendment  of  the 
Constitution,  and  of  the  Civil  Rights  Act  of  1866,  the  fundamental 
principle  of  citizenship  by  birth  within  the  dominion  was  reaffirmed 
in  the  most  explicit  and  comprehensive  terms. 

The  Civil  Rights  Act,  passed  at  the  first  session  of  the  Thirt>--ninth 
Congress,  began  by  enacting  that  "all  persons  born  in  the  United  States, 
and  not  subject  to  any  foreign  power,  excluding  Indians  not  taxed, 
are  hereby  declared  to  be  citizens  of  the  United  States;  and  such  citi- 
zens, of  every  race  and  color,  without  regard  to  any  previous  condition 
of  slaverv'  or  involuntary-  servitude,  except  as  a  punishment  for  crime 
whereof  the  party  shall  have  been  duly  convicted,  shall  have  the  same 
right,  in  ever}^  State  and  Territory  in  the  United  States,  to  make  and 
enforce  contracts,  to  sue,  be  parties  and  give  evidence,  to  inherit,  pur- 
chase, lease,  sell,  hold  and  convey  real  and  personal  propert}-,  and  to 
full  and  equal  benefit  of  all  laws  and  proceedings  for  the  security  of 
person  and  property,  as  is  enjoyed  by  white  citizens,  and  shall  be  sub- 
ject to  like  punishment,  pains  and  penalties,  and  to  none  other,  any  law, 
statute,  ordinance,  regulation  or  custom,  to  the  contrary  notwithstand- 
ing."   Act  of  April  9,  1866,  c.  31,  §  1,  14  Stat.  27. 

The  same  Congress,  shortly  afterwards,  evidently  thinking  it  unwise, 
and  perhaps,  unsafe,  to  leave  so  important  a  declaration  of  rights  to 
depend  upon  an  ordinar}-  act  of  legislation,  which  might  be  repealed 
by  any  subsequent  Congress,  framed  the  Fourteenth  Amendment  of 
the  Constitution,  and  on  June  16,  1866,  by  joint  resolution  proposed  it 
to  the  legislatures  of  the  several  States;  and  on  July  28,  1868,  the 
Secretar}'  of  State  issued  a  proclamation  showing  it  to  have  been 
ratified  by  the  legislatures  of  the  requisite  number  of  States.  14  Stat. 
358;  15"  Stat.  708. 

The  first  section  of  the  Fourteenth  Amendment  of  the  Constitution 
begins  with  the  words,  "All  persons  born  or  naturalized  in  the  United 
btates,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  States  wherein  they  reside."  As  appears 
upon  the  face  of  the  amendment,  as  well  as  from  the  history  of  the 
times,  this  was  not  intended  to  impose  any  new  restrictions  upon 
citizenship,  or  to  prevent  any  persons  from  becoming  citizens  by  the 
fact  of  birth  within  the  United  States,  who  would  thereby  have  become 
citizens  according  to  the  law  existing  before  its  adoption.  It  is  declara- 
tor}' in  form,  and  enabling  and  extending  in  effect.  Its  main  purpose 
doubtless  was,  as  has  been  often  recognized  by  this  court,  to  establish 
the  citizenship  of  free  negroe's,  which  had  been  denied  in  the  opinion 
delivered  by  Chief  Justice  Taney  in  Dred  Scott  v.  Sandford  (1857)  19 


Ch.  2)  NATIONALITY  143 

How.  393,  15  L.  Ed.  691 ;  and  to  put  it  beyond  doubt  that  all  blacks, 
as  well  as  whites,  born  or  naturalized  within  the  jurisdiction  of  the 
United  States,  are  citizens  of  the  United  States.  The  Slaughterhouse 
Cases,  Strauder  v.  West  Virginia  (1879)  100  U.  S.  303,  306,  25  L.  Ed. 
664;  Ex  parte  Virginia  (1879)  100  U.  S.  339,  345,  25  L.  Ed.  676;  Neal 
V.  Delaware  (1880)  103  U.  S.  370,  3S6,  26  L.  Ed.  567;  Elk  v.  Wilkins 
(1884)  112  U.  S.  94,  101,  5  Sup.  Ct.  41,  28  L.  Ed.  643.  But  the 
opening  words,  "All  persons  born,"  are  general,  not  to  say  universal, 
restricted  only  by  place  and  jurisdiction,  and  not  by  color  or  race — as 
was  clearly  recognized  in  all  the  opinions  delivered  in  The  Slaughter- 
house Cases,  above  cited.     *     *     * 

The  real  object  of  the  Fourteenth  Amendment  of  the  Constitution, 
in  qualifying  the  words,  "All  persons  born  in  the  United  States,"  by 
the  addition,  "and  subject  to  the  jurisdiction  thereof,"  would  appear 
to  have  been  to  exclude,  by  the  fewest  and  fittest  words  (besides  chil- 
dren of  members  of  the  Indian  tribes,  standing  in  a  peculiar  relation 
to  the  National  Government,  unknown  to  the  common  law),  the  two 
classes  of  cases — children  born  of  alien  enemies  in  hostile  occupation, 
and  children,  of  diplomatic  representatives  of  a  foreign  State — both 
of  which,  as  has  already  been  shown,  by  the  law  of  England,  and  by 
our  own  law,  from  the  time  of  the  first  settlement  of  the  English  col- 
onies in  America,  had  been  recognized  exceptions  to  the  fundamental 
rule. of  citizenship  by  birth  within  the  country.  Calvin's  Case,  7 
Rep.  1,  18b;  Cockburn  on  Nationality,  7;  Dicey,  Conflict  of  Laws, 
177;  Inglis  v.  Sailor's  Snug  Harbor,  3  Pet.  99,  155,  7  h.  Ed.  617;  2 
Kent.  Com.  39,  42. 

The  principles  upon  which  each  of  those  exceptions  rests  were  long 
ago  distinctly  stated  by  this  court.     *     *     *  - 

The  foregoing  considerations  and  authorities  irresistibly  lead 
us  to  these  conclusions:  The  Fourteenth  Amendment  affirms  the 
ancient  and  fundamental  rule  of  citizenship  by  birth  v^ithin  the 
territory,  in  the  allegiance  and  under  the  protection  of  the  country, 
including  all  children  here  born  of  resident  aliens,  with  the  excep- 
tions or  qualifications  (as  old  as  the  rule  itself)  of  children  of  for- 
eign sovereigns  or  their  ministers,  or  born  on  foreign  public  ships, 
or  of  enemies  within  and  during  a  hostile  occupation  oi  part  of  our 
territory,  and  with  the  single  additional  exception  of  children  of 
members  of  the  Indian  tribes  owing  direct  allegiance  to  their  sev- 
eral tribes.  The  Amendment,  in  clear  words  and  in  manifest  intent, 
includes  the  children  born,  within  the  territory  of  the  United  States, 
of  all  other  persons,  of  whatever  race  or  color,  domiciled  within 
the  United  States.  Every  citizen  or  subject  of  another  country, 
while  domiciled  here,  is  within  the  allegiance  and  the  protection, 
and  consequently  subject  to  the  jurisdiction,  of  the  United  States. 
His  allegiance  to  the  United  States  is  direct  and  immediate,  and, 
i  although  but  local  and  temporary,  continuing  only  so  long  as  he  re- 
mains within  our  territory,  is  yet,  in  the  words  of  Lord  Coke,  in 


144  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OP  PEACE       (Part  1 

Calvin's  Case,  7  Rep.  6a,  "strong  enough  to  make  a  natural  sub- 
ject, for  if  he  hath  issue  here,  that  issue  is  a  natural-horn  subject;  " 
and  his  child,  as  said  by  Mr.  Binney  in  his  essay  before  quoted,  "if 
born  in  the  country,  is  as  much  a  citizen  as  the  natural-bom  child 
of  a  citizen,  and  by  operation  of  the  same  principle."  It  can  hardly 
be  denied  that  an  alien  is  completely  subject  to  the  political  juris- 
diction of  the  country  in  which  he  resides — seeing  that,  as  said  by 
Mr.  Webster,  when  Secretary  of  State,  in  his  Report  to  the  Presi- 
dent on  Thrasher's  Case  in  1851,  and  since  repeated  by  this  court, 
"independently  of  a  residence  with  intention  to  continue  such  resi- 
dence;  independently  of  any  dom.iciliation ;  independently  of  the 
taking  of  any  oath  of  allegiance  or  of  renouncing  any  former  alle- 
giance, it  is  well  known  that,  by  the  public  law,  an  alien,  or  a  stranger 
bom,  for  so  long  a  time  as  he  continues  within  the  dominions  of 
a  foreign  government,  owes  obedience  to  the  laws  of  that  govern- 
ment, and  may  be  punished  for  treason,  or  other  crimes,  as  a  native- 
born  subject  might  be,  unless  his  case  is  varied  by  some  treaty 
stipulations."  Ex.  Doc.  H.  R.  No.  10,  1st  Sess.  32d  Congress,  p. 
4:  6  M'ebster's  Works,  526;  United  States  v.  Carlisle,  16  Wall. 
147,  155,  21  L.  Ed.  426;  Calvin's  Case,  7  Rep.  6a;  Ellesmere  on 
Postnati,  63;  1  Hale,  P.  C.  62;  4  Bl.  Com.  74,  92. 
.  To  hold  that  the  Fourteenth  Amendment  of  the  Constitution 
excludes  from  citizenship  the  children,  born  in  the  United  States,  of 
citizens  or  subjects  of  other  countries,  would  be  to  deny  citizenship 
to  thousands  of  persons  of  English,  Scotch,  Irish,  German  or  other 
European  parentage,  who  have  always  been  considered  and  treated 
as  citizens  of  the  United  States. 

VI.  Whatever  considerations,  in  the  absence  of  a  controlling 
provision  of  the  Constitution,  might  influence  the  legislative  or  the 
executive  branch  of  the  Government  to  decline  to  admit  persons  of 
the  Chinese  race  to  the  status  of  citizens  of  the  United  States,  there 
are  none  that  can  constrain  or  permit  the  judiciary  to  refuse  to  give 
full  effect  to  the  peremptory  and  explicit  language  of  the  Four- 
teenth Amendment,  which  declares  and  ordains  that  "All  persons 
born  or  naturalized  in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States."     *     *     * 

It  is  true  that  Chinese  persons  born  in  China  cannot  be  natural- 
ized, like  other  aliens,  by  proceedings  under  the  naturalization  laws. 
But  this  is  for  want  of  any  statute  or  treaty  authorizing  or  per- 
mitting such  naturalization,  as  will  appear  by  tracing  the  history  of 
the  statutes,  treaties  and  decisions  upon  that  subject — always  bear- 
ing in  mind  that  statutes  enacted  by  Congress,  as  well  as  treaties 
made  by  the  President  and  Senate,  must  yield  to  the  paramount  and 
supreme  law  of  the  Constitution. 

The  power,  granted  to  Congress  by  the  Constitution,  "to  establish 
an  uniform  rule  of  naturalization,"  was  long  ago  adjudged  by  this 
court  to  be  vested  exclusivelv  in  Congress.     Chirac  v.  Chirac  (1817) 


Ch.  2)  NATIONALITY  145 

2  Wheat.  259,  4  L.  Ed.  234.  For  many  years  after  the  establishment 
of  the  original  Constitution,  and  until  two  years  after  the  adoption 
of  the  Fourteenth  Amendment,  Congress  never  authorized  the  nat- 
uralization of  any  but  "free  white  persons."  Acts  of  March  26,  1790, 
c.  3,  and  January  29,  1795,  c.  20;  1  Stat.  103,  414;  April  14,  1802, 
c.  28,  and  March  26,  1804,  c.  47,  2  Stat.  153,  292;  March  22,  1816,  c. 
32,  3  Stat.  258;  May  26,  1824,  c.  186,  and  May  24,  1828,  c.  116,  4 
Stat.  69,  310.  By  the  treaty  between  the  United  States  and  China, 
made  July  28,  1868,  and  promulgated  February  5,  1870,  it  was  pro- 
vided that  "nothing  herein  contained  shall  be  held  to  confer  nat- 
uralization upon  citizens  of  the  United  States  in  China,  nor  upon 
the  subjects  of  China  in  the  United  States."  16  Stat.  740.  By  the 
act  of  July  14,  1870,  c.  254,  §  7,  for  the  first  time,  the  naturalization 
laws  were  "extended  to  aliens  of  African  nativity  and  to  persons 
of  African  descent."  16  Stat.  256.  This  extension,  as  embodied 
in  the  Revised  Statutes,  took  the  form  of  providing  that  those  laws 
should  "apply  to  aliens  [being  free  white  persons,  and  to  aliens] 
of  African  nativity  and  to  persons  of  African  descent ;  "  and  it  was 
amended  by  the  act  of  February  18,  1875,  c.  80,  by  inserting  the  words 
above  printed  in  brackets.  Rev.  Stat.  (2d  Ed.)  §  2169,  18  Stat. 
318.^     *     *     * 

5  "The  term  'white  person'  must  be  given  its  common  or  popular  meaning. 
As  commonly  understood,  the  expression  includes  all  European  races  and 
those  Caucasians  belonging  to  the  races  around  the  Mediterranean  Sea,  wheth- 
er they  are  considered  as  'fair  whites'  or  'dark  whites,'  as  classified  by  Huxley, 
and  notwithstanding  that  certain  of  the  southern  and  eastern  European  races 
are  technically  classified  as  of  Mongolian  or  Tartar  origin. 

"It  is  just  as  certain  that,  whether  we  consider  the  Japanese  as  of  the  Mon- 
golian race  or  the  Malay  race,  they  are  not  included  in  what  are  commonly 
understood  as^white  persons.'"  Cushman,  J.,  in  Re  Young  (D.  0.)  198  Fed. 
715,  716-717  (1912). 

Chancellor  Kent  said,  in  considering  the  subject  of  naturalization:  "Per- 
haps there  might  be  difficulties  also  as  to  the  copper-colored  natives  of  Ameri- 
c?,  or  the  yellow  or  tawny  races  of  Asiatics,  and  it  may  well  be  doubted 
whether  any  6T  them  are  'white  persons,'  within  the  purview  ot  the  law." 
2  Co^m.  73.  The  act  of  Congress  of  Slay  6,  1882,  removed  the  doubt  as  to  "the 
yellow  or  tawny  races  of  Asiatics"  by  providing  "that  hereafter  no  state  court 
or  court  of  the  United  States  shall  admit  Chinese  to  citizenship :  and  all  laws 
in  conflict  with  this  act  are  hereby  repealed."  (22  Stat.  61 ;  In  re  Saito  [C.  C] 
62  Fed.  126  [a894].)  The  African  is  covered  by  section  2169  of  the  Revised 
Statutes:  "The  provisions  of  this  title  shall  apply  to  aliens  (being  free  white 
persons,  [In  re  Camille  (C.  C.)  6  Fed.  256  (1880)]  and  to  aliens)  of  African 
nativity,  and  to  persons  of  African  descent."  The  "copper-colored  natives  of 
America"  are  statuteless ;  but  in  Re  Rodriguez  (D.  C.)  81  Fed.  337  (1897),  it 
was  decided  that  a  Mexican  was  eligible  to  citizenship,  even  although  he  could 
neither  read  nor  write.  "Congress  has  not  seen  fit,"  said  the  learned  judge, 
"to  require  of  applicants  for  naturalization  an  educational  qualification,  and 
courts  should  be  careful  to  avoid  judicial  legislation." 

It  is  universally  recognized  that  nations  may  determine,  not  only  the 
conditions  upon  which  aliens  may  enter  their  territory,  but  also  those  upon 
which  they  may  continue  to  reside  therein.  It  follows,  naturally,  that  nations 
may  therefore  exclude  aliens.  ^  However,  at  the  present  day,  expulsion  would 
be  considered  a  high-handed  measure,  unless  the  reasons  were  such  as  con- 
cerned the  safety  and  well-being  of  the  state.  For  the  existence  of  the  right, 
ScoTT  Int.Law— 10 


146  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

The  Fourteenth  Amendment  of  the  Constitution,  in  the  declara- 
tion that  "all  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United  States 
and  of  the  State  wherein  they  reside,"  contemplates  two  sources  of 
citizenship,  and  two  only:  birth  and  naturalization.  Citizenship 
by  naturalization  can  only  be  acquired  by  naturalization  under  the 
authority  and  in  the  forms  of  law.  But  citizenship  by  birth  is 
established  by  the  mere  fact  of  birth  under  the  circumstances  de- 
fined in  the  Constitution.  Every  person  born  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  becomes  at  once  a  citizen 
of  the  United  States,  and  needs  no  naturalization.  A  person  born 
out  of  the  jurisdiction  of  the  United  States  can  only  become  a  citi- 
zen by  being  naturalized,  either  by  treaty,  as  in  the  case  of  the 
annexation  of  foreign  territory ;  or  by  authority  of  Congress,  exer- 
cised either  by  declaring  certain  classes  of  persons  to  be  citizens, 
as  in  the  enactments  conferring  citizenship  upon  foreign-born  chil- 
dren of  citizens,  or  by  enabling  foreigners  individually  to  become 
citizens  by  proceedings  in  the  judicial  tribunals,  as  in  the  ordinary 
provisions  of  the  naturalization  acts. 

The  power  of  naturalization,  vested  in  Congress  by  the  Constitu- 
tion, is  a  power  to  confer  citizenship,  not  a  power  to  take  it  away. 
"A  naturalized  citizen,"  said  Chief  Justice  Marshall,  "becomes  a 
member  of  the  society,  possessing  all  the  rights  of  a  native  citizen, 
and  standing,  in  the  view  of  the  Constitution,  on  the  footing  of  a 
native.  The  Constitution  does  not  authorize  Congress  to  enlarge 
or  abridge  those  rights.  The  simple  power  of  the  National  Legis- 
lature is  to  prescribe  a  uniform  rule  of  naturalization,  and  the  exer- 
cise of  this  power  exhausts  it,  so  far  as  respects  the  individual. 
The  Constitution  then  takes  him  up,  and,  among  other  rights,  ex- 
tends to  him  the  capacity  of  suing  in  the  courts  of  the  United  States, 
precisely  under  the  same  circumstances  under  which  a  native  might 
sue."  Osborn  v.  United  States  Bank,  9  Wheat.  738,  827  (6  L.  Ed. 
204).  Congress  having  no  power  to  abridge  the  rights  conferred 
by  the  Constitution  upon  those  who  have  become  naturalized  citi- 
zens by  virtue  of  acts  of  Congress,  a  fortiori  no  act  or  omission  of 
Congress,  as  to  providing  for  the  naturalization  of  parents  or  chil- 
dren of  a  particular  race,  can  effect  citizenship  acquired  as  a  birth- 
right, by  virtue  of  the  Constitution  itself,  without  any  aid  of  legisla- 
tion. The  Fourteenth  Amendment,  while  it  leaves  the  power,  where 
it  was  before,  in  Congress,  to  regulate  naturalization,  has  conferred 
no  authority  upon  Congress  to  restrict  the  effect  of  birth,  declared 
by  the  Constitution  to  constitute  a  sufficient  and  complete  right  to 
citizenship. 

see  Turner  v.  Williams,  194  U.  S.  279,  24  Sup.  Ct.  719,  48  L.  Ed.  979  (1904) ; 
and  on  the  procedure  to  be  followed  in  such  cases,  see  the  Boffolo  Case,  Rals- 
tou's  Venezuelan  Arbitrations  of  1903,  696  (1903). 

ScoiT  Int.Law 


Ch.  2)  NATIONALITY  147 

No  one  doubts  that  the  Amendment,  as  soon  as  it  was  promul- 
gated, applied  to  persons  of  African  descent  born  in  the  United 
States,  wherever  the  birthplace  of  their  parents  might  have  been ; 
and  yet,  for  two  years  afterwards,  there  was  no  statute  authorizing 
persons  of  that  race  to  be  naturalized.  If  the  omission  or  the  re- 
fusal of  Congress  to  permit  certain  classes  of  persons  to  be  made 
citizens  by  naturalization  could  be  allowed  the  effect  of  correspond- 
ingly restricting  the  classes  of  persons  who  should  become  citizens 
by  birth,  it  would  be  in  the  power  of  Congress,  at  any  time,  by 
striking  negroes  out  of  the  naturalization  laws,  and  limiting  those 
laws,  as  they  were  formerly  limited,  to  white  persons  only,  to  de- 
feat the  main  purpose  of  the  Constitutional  Amendment. 

The  fact,  therefore,  that  acts  of  Congress  or  treaties  have  not 
permitted  Chinese  persons  born  out  of  this  country  to  become  citi- 
zens by  naturalization,  cannot  exclude  Chinese  persons  born  in  this 
country  from  the  operation  of  the  broad  and  clear  words  of  the  Con- 
stitution, "all  persons  born  in  the  United  States,  and  subject  to  the 
jurisdiction  thereof,  are  citizens  of  the  United  States." 

VII.  Upon  the  facts  agreed  in  this  case,  the  American  citizen- 
ship which  Wong  Kim  Ark  acquired  by  birth  within  the  United 
States  has  not  been  lost  or  taken  away  by  anything  happening  since 
his  birth.  No  doubt  he  might  himself,  after  coming  of  age,  re- 
nounce this  citizenship,  and  become  a  citizen  of  the  country  of  his 
parents,  or  of  any  other  country;  for  by  our  law,  as  solemnly' de- 
clared by  Congress,  "the  right  of  expatriation  is  a  natural  and  inher- 
ent right  of  all  people,"  and  "any  declaration,  instruction,  opin- 
ion, order  or  direction  of  any  officer  of  the  United  States,  which 
denies,  restricts,  impairs  or  questions  the  right  of  expatriation,  is 
declared  inconsistent  with  the  fundamental  principles  of  the  Re- 
public." Rev.  Stat.  §  1999,  reenacting  act  of  July  27,  1868,  c.  249, 
§  1 ;  15  Stat.  223,  224.  Whether  any  act  of  himself,  or  of  his  par- 
ents, during  his  minority,  could  have  the  same  effect,  is  at  least 
doubtful.  But  it  would  be  out  of  place  to  pursue  that  inquiry; 
inasmuch  as  it  is  expressly  agreed  that  his  residence  has  always 
been  in  the  United  States,  and  not  elsewhere;  that  each  of  his  tem- 
porary visits  to  China,  the  one  for  some  months  when  he  was  about 
seventeen  years  old,  and  the  other  for  something  like  a  year  about 
the  time  of  his  coming  of  age,  was  made  with  the  intention  of  re- 
turning, and  was  followed  by  his  actual  return,  to  the  United 
States;  and  "that  said  Wong  Kim  Ark  has  not,  either  by  himself  or 
his  parents  acting  for  him,  ever  renounced  his  allegiance  to  the  Unit- 
ed States,  and  that  he  has  never  done  or  committed  any  act  or  thing 
to  exclude  him  therefrom." 

The  evident  intention,  and  the  necessary  effect,  of  the  submis- 
sion of  this  case  to  the  decision  of  the  court  upon  the  facts  agreed 
by  the  parties,  were  to  present  for  determination  the  single  ques- 
tion, stated  at  the  beginning  of  this  opinion,  namely,  whether  a 


148  RIGHTS  AND   DUTIES  OF  NATIONS   IN  TIME  OF  PEACE       (Part  1 

child  born  in  the  United  States,  of  parents  of  Chinese  descent,  who, 
at  the  time  of  his  birth,  are  subjects  of  the  Emperor  of  China,  but 
have  a  permanent  domicile  and  residence  in  the  United  States,  and 
are  there  carrying  on  business,  and  are  not  employed  in  any  dip- 
lomatic or  official  capacity  under  the  Emperor  of  China,  becomes 
at  the  time  of  his  birth  a  citizen  of  the  United  States.  For  the 
reasons  above  stated,  this  court  is  of  opinion  that  the  question  must 
be  answered  in  the  affirmative. 
Order  affirmed.* 


LURIA  v.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1913.    231  U.  S.  9,  34  Sup.  Ct.  10,  58 

L.  Ed.  101.) 

Mr.  Justice  Van  Devanter  delivered  the  opinion  of  the  court.^ 
This  appeal  brings  under  review  a  decree  setting  aside  and  can- 
celing, under  section  15  of  the  act  of  June  29,  1906,  34  Stat.  596,  601, 
c.  3592  (Comp.  St.  §  4374)  as  fraudulently  and  illegally  procured,  a 
certificate  of  citizenship  theretofore  issued  to  George  A.  Luria  by  the 
Court  of  Common  Pleas  of  the  City  and  County  of  New  York,  U.  S. 
V.  Luria  (D.  C.)  184  Fed.  643.     *     *     * 

The  case  was  heard  upon  an  agreed  statement  and  some  accom- 
panying papers,  from  all  of  which  it  indubitably  appeared  that  Luria 
was  born  in  Wilna,  Russia,  in  1865  or  1868  and  came  to  New  York 
in  1888 ;  that  he  entered  a  medical  college  of  that  city  the  next  year 
and  was  graduated  therefrom  in  1893 ;  that  he  applied  for  and  pro- 
cured the  certificate  of  citizenship  in  July,  1894;  that  in  the  following 
month  he  sought  and  obtained  a  passport  from  the  Department  of 
State,  and  in  November  left  the  United  States  for  the  Transvaal, 
South  Africa,  arriving  there  in  December;  that  from  that  time  to  the 
date  of  the  hearing,  in  December,  1910,  he  resided  and  practiced  his 
profession  in  South  Africa;  that  he  joined  the  South  African  Medical 
Association  and  served  in  the  Boer  war;  that  his  only  return  to  the 

6  According  to  Boyd  v.  Thayer,  143  U.  S.  135,  162,  12  Sup.  Ct.  375,  36  L.  Ed. 
103  (1892) :  "Naturalization  is  the  act  of  adopting  a  foreigner,  and  clothing 
him  with  the"  privileges  of  a  native  citizen.  *  *  *  Congress,  in  the  exer- 
cise of  the  power  to  establish  a  uniform  rule  of  naturalization,  has  enacted 
general  laws  under  which  individuals  may  be  naturalized,  but  the  instances  of 
collective  naturalization  by  treaty  or  by  statute  are  numerous.  *  *  * 
Manifestly  the  nationality  of  the  inhabitants  of  territory  acquired  by  con- 
quest or  cession  becomes  that  of  the  government  under  whose  dominion  they 
pass,  subject  to  the  right  of  election  on  their  part  to  retain  their  former  na- 
tionality by  removal  or  otherwise,  as  may  be  provided."  The  learned  Chief 
Justice  (Fuller)  proceeds  to  an  enumeration  of  the  many  instances  of  collec- 
tive naturalization  in  our  history. 

A  much  shorter  and  more  recent  discussion  of  the  subject  (collective  nat- 
uralization on  annexation  of  Texas)  is  found  in  Contzen  v.  U.  S.,  179  U.  S. 
191-196,  21  Sup.  Ct.  98,  45  L.  Ed.  148  (1900).  See,  also,  Behrensmeyer  v. 
Kreitz,  135  111.  591,  26  N.  E.  704  (1891). 

'  Part  of  the  opinion  is  omitted. 


Ch.  2)  NATIONALITY  149 

United  States  was  for  four  or  five  months  in  1907,  for  the  temporary 
purpose  of  taking  a  postgraduate  course  in  a  medical  school  in  New 
York;  and  that  when  entering  that  school  he  gave  as  his  address, 
Johannesburg,  South  Africa.  From  the  facts  so  appearing  the  Dis- 
trict Court  found  and  held  that  within  a  few  months  after  securing 
the  certificate  of  citizenship,  Luria  went  to  and  took  up  a  permanent 
residence  in  South  Africa,  and  that  this,  under  section  15  of  the 
act  of  1906,  constituted  prima  facie  evidence  of  a  lack  of  intention 
on  his  part  to  become  a  permanent  citizen  of  the  United  States  at 
the  time  he  apphed  for  the  certificate.     *     *     * 

Section  15  of  the  act  of  1906,  under  which  this  suit  was  conducted, 
is  as  follows  (34  Stat.  601) : 

"Sec.  15.  That  it  shall  be  the  duty  of  the  United  States  district 
attorneys  for  the  respective  districts,  upon  affidavit  showing  good 
cause  therefor,  to  institute  proceedings  in  any  court  having  jurisdic- 
tion to  naturalize  aliens  in  the  judicial  district  in  which  the  naturalized 
citizen  may  reside  at  the  time  of  bringing  the  suit,  for  the  purpose  of 
setting  aside  and  canceling  the  certificate  of  citizenship  on  the  ground 
of  fraud,  or  on  the  ground  that  such  certificate  of  citizenship  was  il- 
legally procured.  In  any  such  proceedings  the  party  holding  the  cer- 
tificate of  citizenship  alleged  to  have  been  fraudulently  or  illegally 
procured  shall  have  sixty  days  personal  notice  in  which  to  make  an- 
swer to  the  petition  of  the  United  States;  and  if  the  holder  of  such 
certificate  be  absent  from,  the  United  States  or  from  the  district  in 
which  he  last  had  his  residence,  such  notice  shall  be  given  by  pubH- 
cation  in  the  manner  provided  for  the  service  of  summons  by  publica- 
tion or  upon  absentees  by  the  laws  of  the  State  or  the  place  where  such 
suit  is  brought. 

"//  any  alien  who  shall  have  secured  a  certificate  of  citizenship  tin- 
der the  provisions  of  this  Act  shall,  within  five  years  after  the  issu- 
ance of  such  certificate,  return  to  the  country  of  his  nativity,  or  go  to 
any  other  foreign  country,  and  take  permanent  residence  therein,  it 
shall  he  considered  prima  facie  evidence  of  a  lack  of  intention  on  the 
part  of  such  alien  to  beco^me  a  permanent  citizen  of  the  United  States 
at  the  time  of  filing  his  application  for  citizenship,  and,  in  the  absence 
of  cottntervailing  evidence,  it  shall  be  sufficient  in  the  proper  pro- 
ceeding to  authorize  the  cancellation  of  his  certificate  of  citizenship 
as  fraudident,  and  the  diplomatic  and  consular  oMcers  of  the  United 
States  in  foreign  countries  shall  from  time  to  time,  through  the  De- 
partment of  State,  furnish  the  Department  of  Justice  zvith  the  names 
of  those  zmthin  their  respective  jurisdictions  who  have  such  certificates 
of  citizenship  and  who  have  taken  permanent  residence  in  the  coun- 
try of  their  natizity,  or  in  any  other  foreign  countr\y,  and  such  state- 
ments, didy  certified,  shall  be  admissible  in  evidence  in  all  courts  in 
proceedings  to  cancel  certificates  of  citizenship. 

"Whenever  any  certificate  of  citizenship  shall  be  set  aside  or  can- 
celed, as  herein  provided,  the  court  in  which  such  judgment  or  decree 


150  RIGHTS  AND  DUTIES  OP  NATIONS  IN   TIME   OF  PEACE       (Part  1' 

is  rendered  shall  make  an  order  canceling  such  certificate  of  citizen- 
ship, and  shall  send  a  certified  copy  of  such  order  to  the  Bureau  of 
Immigration  and  Naturalization;  and  in  case  such  certificate  was  not 
originally  issued  by  the  court  making  such  order  it  shall  direct  the 
clerk  of  the  court  to  transmit  a  copy  of  such  order  and  judgment 
to  the  court  out  of  which  such  certificate  of  citizenship  shall  have  been 
originally  issued.  And  it  shall  thereupon  be  the  duty  of  the  clerk  of 
the  court  receiving  such  certified  copy  of  the  order  and  judgment  of 
the  court  to  enter  the  same  of  record  and  to  cancel  such  original  cer- 
tificate of  citizenship  upon  the  records  and  to  notify  the  Bureau  of 
Immigration  and  Naturalization  of  such  cancellation. 

"The  provisions  of  this  section  shall  apply  not  only  to  certificates 
of  citizenship  issued  under  the  provisions  of  this  act,  hut  to  all  cer- 
tificates of  citizenship  which  may  have  been  issued  heretofore  by  any 
court  exercising  jurisdiction  in  naturalisation  proceedings  under  prior 
laws." 

One  of  the  questions  arising  under  this  section  is,  whether  the  sec- 
ond paragraph,  dealing  with  the  evidential  effect  of  taking  up  a  per- 
manent residence  in  a  foreign  country  within  five  years  after  secur- 
ing a  certificate  of  citizenship,  is  confined  to  certificates  issued  under 
the  act  of  1906,  or  applies  also  to  those  issued  under  prior  laws,  as 
was  Luria's.  If  that  paragraph  were  alone  examined,  the  answer  un- 
doubtedly would  be  that  only  certificates  under  the  act  of  1906  are 
included.  But  the  last  paragraph  also  must  be  considered.  It  ex- 
pressly declares  that  "the  provisions  of  this  section"  shall  apply,  not 
only  to  certificates  issued  under  the  act  of  1906,  but  also  to  all  cer- 
tificates theretofore  issued  under  prior  laws.  The  words  "the  pro- 
visions of  this  section"  naturally  mean  every  part  of  it,  one  paragraph 
as  much  as  another,  and  that  meaning  cannot  well  be  rejected  without 
leaving  it  uncertain  as  to  what  those  words  embrace.     *     *     * 

But  it  is  said  that  it  was  not  essential  to  naturalization  under  prior 
laws.  Rev.  Stat.  §§  2165-2170,  that  the  applicant  should  intend  there- 
after to  reside  in  the  United  States ;  that,  if  he  otherwise  met  the 
statutory  requirements,  it  was  no  objection  that  he  intended  presently 
to  take  up  a  permanent  residence  in  a  foreign  country ;  that  the  act  of 
1906,  differing  from  prior  laws,  requires  the  applicant  to  declare 
"that  it  is  his  intention  to  reside  permanently  within  the  United  States" ; 
and  therefore  that  Congress,  when  enacting  the  second  paragraph  of 
section  15,  must  have  intended  that  it  should  apply  to  certificates 
issued  under  that  act  and  not  to  those  issued  under  prior  laws.  It  is 
true  that  section  4  of  the  act  of  1906  exacts  from  the  applicant  a 
declaration  of  his  intention  to  reside  in  the  United  States,  and  it  is 
also  true  that  the  prior  laws  did  not  expressly  call  for  such  a  dec- 
laration. But  we  think  it  is  not  true  that  under  the  prior  laws  it  was 
immaterial  whether  the  appHcant  intended  to  reside  in  this  country  or 
presently  to  take  up  a  permanent  residence  in  a  foreign  country.  On 
the  contrary,  by  necessary  implication,  as  we  think,  the  prior  laws 


Ch.  2)  NATIONALITY  151 

conferred  the  right  to  naturalization  upon  such  aliens  only  as  con- 
templated the  continuance  of  a  residence  already  established  in  the 
United  States. 

Citizenship  is  membership  in  a  political  society  and  implies  a  duty 
of  allegiance  on  the  part  of  the  member  and  a  duty  of  protection  on 
the  part  of  the  society.  These  are  reciprocal  obligations,  one  being 
a  compensation  for  the  other.  Under  our  Constitution,  a  naturalized 
citizen  stands  on  an  equal  footing  with  the  native  citizen  in  all  re- 
spects, save  that  of  eligibility  to  the  Presidency.  Minor  v.  Happer- 
sett,  21  Wall.  162,  165,  22  L.  Ed.  627;  Elk  v.  Wilkins,  112  U.  S.  94, 
101,  5  Sup.  Ct.  41,  28  L.  Ed.  643;  Osborn  v.  Bank,  9  Wheat.  738, 
827,  6  L.  Ed.  204.  Turning  to  the  naturahzation  laws  preceding  the 
act  of  1906,  being  those  under  which  Luria  obtained  his  certificate, 
we  find  that  they  required,  first,  that  the  aHen,  after  coming  to  this 
country,  should  declare  on  oath,  before  a  court  or  its  clerk,  that  it 
was  bona  fide  his  intention  to  become  a  citizen  of  the  United  States, 
and  to  renounce  forever  all  allegiance  and  fidelity  to  any  foreign 
sovereignty ;  second,  that  at  least  two  years  should  elapse  between  the 
making  of  that  declaration  and  his  application  for  admission  to  citizen- 
ship; third,  that  as  a  condition  to  his  admission  tlie  court  should  be 
satisfied,  through  the  testimony  of  citizens,  that  he  had  resided  within 
the  United  States  five  years  at  least,  and  that  during  that  time  he  had 
behaved  as  a  man  of  good  moral  character,  attached  to  the  principles 
of  the  Constitution  of  the  United  States,  and  well  disposed  to  the  good 
order  and  happiness  of  the  same;  and,  fourth,  that  at  the  time  of  his 
admission  he  should  declare  on  oath  that  he  would  support  the  Con- 
stitution of  the  United  States  and  that  he  absolutely  and  entirely  re- 
nounced and  abjured  all  allegiance  and  fidelity  to  every  foreign 
sovereignty.  These  requirements  plainly  contemplated  that  the  ap- 
plicant, if  admitted,  should  be  a  citizen  in  fact  as  well  as  in  name — 
that  he  should  assume  and  bear  the  obligations  and  duties  of  that 
status  as  well  as  enjoy  its  rights  and  privileges.  ^In  other  words, 
it  was  contemplated  that  his  admission  should  be  mutually  beneficial 
to  the  Government  and  himself,  the  proof  in  respect  of  his  estab- 
lished residence,  moral  character,  and  attachment  to  the  principles 
of  the  Constitution  being  exacted  because  of  what  they  promised  for 
the  future,  rather  than  for  what  they  told  of  the  past. 

By  the  clearest  implication  those  laws  show  that  it  was  not  intended 
that  naturalization  could  be  secured  thereunder  by  an  alien  whose 
purpose  was  to  escape  the  duties  of  his  native  allegiance  without 
taking  upon  himself  those  of  citizenship  here,  or  by  one  whose  pur- 
pose was  to  reside  permanently  in  a  foreign  country  and  to  use  his 
naturalization  as  a  shield  against  the  imposition  of  duties  there,  while 
by  his  absence  he  was  avoiding  his  duties  here.  Naturalization  secured 
with  such  a  purpose  was  wanting  in  one  of  its  most  essential  elements 
— good  faith  on  the  part  of  the  applicant.  It  involved  a  wrongful  use 
of  a  beneficent  law.     True,  it  was  not  expressly  forbidden;  neither 


152  RIGHTS  AND   DUTIES   OP   NATIONS   IN   TIME   OP   PEACE       (Part  1 

was  it  authorized.  But,  being  contrary  to  the  plain  implication  of 
the  statute,  it  was  unlawful,  for  what  is  clearly  implied  is  as  much 
a  part  of  a  law  as  what  is  expressed.  United  States  v.  Babbit,  1  Black, 
55,  61,  17  L.  Ed.  94;  McHenry  v.  Alford,  168  U.  S.  651,  672,  18 
Sup.  Ct.  242,  42  L.  Ed.  614;  South  Carolina  v.  United  States,  199 
U.  S.  437,  451,  26  Sup.  Ct.  110,  50  L.  Ed.  261,  4  Ann.  Cas.  IZJ. 

Perceiving  nothing  in  the  prior  laws  which  shows  that  Congress 
could  not  have  intended  that  the  last  paragraph  of  section  15  of  the 
act  of  1906  should  be  taken  according  to  the  natural  meaning  and 
import  of  its  words,  we  think,  as  before  indicated,  that  it  must  be  re- 
garded as  extending  the  preceding  paragraphs  of  that  section  to  all 
certificates  of  naturalization,  whether  secured  theretofore  under  prior 
laws  or  thereafter  under  that  act. 

Several  contentions  questioning  the  constitutional  validity  of  sec- 
tion 15  are  advanced,  but  all,  save  the  one  next  to  be  mentioned,  are 
sufficiently  answered  by  observing  that  the  section  makes  no  discrimi- 
nation between  the  rights  of  naturalized  and  native  citizens,  and  does 
not  in  anywise  affect  or  disturb  rights  acquired  through  lawful  natural- 
ization, but  only  provides  for  the  orderly  cancellation,  after  full 
notice  and  hearing,  of  certificates  of  naturalization  which  have  been 
procured  fraudulently  or  illegally.  It  does  not  make  any  act  fraudu- 
lent or  illegal  that  was  honest  and  legal  when  done,  imposes  no  pen- 
alties, and  at  most  provides  for  the  annulment,  by  appropriate  ju- 
dicial proceedings,  of  merely  colorable  letters  of  citizenship,  to  which 
their  possessors  never  were  lawfully  entitled.  Johannessen  v.  United 
States,  225  U.  S.  227,  32  Sup.  Ct.  613,  56  L.  Ed.  1066.  See,  also, 
Wallace  v.  Adams,  204  U.  S.  415,  27  Sup.  Ct.  mZ,  51  L.  Ed.  547. 

Objection  is  specially  directed  to  the  provision  which  declares  that 
taking  up  a  permanent  residence  in  a  foreign  country  within  five  years 
after  the  issuance  of  the  certificate  shall  be  considered  prima  facie 
evidence  of  a  lack  of  intention  to  become  a  permanent  citizen  of  the 
United  States  at  the'  time  of  the  application  for  citizenship,  and  that 
in  the  absence  of  countervailing  evidence  the  same  shall  be  suffi- 
cient to  warrant  the  cancellation  of  the  certificate  as  fraudulent.  It 
will  be  observed  that  this  provision  prescribes  a  rule  of  evidence, 
not  of  substantive  right.  It  goes  no  farther  than  to  establish  a  re- 
buttable presumption  which  the  possessor  of  the  certificate  is  free  to 
overcome.  If,  in  truth,  it  was  his  intention  at  the  time  of  his  applica- 
tion to  reside  permanently  in  the  United  States,  and  his  subsequent 
residence  in  a  foreign  country  was  prompted  by  considerations  which 
were  consistent  with  that  intention,  he  is  at  liberty  to  show  it.  Not 
only  so,  but  these  are  rriatters  of  which  he  possesses  full,  if  not  special, 
knowledge.  The  controlling  rule  respecting  the  power  of  the  legis- 
lature in  establishing  such  presumptions  is  comprehensively  stated  in 
Mobile,  etc.,  Railroad  Co.  v.  Turnipseed,  219  U.  S.  35,  42,  43,  31 
Sup.  Ct.  136,  137  (55  L.  Ed.  78,  32  L.  R.  A.  fN.  S.]  226,  Ann.  Cas. 
1912A,  463),  as  follows  • 


Ch.  2)  NATIONALITY  153 

"Legislation  providing  that  proof  of  one  fact  shall  constitute  prima 
facie  evidence  of  the  main  fact  in  issue,  is  but  to  enact  a  rule  of 
evidence,  and  quite  within  the  general  power  of  government.  Stat- 
utes, national  and  state,  dealing-  with  such  methods  of  proof  in  both 
civil  and  criminal  cases  abound,  and  the  decisions  upholding  them  are 
numerous.     *     *     * 

Nor  is  it  a  valid  objection  to  such  legislation  that  it  is  made  applica- 
ble to  existing  causes  of  action,  as  is  the  case  here,  the  true  rule  in 
that  regard  being  well  stated  in  Cooky's  Constitutional  Limitations, 
7th  Ed.  524,  in  these  words: 

"It  must  also  be  evident  that  a  right  to  have  one's  controversies  de- 
termined by  existing  rides  of  evidence  is  not  a  vested  right.  These 
rules  pertain  to  the  remedies  which  the  State  provides  for  its  citizens ; 
and  generally  in  legal  contemplation  they  neither  enter  into  and  con- 
stitute a  part  of  any  contract,  nor  can  be  regarded  as  being  of  the 
essence  of  any  right  which  a  party  may  seek  to  enforce.  Like  other 
rules  affecting  the  remedy,  they  must  therefore  at  all  times  be  subject 
to  modification  and  control  by  the  legislature ;  and  the  changes  which 
are  enacted  may  lawfully  be  made  applicable  to  existing  causes  of  ac- 
tion, even  in  those  States  in  which  retrospective  laws  are  forbidden. 
For  the  law  as  changed  would  only  prescribe  rules  for  presenting  the 
evidence  in  legal  controversies  in  the  future;  and  it  could  not  there- 
fore be  called  retrospective  even  though  some  of  the  controversies 
upon  which  it  may  act  were  in  progress  before." 

This  court  applied  that  rule  in  Webb  v.  Den,  17  How.  576,  578, 
15  L.  Ed.  35;  Hopt  v.  Utah,  110  U.  S.  574,  590,  4  Sup.  Ct.  202,  28 
L.  Ed.  262;  Thompson  v.  Missouri,  171  U.  S.  380,  18  Sup.  Ct.  922. 
43  L.  Ed.  204 ;  and  Reitler  v.  Harris,  223  U.  S.  437,  32  Sup.  Ct.  248, 
56  L.  Ed.  497. 

That  the  taking  up  of  a  permanent  residence  in  a  foreign  country 
shortly  following  naturalization  has  a  bearing  upon  the  purpose  with 
which  the  latter  was  sought  and  affords  some  reason  for  presuming 
that  there  was  an  absence  of  intention  at  the  time  to  reside  perma- 
nently in  the  United  States  is  not  debatable.  No  doubt,  the  reason  for 
the  presumption  lessens  as  the  period  of  time  between  the  two  events 
is  lengthened.  But  it  is  difficult  to  say  at  what  point  the  reason  so  far 
disappears  as  to  afford  no  reasonable  basis  for  the  presumption.  Con- 
gress has  indicated  its  opinion  that  the  intervening  period  may  be  as 
much  as  five  years  without  rendering  the  presumption  baseless.  That 
.  period  seems  long,  and  yet  we  are  not  prepared  to  pronounce  it  cer- 
tainly excessive  or  unreasonable.  But  we  are  of  opinion  that  as  the 
intervening  time  approaches  five  years  the  presumption  necessarily 
must  weaken  to  such  a  degree  as  to  require  but  slight  countervailing 
evidence  to  overcome  it.  On  the  other  hand,  when  the  intervening 
time  is  so  short  as  it  is  shown  to  have  been  in  the  present  case,  the 
presumption  cannot  be  regarded  as  yielding  to  anything  short  of  a 


154  RIGHTS   AND   DUTIES   OF  NATIONS   IN   TIME   OF   PEACE       (Part  1 

substantial  and  convincing  explanation.     So  construed,  we  think  the 
provision  is  not  in  excess  of  the  power  of  Congress.     *     *     * 

Finding  no  error  in  the  record,  the  decree  is 

Affirmed. 


SECTION  3.— EXPATRIATION « 


ACT  OF  VIRGINIA  OF  1786  CONCERNING  EXPATRIATION 

Y  *  *  *  ^j^(j  in  order  to  preserve  to  the  citizens  of  this  com- 
monwealth that  natural  right  which  all  men  have  of  relinquishing  the 
society  in  which  birth  or  accident  may  have  thrown  them,  and  of  seek- 
ing subsistence  and  happiness  elsewhere,  and  to  declare  explicitly  what 
shall  be  deemed  evidence  of  an  intention  in  any  citizen  to  exercise  that 
right. 

VI.  Be  it  further  enacted,  That  whensoever  any, citizen  of  this  com- 
monwealth shall,  by  deed  in  writing,  under  his  hand  and  seal,  executed 
in  the  presence  of  and  subscribed  by  three  witnesses,  and  by  them,  or 
two  of  them,  proved  in  the  general  court  or  the  court  of  the  county 
wherein  he  resides,  or  by  open  verbal  declaration  made  in  either  of  the 
said  courts,  to  be  by  them  entered  of  record,  declare  that  he  relinquishes 
the  character^ofa^  citizen,  and  shall  depart  out  of  this  commonwealth, 
such  person  shall,  from  the  time  of  his  departure,  be  considered  as 
having  exercised  his  right  of  expatriation,  and  shall  thenceforth  be 
deemed  no  citizen.  [An  act  to  explain,  amend,  and  reduce  into  one  act, 
the  several  acts  for  the  admission  of  emigrants  to  the  rights  of  citizen- 
ship, and  prohibiting  the  migration  of  certain  persons  to  this  common- 
wealth, October,  1786.  12  Hening,  Virginia  Statutes  at  Earge,  Chap. 
10,  pp.  261,  262,  263.]  » 

*  For  the  doctrine  of  expatriation,  see  John  Bassett  Moore's  Principles  of 
American  Diplomacy,  c.  vii,  270-305  (191S). 

®  The  original  provisions  concerning  the  right  of  expatriation  were  contain- 
ed in  "An  act  declaring  who  shall  be  deemed  citizens  of  this  commonwealth," 
passed  in  1779.    10  Hening,  Virginia  Statutes  at  Large,  Chap.  55,  p.  129. 

The  text  of  the  Act  of  1786  differs  in  form,  but  not  in  substance,  from  that 
of  1779. 

See  Alsberry  v.  Hawkins,  9  Dana  (Ky.)  177,  33  Am.  Dec.  546  (1839),  for  the 
interpretation  of  this  act. 


Ch.  2)  .         NATIONALITY  1-55 

AN  ACT  CONCERNING  THE  RIGHTS  OE  AMERICAN  CITI- 
ZENS IN  FOREIGN  STATES,  1868 

(15  United  States  Statutes  at  Large,  223.) 

Whereas  the  right  of  expatriation  is  a  natural  and  inherent. right 
of  all  people,  indispensable  to  the  enjoyment  of  the  rights  of  life, 
liberty,  and  the  .pursuit  of  happiness ;  and  whereas  in  the  recognition 
of  this  principle  this  government  has  freely  received  emigrants  from 
all  nations,  and  invested  them  with  the  rights  of  citizenship;  and 
whereas  it  is  claimed  that  such  American  citizens,  with  their  descend- 
ants, are  subjects  of  foreign  states,  owing  allegiance  to  the  govern- 
ments thereof;  and  whereas  it  is  necessary  to  the  maintenance  of 
public  peace  that  this  claim  of  foreign  allegiance  should  be  promptly 
and  finally  disavowed:     Therefore, 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  any  declara- 
tion, instruction,  opinion,  order  or  decision  of  any  officers  of  this  gov- 
ernment which  denies,  restricts,  impairs,  or  questions  the  right  of  ex- 
patriation, is  hereby  declaredinconsistent  with  the  fundamental  prin- 
ciples of  this  government. 

Sec.  2.  And  be  it  further  enacted.  That  all  naturalized  citizens  of 
the  United  States,  while  in  foreign  states,  shall  be  entitled  to,  and^ 
shall  receive  from  this  government,  the  same  protection  of  persons 
and  .property  that  is  accorded  to  native-born  citizens  in  like  situations 
and  circumstances. 

Sec.  3.  And  be  it  further  enacted.  That  whenever  it  shall  be  made 
known  to  the  President  that  any  citizen  of  the  United  States  has 
been  unjustly  deprived  of  his  liberty  by  or  under  the  authority  of  any 
foreign  government,  it  shall  be  the  duty  of  the  President  forthwith  to 
demand  of  that  government  the  reasons  for  such  imprisonment,  and 
if  it  appears  to  be  wrongful  and  in  violation  of  the  rights  of  Amer- 
ican citizenship,  the  President  shall  forthwith  demand  the  release  of 
such  citizen,  and  if  the  release  so  demanded  is  unreasonably  delayed  or 
refused,  it  shall  be  the  duty  of  the  President  to  use  such  means,  not 
amounting  to  acts  of  war,  as  he  may  think  necessary  and  proper  to 
obtain  or  effectuate  such  release,  and  all  the  facts  and  proceedings 
relative  thereto  shall  as  soon  as  practicable  be  communicated  by  the 
President  to  Congress. 

Approved,  July  27,  1868.i» 

10  Beginning  with  1868  the  United  States  concluded  a  series  of  naturaliza- 
tion conventions  which  were  known  as  the  Bancroft  Treaties,  from  the  fact 
that  they  were  negotiated  on  behalf  of  the  United  States  by  George  Bancroft, 
the  distinguished  historian  who  was  at  that  time  American  Minister  to  Prus- 
sia and  the  North  German  Confederation,  and  later  to  the  German  Empire. 

They  are  a  model  solution  of  a  dillcult  problem,  and  are  a  happy  compromise 


156 •  RIGHTS  AND   DUTIES  OF  NATIONS   IN  TIME  OF   PEACE       (Part  1 

between  the  doctrine  of  expatriation  on  the  one  hand,  and  inalienable  al- 
legiance on  the  other. 

The  following  are  the  material  provisions  of  these  Treaties: 

Article  I.  Citizens  of  the  North  German  Confederation,  who  become  natural- 
ized citizens  of  the  United  States  of  America  and  shall  have  resided  unin- 
terruptedly within  the  United  States  five  years,  shall  be  held  by  the  North 
German  Confederation  to  be  American  citizens,  and  shall  be  treated  as  such. 

Reciprocally,  citizens  of  the  United  States  of  America  who  become  natural- 
ized citizens  of  the  North  German  Confederation,  and  shall  have  resided  un- 
interruptedly within  North  Germany  five  years,  shall  be  held  by  the  United 
States  to  be  North  German  citizens,  and  shall  be  treated  as  such.  The  dec- 
laration of  an  intention  to  become  a  citizen  of  the  one  or  the  other  country  has 
not  for  either  party  the  effect  of  naturalization. 

This  article  shall  apply  as  well  to  those  already  naturalized  in  either  coun- 
try as  those  hereafter  naturalized. 

Article  II.  A  naturalized  citizen  of  the  one  party  on  return  to  the  terri- 
tory of  the  other  party  remains  liable  to  trial  and  punishment  for  an  action 
punishable  by  the  laws  of  his  original  country  and  committed  before  his  emi- 
gration; saving,  always,  the  limitations  established  by  the  laws  of  his  original 
country.     *     *     * 

Article  IV.  If  a  German  naturalized  in  America  renews  his  residence  in 
North  Germany,  without  the  intent  to  retvirn  to  America,  he  shall  be  held  to 
have  renounced  his  naturalization  in  the  United  States.  Reciprocally,  if  an 
American  naturalized  in  North  Germany  renews  his  residence  in  the  United 
States,  without  the  intent  to  return  to  North  Germany,  he  shall  be  held  to 
have  renounced  his  naturalization  in  North  Germany.  The  intent  not  to  re- 
turn may  be  held  to  exist  when  the  person  naturalized  in  the  one  country  re- 
sides more  than  two  years  in  the  other  country.  Malloy's  Treaties,  Conven- 
tions, International  Acts,  Protocols  and  Agreements  between  the  United  States 
and  Other  Powers,  1776-1909,  vol.  2,  1298-1299. 

In  1907,  Congress  passed  "an  act"  approved  by  the  President  March  2, 
1907,  "in  reference  to  the  expatriation  of  citizens  and  their  protection  abroad." 
The  second  section,  dealing  with  the  question  of  expatriation,  is  thus  worded : 

"Any  American  citizen  shall  be  deemed  to  have  expatriated  himself  when 
he  has  been  naturalized  in  any  foreign  state  in  conformity  with  its  laws» 
or  when  he  has  tauen  an  oath  of  allegiance  to  any  foreign  state. 

"When  any  naturalized  citizen  shall  have  resided  for  two  years  in  the  for- 
eign state  from  which  he  came,  or  for  five  years  in  any  other  foreign  state,  it 
shall  be  presumed  that  he  has  ceased  to  be  an  American  citizen,  and  the  place 
of  his  general  abode  shall  be  deemed  his  place  of  residence  during  said  years : 
Provided,  however,  That  such  presumption  may  be  overcome  on  the  presenta- 
tion of  satisfactory  evidence  to  a  diplomatic  or  consular  ofiicer  of  the  United 
States,  under  such  rules  and  regulations  as  the  Department  of  State  may 
prescribe:  And  provided  also,  That  no  American  citizen  shall  be  allowed  to 
expatriate  himself  when  this  country  is  at  war."  34  Stat.  p.  1228  (Comp.  St. 
§  3959). 


Ch.  2)  NATIONALITY 


157 


AN  ACT  TO  AMEND  THE  LAW  RELATING  TO  THE  LEGAL 
CONDITION  OF  ALIENS  AND  BRITISH 
■   SUBJECTS,  MAY  12,  1870.^^ 

(33  Vict.  c.  14,  Law  Reports,  1870,  5  Pub.  Gen.  St.  166.) 

4.  Any  person  who  by  reason  of  his  having  been  born  withinjhe 
dominions  of  Her_  Majesty  is  a^natural-bprn  subject,  but  who  also  at 
the  time  of  his  birth  became  under  the  law  of  any  foreign  state  a  sub- 
ject of  such  state,  and  is  still  such  subject,  may,  if  of  full  age  and  not 
under  any  disability,  make  a  declaration  of  alienage  in  manner  afore- 
said, and  from  ,and  after  the  making  of  such  declaration  of  alienage 
such  person  shaU  cease  to_be  a  British  subject.     Any  person  who  is 

11  The  provisions  of  the  above  act  were  superseded  by  "An  act  to  consolidate 
and  amend  the  enactments  relating  to  British  nationality  and  the  status  of 
aliens,  4  &  5  Geo.  V,  c.  17,"  of  August  7,  1914. 

For  the  text  of  this  act,  which  went  into  effect  on  January  1,  1915,  see  9 
American  Journal  of  International  Law  Supplement  (1915)  413-423. 

On  the  act  itself,  see  Richard  W.  Flournoy's  article  entitled  "The  New  Brit- 
ish Imperial  Law  of  Nationality,"  9  American  Journal  of  International  Law 
(1915)   870-882. 

The  German  Imperial  and  State  Citizenship  Law  of  July  23.  1913,  which 
went  into  effect  on  January  1,  1914,  contains  some  unusual  provisions  regard- 
ing the  reacquisitiou  and  retention  of  German  citizenship,  which  have  not 
commended  themselves  to  other  nations  or  to  foreign  publicists. 

These  provisions,  contained  in  sections  13  and  25,  are  as  follows : 

"Sec.  13.  A  former  German  who  has  not  taken  up  his  residence  in  Germany 
may  on  application  be  naturalized  by  the  state  [of  Germany]  of  which  he  was 
formerly  a  citizen,  provided  his  case  fulfils  the  requirements  of  Nos.  1  and  2 
of  paragraph  1  of  section  8;  the  same  applies  to  one  who  is  descended  from  a 
former  German  or  has  been  adopted  as  a  child  of  such.  Prior  to  naturaliza- 
tion a  report  must  be  made  to  the  Imperial  Chancellor;  if  he  raises  objec- 
tions, naturalization  does  not  take  place.  [The  text  of  section  8  of  the  law 
referred  to  in  the  section  just  quoted  is  as  follows :  "1.  If  he  is  legally  com- 
petent in  accordance  with  the  laws  of  his  former  home  or  would  be  legally 
competent  in  accordance  with  the  laws  of  Germany ;  or  if  the  application  is 
made  by  his  legal  representative  or  with  the  latter's  consent  in  accordance 
with  the  second  sentence  of  paragraph  2  of  section  7.  2.  If  he  has  led  a  blame- 
less life.     *     *     *  "] 

"Sec.  2.51,  Citizenship  is  not  lost  by  one  who  before  acquiring  foreign  citizen- 
ship has  secured  on^application  the  written  consent  of  the  competent  authori- 
ties of  his  home  State  to  retain  his  citizenship.  Before  this  consent  is  given 
the  German  consul  is  to  be  heard. 

"The  Imperial  Chancellor  may  order,  with  the  consent  of  the  Federal 
Council,  that  persons  who  desire  to  acquire  citizenship  in  a  specified  foreign 
country,  may  not  be  granted  the  consent  provided  for  in  paragraph  2." 

Under  section  13,  a  German  residing  in  a  foreign  country,  of  which  he  had 
become  a  naturalized  citizen  or  subject,  could  reacquire  German  citizenship 
without  returning  to  Germany.  Under  section  25,  he  could  retain  bis  German 
citizenship,  notwithstanding  the  fact  that  he  became  a  naturalized  citizen  or 
subject  of  a  foreign  country  in  which  he  resided.  Apparently,  this  could  be 
done  without  the  knowledge  of  tlie  competent  authorities  of  the  foreign  state. 

For  the  text  of  this  important  act,  see  8  American  Journal  of  International 
Law  Supplement  (1014)  217-227.  For  an  analysis  of  the  act,  see  Richard  W. 
Flournoy's  article  entitled  "Observations  on  the  New  German  Law  of  Nation- 
ality," 8  American  Journal  of  International  Law  (1914)  477-486;  also  an 
editorial  comment  on  the  German  Imperial  and  State  Citizenship  Law,  9 
American  Journal  of  International  Law  (1915)  939-942. 


158  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   PEACE       (Parti 

born  out  of  Her  Majesty's  dominions  of  a  father  being  a  British  sub- 
ject may,  if  of  full  age,  and  not  under  any  disability,  make  a  declaration 
of  alienage  in  manner  aforesaid,  and  from  and  after  the  making  of 
such  declaration  shall  cease  to  be  a  British  subject. 

5.  From  and  after  the  passing  of  this  Act,  an  alien  shall  not  be  en- 
titled to  be  tried  by  a  jury  demedietate  linguae,  but  shall  be  triable  in 
the  same  manner  as  if  he  were  a  natural-bom  subject. 

EXPATRIATION. 

6.  Any  British  subject  who  has  at  any  time  before,  or  may  at  any 
time  after  the  passing  of  this  Act,  when  in  any  foreign  state  and  not 
under  any  disability  voluntarily  become  naturalized  in  such  state,  shall  _ 
from  and  after  the  time  of  his  so  having  become  naturalized  in  such 
foreign  state,  be  deemed  to  have  ceased  to  be  a  British  subject  and 
be  regarded  as  an  alien:    Provided — 

(1)  That  where  any  British  subject  has  before  the  passing  of  this 
Act  voluntarily  become  naturalized  in  a  foreign  state  and  yet. is  de- 
sirous of  remaining  a  British  subject,  he  may,  at  any  time  within  two 
y;ears  after  the  passing  of  this  Act,  make  a  declaration  that  he  is  de- 
sirous of  remaining  a  British  subject,  and  upon  such  declaration  here- 
in-after referred  to  as  a  declaration  of  British  nationality  being  made, 
and  upon  his  taking  the  oath  of  allegiance,  the  declarant  shall  be  deem- 
ed to  be  and  to  have  been  continually  a  British  subject;  with  this  quali- 
fication, that  he  shall  not,  when  within  the  limits  of  a  foreign  state  in 
which  he  has  been  naturalized,  be  deemed  to  be  a  British  subject,  un- 
less he  has  ceased  to  be  a  subject  of  that  state  in  pursuance  of  the  laws 
thereof,  or  in  pursuance  of  a  treaty  to  that  effect. 


WILLIAMS'  CASE. 

(Circuit  Court  of  the  United  States,  D.  Connecticut,  1799.     Wharton's  State 
Trials,  652,  Fed.  Cas.  No.  17,708.)  12 

On  the  trial,  it  was  admitted  on  the  part  of  Williams,  that  he  had 
committed  the  facts  alleged  against  him  in  the  indictment,  but^  in 
his  defence,  he  offered  to  prove  that,  in  the  year  1792,  he  received 
from  the  Consul-General  of  the  French  Republic,  a  warrant,  appoint- 
ing him  third  lieutenant,  on  board  the  Jupiter,  a  French  seventy-four 
gun  ship;  that,  pursuant  to  this  appointment,  he  went  on  board  the 
Jupiter,  and  took  the  command  to  which  he  was  appointed ;  that  the 
Jupiter  soon  after  sailed  for  France,  and  arrived  at  Rochefort,  in 
France,  in  the  autumn  of  the  same  year ;  that  at  Rochefort  he  was 
duly  naturalized  in  the  various  Bureaux  in  that  place,  the  same  autumn, 
renouncing  his  allegiance  to  all  other  countries,  particularly  to  Ameri- 
ca^ and  taking  an  oath  of  allegiance  to  the  Republic  of  France,  all  ac- 

i2Tbe  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Ch.  2)  NATIONALITY  159 

cording  to  the  laws  of  said  republic ;  that  immediately  after  said  natu- 
ralization he  v^as  duly  commissioned  by  the  Republic  of  France  appoint- 
ing him  a  second  lieutenant  on  board  aJFrench  frigate  called  the  Char- 
ont ;  and  that  before  the  ratification  of  the  treaty  of  amity  and  com- 
merce between  the  United  States  and  Great  Britain,  he  was  duly  com- 
missioned by  the  French  Republic  a  second  lieutenant  on  board  a  seven- 
ty-four gun  ship,  in  the  service  of  said  republic ;  and  that  he  has  ever 
continued  under  the  government  of  the  French  Republic  down  to  the 
present  time,  and  the  most  of  said  time  actually  resident  in  the  do- 
minions of  the  French  Republic ;  that  during  said  period  he  was  n_ot_ 
jesident  jn  the  United  States  more  than  six  months,  which  was  in  the 
year  1796,  when  he  came  to  tliis  country  for  the  purpose  merely  of 
visiting  his  relations  and  friends;  that,  for  about  three  years  past, 
he  has  been  domiciliated  in  the  island  of  Guadaloupe,  within  the  do- 
minions of  the  French  Republic,  and  has  made  that  place  his  fixed  habi- 
tation, without  any  design  of  again  returning  to  the  United  States  for 
permanent  residence.  The  attorney  for  the  district  conceded  the 
above-mentioned  statement  to  be  true ;  but  objected  that  it  ought  not  to 
be  admitted  as  evidence  to  the  jury,  because  it  could  have  no  operation 
in  law  to  justify  the  prisoner  in  committing  the  facts  alleged  against 
him  in  the  indictment.  This  question  was  argued  on  both  sides  by  Mr. 
Pierpont  Edwards  for  the  United  States,  and  Mr.  David  Daggett  for 
the  prisoner. 

Judge  Law  (District  Judge)  expressed  doubts  as  to  the  legal  opera- 
tion of  the  evidence ;  and  gave  it  as  his  opinion,  that  the  evidence, 
and  the  operation  of  law  thereon,  be  left  to  the  consideration  of  the 
jury. 

Judge  Ellsworth,  the  Chief  Justice  of  the  United  States,  stated 
his  views  nearly  in  the  following  language : 

The  common  law  of  this  country  remains  the  same  as  it  was  before 
the  Revolution.  The  present  question  is  to  be  decided  by  two  great 
principles ;  one  is,  that  all  the  members  of  civil  community  are  bound 
to_  each  other  bj  compact.  The  other  is,  that  one  of  the  parties  to 
this  compact  cannot  dissolve  it  by  his  own  act.  The  compact  between 
our  community  and  its  members  is,  that  the  community  will  protect 
its  members;  and  on  the  part  of  the  members,  that  they' Will  at  all 
times  be  obedient  to  the  laws  of  the  community,  and  faithful  in  its 
defence.  This  compact  distinguishes  our  government  from  those  which 
are  founded  in  violence  or  fraud.  It  necessarily  results,  that  the 
members  cannot  dissolve  this  compact,  without  the  consent  or  default 
of  Jhe  community.  There  has  been  here  no  consent — no  default.  De- 
fault is  not  pretended.  Express  consent  is  not  claimed ;  but  it  has  been 
argued,  that  the  consent  of  the  community  is  implied  by  its  policy — 
its  conditions,  and  its  acts. 

In  countries  so  crowded  with  inhabitants  that  the  means  of  subsist- 
ence are  difficult  to  be  obtained,  it  is  reason  and  policy  to  permit  emi- 


160  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME  OP  PEACE       (Part  1 

gration.     But  our  policy  is  different;    for  our  countn/  is  but  sparsely 
settled,  and  we  have  no  inhabitants  to  spare. 

Consent  has  been  argued  from  the  condition  of  the  country ;  because 
we  were  in  a  state  of  peace.  But  though  we  were  in  peace  the  war 
had  commenced  in  Europe.  We  wished  to  have  nothing  to  do  with  aJ^ 
the  war;  but  the  war  would  have  something  to  do  with  us.  It  has 
been  extremely  difficult  for  us  to  keep  out  of  this  war;  the  progress 
of  it  has  threatened  to  involve  us.  It  has  been  necessary  for  our 
government  to  be  vigilant  in  restraining  our  own  citizens  from  those 
acts  which  would  involve  us  in  hostilities.  The  most  visionary  writers 
on  this  subject  do  not  contend  for  the  principle  in  the  unlimited  ex- 
tent, that  a  citizen  may  at  any  and  at  all  times  renounce  his  own  and 
join  himself  to  a  foreign  country.  Consent  has  been  argued  from  the 
acts  of  our  own  government,  permitting  the  naturalization  of  foreign- 
ers. When  a  foreigner  presents  himself  here,  and  proves  himself  to  be 
of  a  good  moral  character,  well  affected  to  the  Constitution  and  Gov- 
ernment of  the  United  States,  and  a  friend  to  the  good  order  and  happi- 
ness of  civil  society,  if  he  has  resided  here  the  time  prescribed  by  law, 
we  grant  Him  the  privilege  of  a  citizen.  We  do  not  inquire  what. his 
relation  is  to  his  own  country;  we  have  not  the  means  of  knowing,  and 
the  inquiry  would  be  indelicate;  we  leave  him  to  judge  of  that.  If  he 
embarrasses  himself  by  contracting  contradictory  obligations,  the 
fault  and  the  folly  are  his  own.  But  this  implies  no  consent  of  the 
governme_nt_,  that  our  own  citizens  should  expatriate  themselves. 
Therefore,  it  is  my  opinion  that  these  facts  which  the  prisoner  offers  to 
prove  in  his  defence,  are  totally  irrelevant;  they  can  have  no  operation 
in  law;  and  the  jury  ought  not  to  be  embarrassed  or  troubled  with 
them;  but  by  the  constitution  of  the  court  the  evidence  must  go  to  the 
jury.     *     *     * 

The  prisoner  was  accordingly  found  guilt}'-,  lined  and  imprisoned. ^^ 

^3  See  the  very  learned  note  in  which  Dr.  Wharton  traces  the  doctrine  from 
its  promulgation  in  Williams"  Case,  and  its  fluctuations  until  its  final  recogni- 
tion. "At  last  in  Shanks  v.  Dupont,  3  Pet.  242,  7  L.  Ed.  666  (1830),  the  long 
circuit  of  doubts  and  reservations  was  closed,  and  the  court  found  itself  back 
again  at  the  position  of  Williams'  Case,  that  allegiance  without  mutual  con- 
sent is  indissolulile."    Wharton's  State  Tibials  (1849)  p.  655. 

From  the  "historical  review  of  the  principal  discussions  in  the  federal 
courts  on  this  interesting  subject  in  American  jurisprudence,  the  better  opin- 
ion would  seem  to  be,  that  a  citizen  cannot  nenoimce  his  allegiance  to  the 
United  States  without  the  permission  of  government,  to  be  declared  by  law; 
and  that,  as  there  is  no  existing  legislative  regulation  on  the  cas^  the  rule 
of  the  English  common  law  remains  unaltered."  2  Kent's  Commentaries, 
p.  49. 

''Proclamation  of  the  Prince  Regent,  July  24,  1814,  Cockburn's  Nation- 
ality, 77: 

"  'A  proclamation  by  the  Prince  Regent,  of  the  24th  July,  especially  directed 
against  America,  after  prohibiting  all  natural-born  subjects  of  His  Majesty 
from  serving  in  the  ships  and  armies  of  the  United  States,  and  charging  all 
such  persons  at  once  to  quit  such  service,  proceeds  as  follows: 

"  'And  whereas  it  has  been  further  represented  to  us  that  divers  of  our  natu- 
ral-born subjects  as  aforesaid  have  been  induced  to  accept  Letters  of  Natural- 


Ch.2)  NATIONALITY  161 


MACKENZIE  V.  HARE  et  al. 

(Supreme  Court  of  California,  1913.    165  Cal.  776,  134  Pac.  713,  L.  R.  A.  1916D, 
127,  Ann.  Cas.  1915B,  261.) 

Shaw,  J.  Application  in  this  court  for  a  writ  commanding  defend- 
ants, as  members  of  the  board  of  election  commissioners  of  the  city 
and  county  of  San  Francisco,  to  register  the  plaintiff  as  a  qualified  vot- 
er  of  said  city  and  county. 

The  plaintiff  was  born  and  ever  since  has  resided  in  the  state  of 
California.  On  August  14,  1909,  being  then  a  resident  and  citizen  of 
this  state  and  of  the  United  States,  she  was  lawfully  married  to  Gordon 
Mackenzie,  a  native  and  subject  of  the  kingdom  of  Great  Britain.  He 
had  resided  in  California  prior  to  that  time,  still  resides  here  and  it  is 
his  intention  to  make  this  state  his  permanent  residence.  He  has  not 
become  naturalized  as  a  citizen  of  the  United  States  and  it  does  not  ap- 
pear that  he  intends  to  do  so.  Ever  since  their  marriage  the  plaintiff 
and  her  husband  have  lived  together  as  husband  and  wife.  On  Jan- 
uary 22,  1913,  she  applied  to  the  defendants  to^be  registered  as  a  voter. 
She  was  then  over  the  age  of  twenty-one  years  and  had  resided  in  San 
Francisco  for  more  than  ninety  days. 

Registration  was  refused  to  her  on  the  ground  that  by  reason  of  her 
marriage  to  Gordon  Mackenzie,  a  subject  of  Great  Britain,  she  there- 
upon took  the  nationality  of  her  husband  and  ceased  to  be  a  citizen  of 
the  United  States.  The  soundness  of  this  objection  is  the  question  to  be 
decided. 

The  qualifications  necessarv^  to  entitle  a  person  to  the  privilege  of 
suffrage  and  the  right  of  registration  as  a  voter  in  this  state  are  fixed, 
declared  and  controlled  by  section  1  of  article  H  of  the  state  Con- 
stitution as  amended  on  October  10,  1911.  The  purpose  of  the  amend- 
ment was  to  extend  the  privilege  of  suffrage  to  women.  The  portion  of 
the  section  upon  which  the  decision  of  this  case  depends  is  the  opening 
clause,  giving  the  privilege  of  suffrage  to  "every  native  citizen  of  the 
United  States,"  who  possesses  the  other  qualifications  mentioned  in  the 
subsequent  parts  of  the  section.  It  declares  that  persons  having  the 
qualifications  stated  shall  "be  entitled  to  vote  at  all  elections."     As  it 

ization  or  Certificates  of  Citizenship  from  tlie  said  United  States  of  America, 
vainly  supposing  that  by  such  letters  or  certificates  they  are  discharged  from 
that  duty  and  allegiance  which,  as  our  natural-born  subjects,  they  owe  to  us: 
Now  we  do  hereby  warn  all  such  our  natural-born  subjects,  that  no  such  let- 
tors  of  Naturalization  or  Certificates  of  Citizenship  do,  or  can,  in  any  manner 
discharge  our  natural-born  subjects  of  the  allegiance,  or  in  any  degree  alter 
the  duty  which  they  owe  to  us,  their  natural  sovereign.     *     ♦     * 

"  'Moreover,  that  all  such,  our  subjects,  as  aforesaid,  who  have  voluntarily 
entered,  or  shall  enter,  or  voluntarily  continue  to  serve  on  board  of  any  sucli 
ships  of  war,  or  in  the  land  forces  of  the  said  United  States  of  America,  at 
enmity  with  us,  are,  and  will  be,  guilty  of  high  treason.'  '  Freeman  iSuow's 
Cases  and  Opinions  on  International  Law,  215,  note  (1893). 
ScoiT  Int. Law — li 


IG2  RIGHTS   AND   DUTIES   OF  NATIONS   IN   TIME   OF   PEACE       (Part  1 

vt  is  admitted  that  the  plaintiff  possesses  all  the  other  qualifications  re- 

,  ^    quired,  the  sole  question  presented  is  whether  or  not,  upon  the  facts 

we  have  stated,  she  is  a  "native  citizen  of  the  United  States."    If  she 

comes  within  that  definition  she  is  entitled  to  registration  as  demanded. 

She  was  a  citizen  of  the  United  States  prior  to  her  marriage  to  Mac- 
kenzie^ No  event  affecting  her  status  as  a  citizen,  except  said  marriage, 
has  occurred  since  that  time.  She  therefore  still  remains  a  citizen  of 
the  United  States  unless  she  has  lost  her  citizenship  by  her  marriage 
with  an  unnaturalized  resident  alien.  Hauenstein  v.  Lynham,  100  U.  S. 
484,  25  L.  Ed.  628. 

The  status  of  persons  as  citizens  or  aliens,  respectively,  is  controlled 
entirely  by  the  Constitution  of  the  United  States  and  the  acts  of  Con- 
gress passed  in  pursuance  thereof.  We  must  look  solely  to  them  to 
ascertain  whether  or  not  the  plaintiff  is  a  citizen  and  as  such  a  voter 
entitled  to  registration.  And  in  determining  their  meaning  and  effect 
the  state  courts  are  bound  by  the  interpretation  put  upon  them  by  the 
courts  of  the  United  States. 

Prior  to  any  legislation  on  the  subject  by  Congress  there  was  some 
uncertainty  and  conflict  of  avithority  concerning  the  right  of  expatria- 
tion. The  question  first  arose  in  1795,  in  Talbot  v.  Janson,  3  U.  S. 
(Dall.)  133,  162,  1  L.  Ed.  540,  where  Iredell,  J.,  discusses  it  at  length, 
stating  his  conclusion  to  be  that  a  citizen  could  not  denationalize  him- 
self without  the  consent  of  his  government.  The  other  justices  ex- 
pressed no  opinion  on  the  point.  Similar  views  were  stated  in  Shanks 
V.  Dupont  (1830)  3  Pet.  246,  7  L.  Ed.  666;  Inglis  v.  Sailor's  Snug  Har- 
bor (1830)  3  Pet.  101,  125,  7  L.  Ed.  617;  and  in  United  States  v.  Gillies 
(1815)  Pet.  C.  C.  161,  Fed.  Cas.  No.  15,206.  In  Shanks  v.  Dupont, 
supra,  the  court  said,  per  Story,  J. :  "The  general  doctrine  is,  that  no 
persons  can,  by  any  act  of  their  own,  without  the  consent  of  their 
government,  put  off  their  allegiance,  and  become  aliens."  And  on 
this  ground  it  was  held  that  the  marriage  of  a  woman  citizen  with  an 
alien  did  not  change  her  allegiance  to  the  United  States.  There  was, 
at  that  time,  no  legislation  permitting  expatriation.  In  Stoughton  v. 
Taylor,  2  Paine,  C.  C.  661,  Fed.  Cas.  No.  7558,  it  is  said  that  the  right  of 
expatiuation  is  fundamental  and  inherent.  To  the  same  effect  see  Als- 
berry  v.  Hawkins,  39  Ky.  (9  Dana)  178,  33  Am.  Dec.  546.  Other  state 
courts  were  of  the  same  opinion.  The  denial  of  the  right  of  voluntary 
expatriation  was  somewhat  inconsistent  with  the  laws  of  the  United 
Sta.tes  providing  for  the  naturalization  of  foreigners,  the  first  of  which 
was  enacted  in  1790.  1  U.  S.  Stats.  103.  The  question  was  practically 
set  at  rest  by  the  Act  of  July  27,  1868  (15  U.  S.  Stats.  223 ;  U.  S.  Rev. 
Stats.  §  1999),  The  preamble  thereof  declares  that  the  right  of  ex- 
patriation  is  a  natural  and  inherent  right  of  all  people.  The  body  of  the 
act  declares  further  that  any  decision  of  any  officer  of  the  government 
py  denying,  restricting,  or  impairing  the  right  of  expatriation  is  "inconsis- 
tent.  with  the  fundamental  principles  of  this  government."    This  lan- 

ScoTT  Int.Law 


Ch.  2)  NATIONALITY  163 

guage  seems  to  be  but  little  more  than  a  legislative  declaration  of  na- 
tional policy.  But  it  clearly  is  operative  in  this,  that  it  gives  the  con- 
sent of  the  national  government  to  the  expatriation  of  any  citizen  by  his 
or  her  voluntary  act.  If  such  consent  of  the  nation  is  essential  to  a 
valid  expatriation,  this  law  is  evidence  thereof.  The  absolute  right  of 
expatriation  is  now  recognized  as  the  settled  doctrine  of  this  country. 
*BF6wne"v7Dexter766"Cal.  40,  4  Pac.  913;  Kane  v.  McCarthy,  63  N. 
C.  302 ;  Burton  v.  Burton,  *40  N.  Y.  359,  1  Abb.  Dec.  271 ;  Kelly  v. 
Owen,  74  U.  S.  496,  19  L.  Ed.  283;  In  re  Look  Tin  Sing  (C.  C.)  21 
Fed.  905.  In  the  case  last  cited  the  court  says :  "The  United  States 
recognize  the  right  of  every  one  to  expatriate  himself  and  choose  anoth- 
er country."  In  view  of  the  contention  to  be  hereafter  mentioned,  it  is 
to  be  noticed  that  this  case  was  decided  after  the  adoption  of  the  Four- 
teenth Amendment. 

The  first  legislation  by  Congress  in  regard  to  the  status  of  married 
women  as  citizens  was  the  act  of  1855.  10  U.  S.  Stats.  604;  U.  S.  Rev. 
Stats.  §  1994.  Section  2  is  as  follows :  "That  any  woman  who  might 
lawfully  be  naturalized  under  the  existing  laws,  married,  or  who  shall 
be  married  to  a  citizen  of  the  United  States,  shall  be  deemed  and  taken 
to  be  a  citizen."  In  the  Revised  Statutes  the  words  "and  taken"  are 
omitted.  The  effect  of  this  statute  is  that  every  alien  woman  who 
marries  a  citizen  of  the  United  States  becornes  perforce  a  citizenTier^ 
self,  without  the  formality  of  naturalization  and  regardless  of  her  wish 
in  that  respect.  Kane  v.  McCarthy,  supra ;  Kelly  v.  Owen,  supra.  It 
is  not  entirely  certain  that,  under  our  state  Constitution,  such_  citizen^ 
ship  would  entitle  such  foreign-born_woman  to  vote.  Our  Constitu- 
tion confers  that  privilege  only  on  three  classes  of  persons:  (1)  Na- 
Jive  citizens ;  (2)  those  who  became  citizens  under  the  Treaty  of  Quere- 
taro,  or,  as  it  is  commonly  called,  the  Treaty  of  Guadalupe-Hidalgo; 
and,  (3)  naturalized  citizens.  An  alien  woman  who  marries  a  citizen 
thereby  herself  becomes  a  citizen,  but  there  may  be  doubt  if  she  thereby 
becomes  a  naturalized  citizen  within  the  meaning  of  the  Constitution. 
This  is,  of  course,  a  question  not  here  involved.  We  mention  it  only 
to  call  attention  to  the  distinction  and  to  make  it  clear  that  we  have 
not  decided  it. 

The  act  of  1855  determines  the  citizenship  of  an  alien  woman  who 
marries  a  citizen.  We  have  in  this  case  the  converse  of  the  proposi- 
tion; the  effect  of  the  marriage  of  a  native  female  citizen  to  a  man 
who  is  not  a  citizen,  but  is  a  subject  of  some  other  country.  In 
Pequignot  v.  Detroit  (C.  C.  1883)  16  Fed.  211,  Judge  Brown,  after- 
ward Justice  of  the  United  States  supreme  court,  decided  that  an  alien 
woman  who  had  become  a  citizen  under  the  aforesaid  act  of  1855  by 
marrying  a  citizen,  and  who  was  divorced  from  that  husband  and  there- 
after married  an  unnaturalized  alien,  lost  her  citizenship  by  the  last 
marriage  and  again  became  an  alien,  although  both  she  and  her  last 
husband  continued  to  reside  in  this  country  with  the  intention  of  re- 
maining.    In  Ruckgaber  v.  Moore  (C.  C.)   104  Fed.  947,  decided  in 


164  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OP   PEACE       (Part  1 

1900,  the  court  held  that  a  native  woman  who  marries  a  French 
citizen  and  thereafter  resides  with  him  in  France  thereby  loses  her 
American  citizenship  and  becomes  a  citizen  of  France,  adding,  how- 
ever, that  to  accomplish  this  result  she  must,  by  residence  abroad,  or 
other  equivalent  act,  express  her  intention  to  renounce  her  former 
citizenship  by  her  marriage.  Similar  views  were  expressed  in  Trimbles 
V.  Harrison,  40  Ky.  (1  B.  Mon.)  147.  In  Comitis  v.  Parkerson  (C.  C.) 
56  Fed.  556,  decided  in  1893,  the  court  held  that  a  native  born  woman 
who  had  married  an  alien  subject  of  Italy,  permanently  residing  in  the 
United  States  and  intending  to  continue  therein,  did  not  thereby 
lose  her  citizenship  but  remained  a  citizen  of  this  country.  The  court 
said  that  the  power  to  declare  how  the  right  of  expatriation  should 
be  exercised,  as  well  as  that  of  naturalization,  was  exclusively  in  Con- 
gress, that  expatriation  could  not  take  place  without  the  consent  of 
the  United  States,  and  that  "Congress  has  made  no  law  authorizing 
any  implied  renunciation  of  citizenship."  It  was  mainly  on  this  ground 
that  the  court  rested  its  conclusion,  although  it  was  also  said  that  in 
the  absence  of  any  law  of  Congress  as  to  the  method  of  expatriation, 
it  could  not  be  said  to  take  place,  unless  it  was  manifested  by  a.  re- 
moval from  this  country  and  a  residence  elsewhere.  See,  also.  Beck 
V.  McGillis,  9  Barb.  (N,  Y.)  49;  Shanks  v.  Dupont,  supra;  Jennes  v. 
Landes  (C.  C.)  84  Fed.  74;  Kreitz  v.  Behrensmeyer,  125  111.  197,  198, 
17  N.  E.  232,  8  Am.  St.  Rep.  349. 

When  an  alien  and  a  citizen  intermarry,  they  not  infrequently 
return  to  reside,  either  temporarily  or  permanently,  to  the  country 
of  the  alien  spouse,  thereby  giving  rise  to  questions  concerning  their 
rights  as  citizens  or  aliens  of  the  respective  countries,  from  which 
there  have  ensued  international  disputes  to  be  discussed  and  settled  by 
diplomatic  correspondence  between  the  United  States  and  the  foreign 
country.  The  fact  that  the  courts  of  this  country  have  held  variant 
opinions  on  some  phases  of  the  subject  had  caused  some  perplexity 
in  the  state  department  and  like  diversity  of  opinions  had  appeared 
from  time  to  time  in  the  correspondence  of  that  department.  All  the 
courts  have  agreed,  how'ever,  that  the  entire  subject  of  naturalization 
and  expatriation,  including  the  method  by  which  each  might  or  could 
be  accomplished  and  manifested,  is  a  matter  within  the  exclusive 
control  of  Congress.  Under  these  conditions,  the  United  States  Sen- 
ate, on  April  13,  1906,  passed  a  joint  resolution  for  the  appointment 
of  a  commission  to  "examine  into  the  subjects  of  citizenship  of  the 
United  States,  expatriation,  and  protection  abroad,"  and  make  a  re- 
port with  proposals  for  legislation  thereon.  In  June,  1906,  the  House 
Committee  on  Foreign  Affairs,  to  which  this  resolution  had  been  re- 
ferred, requested  the  Secretary  of  State  to  select  three  men  connected 
with  the  State  Department,  familiar  with  the  subject,  to  investigate 
and  make  tlie  desired  report  and  recommendations.  In  pursuance  of 
this  request  Hon.  Elihu  Root,  then  Secretary  of  State,  directed  Mr. 
James  B.  Scott,  Solicitor  for  the  Department  of  State;  Mr.  David 


Ch.  2)  NATIONALITY  165 

Jayne  Hill,  then  Minister  to  The  Netherlands,  and  Mr.  Gaillard  Hunt, 
Chief  of  the  Passport  Bureau,  to  make  an  inquiry,  report  and  pro- 
posals for  legislation,  as  requested.  These  gentlemen  proceeded  and 
on  December  18,  1906,  they  made  an  elaborate  and  exhaustive  report 
of  538  pages,  with  recommendations  for  legislation  covering  all  the 
phases  of  the  subject  except  that  of  naturalization,  which  was  already 
provided  for.  With  this  document  before  it,  Congress  framed  an 
act  which  became  a  law  on  March  2,  1907.  34  U.'  S'.'Stat's.'"  1228^ (iT 
S.  Comp.  St.  §§  3958-3964).  This  act  now  c^trols  the  subject  re- 
ferred to,  including  -that  involved  in  this  case.  Section  3  thereof  is 
practically  decisive  of  the  case  before  us  and  it  is  as  follows : 

"That  any  American  wornan__who  jnarri^s_  a  foreigner  shall  take 
thp  nationality  of  her  husband.  At  the  termination  of  the  marital  re- 
lation she  may  resume  her  American  citizenship,  if  abroad,  by  regis=~ 
tering  as  an  American  citizen  within  one  year  with  a  consul  of  the 
United  States,  or  by  returning  to  reside  in  the  United  States,  or,  if 
residing  in  the  United  States  at  the  termination  of  the  marital  relation, 
by  continuing  to  reside  therein." 

There  is  no  escape  from  the  conclusion  that,  under  the  provisions  oi 

-this  section,  the  plaintiff  in  this  case,  when  she  married  Gordon  Mac- 
kenzie, a  British  subject,  thereupon  took  the  nationality  of  her  husband 

^nd  ceased  to  be  a  citizen  of  the  United  States.  Just  as  an  alien  wo- 
man who  marries  a  citizen  becomes  a  citizen  herself,  whether  she 
wishes  it  or  not,  as  the  cases  we  have  cited  declare,  so  a  female  citizen 
who  marries  an  alien  becomes  herself  an  alien,  whether  she  intends 
that,  result  as  the  consequence  of  her  marriage  or  not.  She  must  bow 
to  the  will  of  the  nation  as  expressed  by  the  act  of  Congress.  Owing  to 
the  possibility  of  international  complications,  the  rule. has  generally 
prevailed,  from  considerations  of  policy,  that  the  wife  should  not  have 
a  citizenship,  nor  an  allegiance,  different  from  that  of  her  husband. 
The  section  aforesaid  was  intended  to  put  this  general  doctrine  into 
statutory  form.  When  after  Congress  by  this  act  had  declared  that 
her  marriage  to  an  alien  would  accomplish  her  expatriation,  she  there- 

•  after  married  an  alien,  she  is  conclusively  presumed  to  have  in- 
tended thereby  to  renounce  her  citizenship  of  the  United  States  and  be- 
come a  subject  of  Great  Britain. 

It  is  suggested  that  the  object  of  the  act,  as  expressed  in  its  title, 
was  to  legislate  solely  for  the  protection  of  citizens  abroad  and  there- 
fore that  it  should  not  be  construed  to  apply  to  women  who  marry 
here  and  continue  to  reside  in  this  country,  or  who  marry  an  alien 
permanently  residing  in  this  country.  As  has  been  stated  in  reciting 
the  origin  of  the  act,  such  persons  frequently  remove  to  the  country  of 
which  the  husband  is  a  subject,  or  to  other  foreign  countries.  It  was 
the  obvious  purpose  to  provide  a  rule  which  should  govern  in  cases  of 
that  kind.  Furthermore,  the  language  of  the  section  shows  that  it 
contemplates  that  an  American  woman  included  within  its  terms  will 
in  some  cases  reside  in  the  United  States  after  contracting  the  marriage 


166  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

with  the  alien,  and  that  it  intends  that  she  shall  continue  to  have 
the  nationality  of  her  husband  during  such  residence  here,  so  long  as 
the  marriage  relation  continues.  The  interpretation  contended  for 
would  be  contrary  to  this  provision,  and  therefore  it  is  not  ■permissible. 

Plaintiff's  counsel  also  contends  that  the  act  of  Congress  is  contrary 
to  the  opening  sentence  of  the  Fourteenth  Amendment  to  the  Con- 
stitution' of  the  United  States  declaring  that  "all  persons  born  or 
naturalized  in  the  United  States,  and  subject  to  the  jurisdiction  there- 
of, are  citizens  of  the  United  States  and  of  the  state  wherein  they 
reside."  In  support  of  this  position  they  cite  In  re  Look  Tin  Sing, 
supra,  and  United  States  v.  Wong  Kim  Ark,  169  U.  S.  649,  18  Sup. 
Ct.  456,  42  Iv.  Ed.  890.  In  the  first  mentioned  case,  which  was  decided 
in  1884,  Justice  Field  of  the  United  States  Supreme  Court,  writing 
the  decision  for  the  Circuit  Court  of  the  United  States  for  the  District 
of  California,  held  that  a  person  born  in  the  United  States,  of  Chinese 
parents  residing  therein  at  the  time  of  his  birth  and  not  members  of 
the  diplomatic  force  of  China,  was  a  native  citizen  of  the  United 
States  and  was  not  subject  to  the  act  of  Congress  forbidding  the  re- 
entry into  this  country  of  Chinese  who  had  'returned  temporarily  to 
China,  except  where  they  had  obtained  a  certificate  allowing  such  re- 
turn. This  decision  declares  that  a  native-bom  person  of  any  race  is 
a  citizen,  under  the  aforesaid  provision  of  the  Fourteenth  Amendment, 
and  it  follows  the  familiar  rule  that  such  person  remains  a  citizen 
so  long  as  he  chooses,  provided  he  does  no  act  which  under  our  laws 
will  have  the  effect  of  renouncing  or  forfeiting  such  citizenship.  The 
Chinese  Exclusion  Act,  it  was  held,  did  not  affect  the  right  of  citizen- 
ship. But  the  quotation  we  have  already  given  from  this  case  shows 
that  the  court  did  not  intend  to  hold  and  did  not  hold  that  the  Four- 
teenth Amendment  forbids  expatriation,  or  takes  from  Congress  the 
power  to  legislate  concerning  it.  In  United  States  v.  Wong  Kim  Ark, 
the  same  question  was  involved  and  the  same  conclusion  was  reached. 
In  the  course  of  its  very  elaborate  discussion  of  the  proposition  that 
the  Fourteenth  Amendment  affirms  the  "ancient  and  fundamental  rule 
of  citizenship  by  birth  within  the  territory"  (169  U.  S.  693,  18  Sup.  Ct. 
473,  42  L.  Ed.  890)  the  court  said  (169  U.  S.  703,  18  Sup.  Ct.  477, 
42  L.  Ed.  890) :  "The  power  of  naturalization,  vested  in  Congress 
by  the  Constitution,  is  a  power  to  confer  citizenship,  not  a  power  to 
take  it  away."  From  this  remark  it  is  argued  that  a  native-born  citizen 
cannot,  since  the  adoption  of  that  amendment,  renounce  his  citizenship. 
But  this  by  no  means  follows :  The  court  in  the  quoted  sentence  was 
speaking  of  the  power  of  Congress  to  deprive  a  person  of  his  citizen- 
ship without  his  consent  and  for  no  sufficient  or  reasonable  cause.  In 
the  next  paragraph  of  the  opinion  the  court  says  (169  U.  S.  704,  18 
Sup.  Ct.  478,  42  L.  Ed.  890) : 

"Upon  the  facts  agreed  in  this  case,  the  American  citizenship  which 
Wong  Kim  Ark  acquired  by  birth  within  the  United  States  has  not 
been  lost  or  taken  away  by  anything  happening  since  his  birth.     No 


Ch.  2)  NATIONALITY  167 

doubt  he  might  himself,  after  coming  of  age,  renounce  this  citizen- 
ship, and  become  a  citizen  of  the  country  of  his  parents  or  of  any  other 
country." 

Thus  the  opinion  relied  on  itself  recognizes  and  declares  that  citizen- 
ship  may  be  renounced,  notwithstanding  the  provisions  of  the  Four- 
teenth Amendment.  As  we  have  held  that  the  act  of  the  plaintiff  here 
in  marrying  an  alien  was  in  effect  a  renunciation  of  her  citizenship,  it 
follows  that  she  is  not  prevented  from  committing  this  act  of  ex- 
patriation by  the  aforesaid  provision  of  the  Fourteenth  Amendment. 

We  think  it  advisable  to  state  here  that  the  question  of  the  effect 
of  the  marriage  of  a  native  female  citizen  to  an  alien,  where  such 
marriage  had  taken  place  before  the  passage  of  the  act  of  1907  afore- 
said, is  a  question  not  involved  in  this  case.  It  is  not  therefore  to  be 
deemed  as  a  decision  upon  the  question  whether  the  section  of  the  act 
of  Congress  above  quoted  was  applicable  to  and  operated  upon  citizens 
of  the  United  States  who  were  at  that  time  married  to  alien  husbands. 
From  what  we  have  said  the  conclusion  is  clear  that  the  plaintiff  here 
is  not  now  a  citizen  of  the  United  States  within  the  meaning  of  the 
act  of  Congress  above  quoted,  and  as  that  act  controls  the  question  of 
her  citizenship,  and  her  right  to  vote  is  made  by  our  Constitution,  as 
amended  in  1911,  dependent  upon  her  status  as  a  citizen  of  the  United 
States,  and  does  not  exist  unless  she  is  such  citizen,  she  is  not  en- 
titled jbo  the  exercise  of  the  privilege  of  suffrage_and  cannot  demand^ 
registration  as  a  voter. 

It  is  ordered  that  the  writ  applied  for  be  denied. 

Beatty,  C.  J.,  AngeIvLotti,  Lorigan,  Sloss,  Melvin,  and  Hen- 
SHAW,  JJ.,  concurred. 

Rehearing  denied.^* 


STOECK  V.  PUBLIC  TRUSTEE. 

(Chancery  Division,  1921.    37  Times  Law  Rep.    666.) 

Mr.  Justice  Russell  gave  judgment  in  this  action,  which  was  before 
him  on  April  14  and  15.  In  it  plaintiff'  asked  for  a  declaration-JJiat 
he  was  not  a  Jjcrman  natioiial  within  the  Treaty  of  P*cace  Order,  or 
within  Part  X,  section  4,  of  the  Treaty  of  Peace  with  Germany. 

The  plaintiff  was  born  in  1872  in  Rhenish  Prussia.  In  1895  he 
went  to  live  in  Belgium.  In  1896  he  was  discharged  from  his  Prus- 
sian nationality,  and  thereby  he  became  discharged  from  his  Imperial 
G:erman_nationality.  In  November,  1896,  he  came  to  live  in  England, 
and  he  lived  here  until  the  outbreak  of  war,  but  he  was  never  natural- 
ized  as  a  British  subject.    In  1916  he  wasinterned,  and  then  he  brought 

1^  The  principal  case,  as  involving  a  federal  question,  came  before  the  Su- 
preme Court  of  the  United  States,  and  the  decision  of  the  lower  court  was 
affirmed,  in  Mackenzie  v.  Hare,  230  U.  S.  299,  36  Sup.  Ct.  106,  60  L.  Ed.  297, 
Ann.  Cas.  1916E,  645  (1915). 


t1 


168  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   PEM:B       (Part  1 

an  action  for  a  declaration  that  he  was  not  an  enemy  subject.  That 
action  was  compromised  in~7Movember,  1917,  upon  the  terms  that 
certain  shares  belonging  to  the  plaintiff  should  be  sold  and  the  proceeds 
paid  into  the  plaintift''s  bank.  These  shares  were  sold  for  £2,722,  but 
before  the  proceeds  were  paid  the  plaintiff'  was  sent,  in  March,  1918, 
to  Holland  as  a  civilian  prisoner,  and  thence  he  went  to  Germany.  As 
hejthereupon  became  an  enemy  within  the  Trading  with  the  Enemy 
Acts,  a  vesting  order  was  made  on  the  application  of  the  Board  of 
Trade  on   June  15,  1918,  and  the  £2,722  was  paid  to  the  Custodian. 

A^ter  the  Treaty  of  Peace  came  into  force  on  January  10,  1920, 
the  plaintiff  brought  this  actfon  against  the  Public  Trustee  as  Cus- 
todian and  the  Attorney-General  for  the  declaration  and  for  payment_ 
to  him  of  the  moneys  in  the  hands  of  the  Custodian. 

At  the  hearing  it  was  admitted  that  these  moneys  should  not  be 
affected  by  this  action,  as  they  must  abide  the  Order  in  Council  to 
be  made  under  section  5  of  the  Trading  with  the  Enemy  (Amendment) 
Act,  1914,  at  the  tennination  of  the  war,  which  Order  had  not  yet  been 
made,  but  the  declaration  was  required  to  enable  the  plaintiff  to  deal 
with  the  balance  at  his  bank  and  with  certain  furniture. 

The  question  to  be  decided  was  whether  a  denationalized  German 
-J    who  had  not  acquired  any  other  nationalfty  was  "Tor  the  purposes  of 
the  Treaty  of   Peace  a  German   national,   and,  incidentally,  whether 
English  law  recognized  the  condition  of  a  "stateless  man" — i.   e.,  a 
man  of  no  nationality.     *     *     * 

Mr.  Justice  Russell,  after  stating  the  facts,  said  that  the  Solicitor- 
General  had  contended  that  he  ought  not  to  construe  the  Treaty  of 
Peace,  which  was  a  matter  for  the  contracting  Powers.  But  under 
the  Treaty  of  Peace  Act,  1919,  and  the  Treaty  of  Peace  Order,  1919, 
certain  sections  of  the  Treaty,  including  the  sections  in  question, 
were  made  part  of  the  municipal  law  of  England,  and  he  could  not 
accede  to  that  contention.  The  action  must  fail  as  regards  the  money 
in  the  hands  of  the  Custodian,  but  the  plaintiff  required  the  declara- 
tion asked  for,  as  otherwise  he  could  not  deal  with  the  bank  balance 
or  the  furniture,  which,  if  he  were  a  German  national,  were  charged 
under  section  1  (16)  of  the  Treaty  of  Peace  Order,  and  under  section 
1  (17)  could  not  be  dealt  with  under  penalty  of  fine  and  imprison- 
ment. The  question  was  whether  on  January  10,  1920,  when  the 
Treaty  of  Peace  came  into  force,  the  plaintiff  was  a  German  national. 

The  plaintiff  said  that  he  had  been  divested  of  his  German  nationaUty 
and  that  he  had  acquired  no  other  nationality,  and  that  he  was  a  "state- 
less person."  The  defendants  said  that  a  "stateless  person"  was  not 
recognized  by  English  law,  that  the  words  of  the  Treaty  of  Peace  must 
be  construed  according  to  English  law ;  and  that,  although  he  had  been 
divested  of  his  German  nationality,  the  plaintiff  was  by  English  law 
a  German  national.  Two  authorities  had  been  cited  to  him.  Ex  parte 
Weber,  32  The  Times  L.  R.  312,  [1916]  1  A.  C.  421,  and  Rex  v. 
Superintendent  of  Vine- Street  Police  Station,  32  The  Times  L.  R.  3, 


Ch.  2)  NATIONALITY  169 

[1916]  1  K.  B.  268.  In  Ex  parte  Weber,  supra,  it  was  decided  by  the 
Court  of  Appeal  and  affirmed  by  the  House  of  Lords  that  a  denational- 
ized German  who  had  been  interned  was  not  entitled  to  a  writ  of 
habeas  corpus,  on  the  ground  that  it  was  not  clear  that  he  had  so 
completely  lost  his  German  nationaHty  as  to  be  entitled  to  the  writ. 
In  the  House  of  Lords  great  stress  was  laid  on  the  liabiHty  of  the  ap- 
plicant as  a  stateless  person  to  military  service  under  the  German 
Military  Law  of  1874,  but  it  was  not  brought  to  tTie  knowledge  of  the 
House  that  this  law  had  been  replaced  by  a  law  of  1913,  which  imposed 
the  liability  not  only  on  stateless  persons  but  on  the  descendants  of 
former  German  nationals  who  were  possessed  of  other  nationality. 
Rex  V.  Superintendent  of  Vine- Street  Police  Station,  supra,  only  fol- 
lowed Ex  parte  Weber,  supra,  and  he  did  not  think  that  these  cases 
decided  the  question. 

Two  German  lawyers  had  been  called  before  him,  and  from  their 
evidence  he  was  satisfied  that  by  German  law  the  plaintiff  had  ab- 
solutely lost  his  German  nationality,  that  he  was  by  German  law  a 
__stateless  person,  and  that  he  had  no  obligation  to  Germany,  except 
that  with  other  classes  of  persons  he  might  be  liable  to  military  serv- 
ice were  he  of  military  age. 

Was  the  condition  of  a  "stateless  person"  to  be  recognized?  Difter- 
ent  opinions  of  authorities  on  international  law  had  been  cited  to 
him.  Hall  and  Oppenheim  recognized  the  condition,  while  an  eminent 
German  writer  held  the  contrary  opinion.  It  was  clear,  however,  that 
by  German  municipal  law  the  condition  was  recognized,  as  the  witness- 
es had  proved  to  him.  Was  it  recognized  by  English  municipal  law? 
No  authority  had  been  cited  to  him  except  some  expressions  in  the 
judgment  of  Lord  Justice  Phillimore  in  Ex  parte  Weber,  [1916]  1 
K.  B.  at  page  283,  in  which  he  said : 

"It  is  going  a  step  further  to  say  that  any  country  has  recognize  J 
that  a  man  can  shake  off  his  position  as  a  national  of  the  country  in 
which  he  was  born  without  acquiring  the  duties  and  responsibilities  of 
a  national  of  some  other  country.  This  applicant  might  long  ago  have 
procured  nationalization  in  this,  country.  He  has  not  done  so,  and,  as 
at  present  advised,  I  think  that  he  must  be  taken,  as  far  as  this  coun- 
try is  concerned,  to  be  still  retaining  his  nationality  of  origin." 

In  the  House  of  Lords  the  point  was  specifically  kept  open.  The 
Solicitor-General  cited  section  14  of  the  British  Nationality  and  Sta- 
tus of  Aliens  Act,  1914,  as  supporting  his  contention.  This  reproduced 
section  4  of  the  Naturalization  Act,  1870,  and  although  by  subsection 
(1)  only  a  person  who  was  also  a  subject  of  a  foreign  State  could 
divest  himself  of  his  British  nationality,  by  subsection  (2)  any  person 
born  out  of  his  Majesty's  dominions  might  make  a  declaration  of 
alienage  and  cease  to  be  a  British  subject.  If  a  person  who  w-as  not 
a  subject  of  a  foreign  State  made  the  declaration  under  subsection  (2), 
he  became  an  alien  though  not  a  subject  of  another  State.  For  in- 
stance, the  illegitimate  child  of  an  Englishman  born  in  Germany  would 


170  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

not  be  a  German  national.  Neither  the  British  Nationality  and  Status 
of  Aliens  Act,  1918,  nor  the  Aliens  Restriction  (Amendment)  Act, 
1919,  threw  light  on  the  question. 

The  definition  of  "former  enemy  alien"  in  section  15  of  the  latter 
Act,  which  was  passed  on  December  23,  1919,  after  the  Treaty  of 
Peace  had  been  signed,  but  before  it  came  into  force,  might  include 
denationalized  Germans.  It  was  not  surprising  that  authority  could 
not  be  found,  as  the  question  was  seldom  of  importance,  but  it  would 
appear  that  a  "stateless  person"  might  be  an  alien,  and  he  (his  Lord- 
ship) held  that  a  "stateless  person"  was  not  unknown  to  English  law. 
Whether  a  person  was  a  national  of  any  country  must  be  decided  by 
the  municipal  law  of  that  country.  It  might  be  said  that  a  person, 
was  to  be  "deemed  to  be"  or  "treated  as"  a  national  of  another  country, 
but  he  could  not  be  made  such  a  national.  By  German  law  the  plain- 
tiff was  not  a  German  national  and  he  could  not  be  made  one  by  Eng- 
lish law.  He  would  make  a  declaration  that  the  plaintiff  was  not  a 
German  nati^orial  within  the  Treaty  of  Peace  Order,  1919,  or  within 
the  sections  of  the  Treaty  of  Peace  that  were  set  out  in  the  schedule 
to  the  Order.  As  the  plaintiff'  had  failed  in  one  part  of  his  claim  and 
succeeded  in  the  other  there  would  be  no  order  as  to  costs. 


In  re  CHAMBERLAIN'S  SETTLEMENT. 
(Chancery  Division,  1921.    37  Times  L.  Rep.  966.) 
See  post,  p.  478,  for  a  report  of  the  case. 


FASBENDER  v.  ATTORNEY  GENERAL. 

(Chancery  Division,  1921.    38  Times  L.  Rep.  114.) 
See  post,  p.  480,  for  a  report  of  the  case. 


CASE  OF  LUCIAN  ALIBERT. 

(Superior  Military  Court  at  Toulon,  1852.     Foreign  Relations  of  the  United 
States,  1873,  Part  1,  vol.  2,  p.  1301.) 

Alibert  was  a  native  of  Digne,  Basses  Alpes.  He  went  to  the  United 
States  in  1838,  at  the  age  of  18,  and,  after  going  through  the  usual 
formalities,  was  naturalized  in  1846.  In  1852  he  returned  to  France  and 
was  arrested  while  on  a  visit  to  Dignes  as  an  "insoumis"  of  1839,  and 
pleaded  his  naturalization  as  exempting  him  from  service.  The  United 
States  consul  at  Marseilles  applied  to  the  general  commanding  the  dis- 
trict, who  informed  him  that  Alibert's  claim  was  founded  in  right,  if 
his  naturalization  was  really  dated  in  1846,  as  his  naturalization  would 
incapacitate  him  from  serving  in  the  French  army,  and  the  date  of  it 
would  prove  that  more  than  three  years  had  elapsed  since  the  off'ense 
was  committed,  (that  being  the  period  of  limitation  required  by  the  pe- 
nal code,)  and  that  he  could  not  consequently  be  proceeded  against  for 
insubordination.  Nevertheless  Alibert  was  brought  before  a  "conseil 
■de  guerre"  at  Marseilles,  and  condemned  to  a  month's  imprisonment. 


Ch.  2)  NATIONALITY  *     171 

The  cause  was  then  brought  by  appeal  before  a  superior  military 
court  at  Toulon,  and  the  sentence  quashed,  thereby  establishing  Ali- 
bert's  immunity  from  conscription.^^ 

IB  "Article  17.    The  following  lose  their  French  nationality: 

"1.  A  Frenchman  naturalized  in  a  foreign  country  or  who  acquires  foreign 
nationality  at  his  own  request  l»y  the  effect  of  ihe  law. 

"If  he  is  still  suhDecTlo JEhe  obligations  of  military  service  in  the  active 
army,  his  naturalization  abroad  will  not  work  a  loss  of  his  French  nationality 
unless  it  has  been  authorized  by  the  French  Government."  Article  17,  Law  of 
Nationality  of  June  26,  1889.  Report  on  the  subject  of  Citizenship,  Expatria- 
tion, and  Protection  Abroad,  Document  326,  H.  R.  59th  Congress,  2d  Session, 
1906,  p.  318. 

The  subject  or  citizen  owes  permanent  allegiance  to  his  country,  and.  in 
return,  his  country  owes  protection.    Allegiance  and  protection  are  correlative. 

While  the  government  of  a  country  should  protect  its  subjects  or  citizens 
in  all  quarters  of  the  globe,  great  difficulty  is  often  experienced  in  securing  to 
naturalized  subjects  or  citizens  protection  which  would  be  accorded  as  of 
right  to  the  native  born.  This  is  especially  the  case  with  naturalized  sub- 
jects or  citizens  upon  their  return  to  their  country  of  origin.  Some  leading 
cases  of  this  kind  are  stated  in  the  following  note : 

Hausding's  Case  (1885),  in  which  it  was  held  that  children  born  in  the  Unit- 
ed States  of  alien  parents,  and  never  dwelling  in  the  United  States,  are  not 
citizens  thereof  (3  Moore's  Digest,  278);  Emden's  Case  (18S5)  held  that 
children  born  abroad  of  citizens  of  the  United  States,  and  continuing  to  reside 
abroad,  are  not  citizens  thereof  unless  they  elect  to  become  such  on  coming 
of  age  (3  Moore's  Digest,  466)  ;  and  in  A  Prussian  Subject's  Case  (1875), 
it  was  held  by  the  Attorney  General  that  under  the  treaty  of  1868  between  the 
United  States  and  the  North  German  Confederation,  a  Prussian  by  birth, 
naturalized  in  the  United  States,  is  presumed  to  have  renounced  his  American 
citizenship  if  he  returns  to  Prussia,  and  resides  there  two  years  (3  Moore's 
Digest,  539). 

In  the  United  States  there  are  two  classes,  native  and  naturalized  citizens. 
These  possess  equal  rights  under  the  law,  Osborn  v.  U.  S.  Bank,  9  Wheat.  738, 
827,  6  L.  Ed.  204  (1824),  but  by  the  Constitution  only  the  native-born  are 
eligible  to  the  presidency  and  vice-presidency.  "It  seems  to  have  grown  into 
a  rule,"  says  Attorney  General  Bradford,  in  1794,  "that  a  nation  ought  not  to 
interfere  in  the  causes  of  its  citizens  brought  before  foreign  tribunals,  ex- 
cepting in  the  case  of  a  refusal  of  justice — palpable  and  evident  injustice — or  a 
violation  of  rules  and  forms,"  and  in  Murray  v.  Charming  Betsy,  2  Cr.  64, 
120  (1804),  Chief  Justice  Marshall  says:  "The  American  citizen  who  goes 
into  a  foreign  country,  although  he  owes  local  and  temporary  allegiance  to 
that  country,  is  yet,  if  he  performs  no  other  act  changing  his  condition,  en- 
titled to  the  protection  of  his  own  government;  and  if,  without  the  violation 
of  any  municipal  law,  he  should  be  oppressed  unjustly,  he  would  have  a  right 
to  claim  that  protection,  and  the  interposition  of  the  American  Government 
in  his  favor  would  be  considered  as  a  justifiable  interposition.  But  his 
situation  is  completely  changed  where,  by  his  own  act,  he  has  made  himself 
the  subject  of  a  foreign  power." 

After  speaking  of  the  protection  the  citizen  enjoys  in  the  United  States,  Mr. 
Justice  Miller  says:  "Another  privilege  of  a  citizen  of  the  United  States  is 
to  demand  the  care  and  protection  of  the  federal  government  over  his  life, 
liberty  and  property  when  on  the  high  seas  or  within  the  jurisdiction  of  a 
foreign  government.  Of  this  there  can  be  no  doubt,  nor  that  the  right  de- 
pends upon  his  character  as  a  citizen  of  the  United  States."  Slaughter  House 
Cases,  16  Wall.  36.  79,  21  L.  Ed.  394  (1872).  See,  also,  the  case  of  The 
Leghorn  Seizures,  ^7  Ct.  of  CI.  224.  235,  236,  241  (1892).  And  in  De  Bode  v. 
Reg.,  3  H.  L.  C.  449,  465  (1851),  Lord  Chancellor  Truro  held:  "It  is  admitted 
law  that  if  the  subject  of  a  country  is  spoliated  by  a  foreign  government  he  is 
entitled  to  obtain  redress  from  the  foreign  government  through  the  means  of 
his  own  government.  But  if,  from  weakness,  timidity,  or  any  other  cause  on 
the  part  of  his  own  government,  no  redress  is  obtained  from  the  foreigner,  then 
he  has  a  claim  against  his  own  country." 

The  alien,  as  well  as  his  property,  enjoys  an  equal  protection  before  the 


172  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

law;  for  the  temporary  allegiance  which  he  owes  demands  in  return  protec- 
tion from  the  govermneut.  To  what  extent  this  protection  is  enjoyed  the 
above  cases  show.  If  the  alien  temporarily  or  permanently  residing  in  foreign 
parts  is  not  reciprocafly  well  treated,  the  government  whose  citizens  are  in- 
jured may  expel  or  place  under  corresponding  disability  citizens  of  the  of- 
fending nation  within  its  limits,  or  it  may  demand  through  diplomatic  chan- 
nels their  protection.  In  case  of  the  native-born,  this  is  a  perfect  right; 
in  case  of  naturalized  citizens  the  right  is  perfect  as  against  third  parties, 
but  imperfect  as  against  the  mother  country,  while  in  cases  of  mere  "declara- 
tion of  intention"  and  incomplete  naturalization  the  claim  is  of  the  slightest. 
The  following  cases  will  perhaps  serve  to  make  this  clear: 

Wagner's  Case,  1883  (3  Moore's  Digest,  627),  to  the  effect  that  a  foreign 
minor  who  emigrates  to  and  becomes  naturalized  in  the  United  States,  may 
on  returning  to  his  original  state  be  forced  to  perform  military  service  due  at 
time  of  his  original  departure,  but  that  it  would  be  highly  unreasonable  to 
exact  the  performance  of  a  service  or  duty  non-existent  or  inchoate  at  the 
time  of  his  emigration. 

Koszta's  Case,  1853  (Cockburn's  Nationality,  118),  was  one  of  imperfect 
naturalization,  in  that  the  claimant  had  merely  declared  his  intention  to  be- 
come a  citizen,  but  had  not  as  yet  fully  complied  with  final  requirements  of  the 
law.  It  appears  that  he  was  a  Hungarian  refugee  of  1848-49 :  that  he  was 
domiciled  in  the  United  States;  that  he  had  previously  declared  his  intention 
to  become  an  American  citizen  ;  that  he  was  temporarily  absent  from  the 
United  States;  that  he  was  furnished  with  a  consular  traveling  pass,  stating 
that  he  was  entitled  to  American  protection. 

The  subsequent  proceedings  are  thus  described  bv  Mr.  Justice  Miller,  in  Re 
Neagle,  135  U.  S.  1,  64,  10  Sup.  Ct.  658,  34  L.  Ed.  55  (1890) :  "One  of  the  most 
remarkable  episodes  in  the  history  of  our  foreign  relations,  and  which  has  be- 
come an  attractive  historical  incident,  is  the  case  of  Martin  Koszta,  a  native  of 
Hungary,  who,  though  not  fully  a  naturalized  citizen  of  the  United  States, 
liad  in  due  form  of  law  made  his  declaration  of  intention  to  become  a  citizen. 
While  in  Smyrna  he  was  seized  by  command  of  the  Austrian  consul-general 
at  that  place  and  carried  on  board  the  Hussar,  an  Austrian  vessel,  where  he 
was  held  in  close  confinement.  Captain  Ingraham,  in  command  of  the  Ameri- 
can sloop  of  war  St.  Louis,  arriving  in  port  at  that  critical  period,  and  ascer- 
taining that  Koszta  had  with  him  his  naturalization  papers,  demanded  his 
surrender  to  him,  and  was  compelled  to  train  his  gvms  upon  the  Austrian  ves- 
sel before  his  demands  were  complied  with.  It  was,  however,  to  prevent  blood- 
shed, agreed  that  Koszta  should  be  placed  in  the  hands  of  the  French  consul, 
subject  to  the  result  of  diplomatic  negotiations  between  Austria  and  the  Unit- 
ed States.  The  celebrated  correspondence  between  Mr.  Marcy,  Secretary  of 
State,  and  Chevalier  Hiilsemann,  the  Austrian  minister  [charge  d'affaires] 
at  Washington,  which  arose  out  of  this  affair  and  resulted  in  the  release  and 
restoration  to  liberty  of  Koszta  attracted  a  great  deal  of  public  attention,  and 
the  position  assumed  by  Mr.  Marcy  met  the  approval  of  the  country  and  of 
Congress,  who  voted  a  gold  medal  to  Captain  Ingraham  for  his  conduct  in  the 
affair."  For  the  diplomatic  correspondence  between  the  two  governments,  see 
2  Wharton's  Digest,  §§  175,  198. 

Koszta's  Case-  excited  at  the  time  and  since  much  unfavorable  and  some 
favorable  criticism  and  comment,  for  which  see  Hall's  Int.  Law,  251-2-54  and 
Calvo,  vol.  II,  pp.  45-47,  66,  142-145.  Professor  Pomeroy's  position  is  as 
follows:  "The  discussion  between  the  two  cabinets  was  long  and  somewhat 
acrimonious.  P>ut  I  believe  that  Mr.  Marcy  conducted  the  correspondence  with 
so  much  ability  that  he  convinced  even  his  opponents.  *  *  *  Now,  although 
Koszta's  crime  was  a  political  one,  *  *  *  j  ggg  qq  reason  why  the  same 
doctrine  would  not  apply  to  the  case  of  any  otlier  offender.  Doubtless,  in- 
deed, our  government  would  not  have  exhibited  as  much  alacrity,  in  case  the 
man  had  been  a  common  murderer  or  thief,  but  they  certainly  might  have 
done  so  with  the  same  I'esult."     International  Law,  254. 

Tousig's  Case,  1854  (Lawrence's  Wheaton,  1863,  929),  was  simple:  he  was  an 
Austrian  by  birth  who  had  acquired  a  domicile  in  the  United  States,  and 
although  unnaturalized,  had  been  improperly  furnished  with  an  American  pass- 
port. On  his  return  to  Austria  he  was  arrested  and  charged  with  offences 
committed  before  emigrating  from  Austria.  The  difference  between  the  two 
cases  is  sufliciently  plain.     Tousig  voluntarily  subjected  himself  to  Austrian 


Ch.  3)  TERRITORY  OF   STATES  173 

CHAPTER  III 
TERRITORY  OF  STATES 


ACTION  I.— MODES  OF  ACQUISITION 
I.  Discovery  and   Occupation 


In  re  DELAGOA  BAY. 
GREAT  BRITAIN  v.  PORTUGAL. 

(Award  qf  the  President  of  the  French  Republic,  1875.    Martens,  3  Nouveau 
Becueil  G6n6ral  de  Trait6s[2(i  Series  ]' 517.)  1 

We,  Marie  Edme  Patrice  Maurice  de  MacMahon,  Duke  of  Magenta, 
Marshal  of  France,  President  of  the  French  RepubHc,  declare  that  by 
reason  of  the  powers  which  have  been  conferred  on  the  President  of 
the  French  Republic  as  expressed  in  the  terms  of  the  protocol  signed 
^IXisbon  the  25th  of  September,  1872,  by.  which  the  Government  of 
Her  Majesty  the  Queen  of  Great  Britain  and  of  Ireland  and  that  of 
His  Majesty  the  King  of  Portugal,  have  agreed  to  submit  to  the  Presi- 
dent of  the  French  Republic,  to  be  settled  by  him  finally  and  without 
appeal,  the  controversy  which  has  been  pending  since  1823  in  relation 
to  the  possession  of  tlie-'territories  of  Tembe  and  of  Maputo  and  of  the 
Islands  of  Inyack  and  the  Jilephants  situated  upon  Delagoa  or  Lorenzo 
Marquez  Bay  on  the  east  coast  of  Africa; 

In  view  of  the  cases  submitted  to  the  arbitrator  by  the  counsel  of 
the  two  parties  on  the  15th  of  September,  1873,  and  the  counter  cases 
also  submitted  by  them  the  14th  and  15th  of  September,  1874; 

In  view  of  the  letters  of  His  Excellency  the  Ambassador  of  England 
and  of  the  Minister  of  Portugal  at  Paris  dated  February  8,  1875 ; 

The  commission  created  March  10,  1873,  in  order  to  study  the  papers 
and  documents  respectively  submitted  having  made  known  to  us  the 
result  of  their  examination ; 

Whereas,  the  controversy  which  it  is  intended  to  settle  by  the  cases 
submitted  to  the  arbitrator  and  finally  by  the  letters  cited  above  of  the 
representatives  of  the  two  parties  at  Paris,  deals  with  the  right  to 
the  following  territories,  namely: 

jurisdiction ;  Koszta  wisely  kept  awaj'  from  the  fatherland,  and  was  appre- 
hended by  Austrian  authorities  in  neutral  territory.  In  Tousig's  case  the 
American  Government  neither  should  nor  did  offer  protection;  in  Koszta's 
case  it  protected  Koszta's  "inchoate  rights" — a  phrase  much  employed  by  Ful- 
ler, C.  J.,  in  Boyd  v.  Thayer,  14.3  U.  S.  135.  12  Sup.  Ct.  375,  36  L.  Ed.  103 
(1891) — against  violation  in  a  neutral  port.  If  Koszta  had  returned  to  Aus- 
tria, the  cases  would  have  been  on  all  fours. 

1  See,  also,  66  British  and  Foreign  State  Papers,  554. 


174  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   PEACE       (Part  1 

1.  The  territory  of  Tembe,  bounded  on  the  north  by  the  river  Es- 
pirito  Santo  or  EngHsh  river,  and  by  the  river  Lorenzo  Marquez  or 
Dundas,  on  the  west  by  the  Lebombo  Mounts,  on  the  south  and  east 
by  the  river  Maputo  and  from  the  mouth  of  this  river  to  that  of  the 
Espirito  Santo  by  the  shore  of  the  bay  of  Delagoa  or  Lorenzo  Mar- 
quez: 

2.  The  territory  of  Maputo,  in  which  are  contained  the  peninsula 
and  island  of  Inyack,  also  the  Island  of  the  Elephants,  and  which  is 
bounded  on  the  north  by  the  shore  of  the  Bay,  on  the  west  by  the  river 
Maputo  from  its  mouth  to  the  parallel  26°  30'  of  south  latitude,  on  the 
south  by  the  same  parallel  and  on  the  east  by  the  sea. 

Whereas,  the  Delagoa  or  Lorenzo  Marquez  Bay  was  discovered  in 
the  16th  century  by  Portuguese  mariners  and  in  the  17th  and  18th 
centuries  Portugal  occupied  several  places  on  the  north  shore  of  this 
bay  and  upon  the  island  of  Inyack,  of  which  the  Islet  of  the  Elephants 
is  a  dependancy ; 

Whereas,  since  its  discovery,  Portugal  has  continuously  claimed 
rights  of  sovereignty  over  the  whole  of  the  Bay  and  the  bordering  terri- 
tories, as  well  as  the  exclusive  right  to  trade  there,  and  furthermore, 
supported  this  claim  by  force  of  arms  against  the  Dutch  about  1732, 
and  against  the  Austrians  in  1781 ; 

Whereas  the  acts  by  which  Portugal  has  supported  its  claim  have 
never  given  rise  to  any  counterclaim  on  the  part  of  the  government  of 
the  United  Provinces,  and  in  1782  these  claims  were  tacitly  accepted  by 
Austria  following  diplomatic  arrangements  exchanged  between  that 
power  and  Portugal  ; 

Whereas,  in  1817  England  herself  didnot  dispute  the  right  of  JPortu- 
gal  when  she  concludedi'^with  the  Government  of  His  Most  Faithful 
Majesty  the  Convention  of  July  28  for  the  suppression  of  the  slave 
trade ;  and  in  fact  the  second  article  of  this  Convention  should  be  inter- 
preted in  the  sense  that  it  designates  as  part  of  the  possessions  of  the 
Crown  of  Portugal  the  whole  of  the  Bay  to  which  is  applied  indifferent- 
ly either  the  names  Delagoa  or  Lorenzo  Marquez ; 

Whereas,  in  1822  the  Government  of  Her  Britannic  Majesty,  when 
it  delegated  to  Captain  Owen  the  hydrographic  survey  of  Delagoa 
Bay  and  of  the  rivers  which  empty  therein,  commended  him  to  the  good 
offices  of  the'  Portuguese  Government ; 

WhereaSj  J_f  the  accidental  weakening  of  Portuguese  authority  in 
this  quarter  had  created  in  1823  an  error  in  the  mind  of  Captain  Owen 
and  made  him  in  good  faith  treat  as  really  independent  of  the  Crown 
of  Portugal  the  native  chiefs  of  the  territories  now  in  dispute,  never- 
theless the  agreements  concluded  by  him  with  those  chiefs  were  no  less 
contrary  to  the  rights  of  Portugal ; 

Whereas,  almost  immediately  after  the  sailing  of  the  English  ships, 
the  native  chiefs  of  Tembe  and  Maputo  renewed  their  allegiance  to  the 
Portuguese  officials,  thereby  themselves  attesting  that  they  had  not  had 
the  £pwer  to  enter  into  contracts; 


Ch.  3)  TERRITORY   OF   STATES  175 

Whereas,  the  Conventions  signed  byCaptain  Owen  and  the  natjye 
chiefs  of  Tembe  and  Maputo,  even  if  they  had  been  agreed  upon  be^ 
tween  parties  capable  of  contracting,  would  be  today  without  legal  ef- 
fect,_since  the  act  in  relation  to  Tembe  stipulated  essential  conditrohs 
which  have  not  been  executed,  and  the  act  concerning  Maputo,  conclud- 
ed for  a  limited  time,  was  not  renewed  after  the  expiration  of  this 
period : 

For  these  reasons  we  have  concluded  and, decided  that  the  claims  of 
the  Government  of  his  Faithful  Alajesty'fo^^he  territories  of  Tembe 
and  Maputo,  to  the  peninsula  of  Inyack  and  of  the  Elephants, _are  duly 
P£Oved  and  established. 

Versailles,  July  24,  1875. 

Mal.  De;  MacMahon  Due  de  Magenta.* 


JOHNSON  and  GRAHAM'S  LESSEE  v.  McINTOSH. 
(Supreme  Court  of  the  United  States,  1823.    8  Wheat.  543,  5  L.  Ed.  681.) 

Error  to  the  District  Court  of  Illinois. 

This  was  an  action  of  ejectment  for  lands  in  the  state  and  district 
of  Illinois,  claimed  by^  the  plaintiffs  under  a  purchase  and  conveyance 
from  the  Piankeshaw  Indians,  and  by  the  defendant,  under  a  grant 
from  the  United  States.  It  came  up  on  a  case  stated,  upon  which  there 
was  a  judgment  below  for  the  defendant.    c^K*'  /"^   .<'  . 

Chief  Justice  Marshall  deflvered  the  opinion  of  the  court.' 

The  plaintiffs  in  this  cause  claim  the  land  in  their  declaration 
mentioned,  under  two  grants,  purporting  to  be  made,  the  first  in 
1773,  and  the  last  in  1775,  by  the  chiefs  of  certain  Indian  tribes,  con- 
stituting the  Illinois  and  the  Piankeshaw  nations ;  and  the  question 
is,  whether  this  title  can  be  recognised  in  the  courts  of  the  United 
States?  The  facts,  as  stated  in  the  case  agreed,  show  the  authority; 
of  the  chiefs  who  executed  this  conveyance,  so  far  as  it  could  be  on  a^i-hc,v.,r^ 
given  by  their  own  peopk^  and  likewise  show,  that  the  particular 
tribes  for  whom  these  chiefs  acted  were  in  rightful  possession  of 
the  land  they  sold.  The  inquiry,  therefore,  is,  in  a  great  measure, 
confined  to  the  power  of  Indians  to  give,  and  of  private  individuals! 

to  receive,  a  title,  which  can  be  sustained  in  the  courts  of  this  coun-i  \Si^^ 
_  -J 

As  the  right  of  society  to  prescribe  those  rules  by  which  prop- 
erty may  be  acquired  and  preserved  is  not,  and  cannot,  be  drawn 
into  question;  as  the  title  to  lands,  especially,  is,  and  must  be,  ad- 
mitted, to  depend  entirely  on  the  law  of  the  nation  in  which  they 
lie ;   it  will  be  necessary,  in  pursuing  this  inquiry,  to  examine,  not 

2  For  a  further  recognition  and  application  of  principle  of  discovery  and  oc- 
cupation, see  the  Arbitral  Award  of  Victor  Emanuel  III  in  the  dispute  Ix'twoen 
Brazil  and  Great  lU-itain.  Kevue  Generale  de  Droit  International  Public,  ISd 
(1{)()4). 

3  The  statement  of  factis  and  parts  of  the  opinion  are  omitted. 


176  RIGHTS  AND   DUTIES   OF  NATIONS   IN  TIME  OF  PEACE       (Part  1 

simply  those  principles  of  abstract  justice,  which  the  Creator  of  all 
things  has  impressed  on  the  mind  of  his  creature  man,  and  which 
are  admitted  to  regulate,  in  a  great  degree,  the  rights  of  civilized 
nations,  whose  perfect  independence  is  acknowledged;  but  those 
principles  also  which  our  own  government  has  adopted  in  the  par- 
ticular case,  and  given  us  as  the  rule  for  our  decision. 

On  the  discovery  of  this  immense  continent,  the  great  nations  of 
E  rope  were  eager  to  appropriate  to  themselves  so  much  of  it  as 
they  could  respectively  acquire.  Its  vast  extent  offered  an  ample 
field  to  the  ambition  and  enterprise  of  all ;  and  the  character  and 
religion  of  its  inhabitants  afforded  an  apology  for  considering  them 
as  a  people  over  whom_  the  superior  genius  of  Europe  might  claim 
an  ascendency.  The  potentates  of  the  old  world  found  no  difficulty 
in  convincing  themselves,  that  they  made  ample  compensation  to 
the  inhabitants  of  the  new,  by  bestowing  on  them  civilization  and 
Christianity,  in  exchange  for  unlimited  independence.  But  as 
they  were  all  in  pursuit  of  nearly  the  same  object,  it  was  necessary;, 
in  order  to  avoid  conflicting  settlements,  and  consequent  war  with 
each  other,  to  establish  a  principle,  which  all  should  acknowledge 
as  the  law  by~which  the  right  of  acquisition,  which  they  all  asserted, 
should  be  regulated,  as  betweenTthemselves.  This  principle  was, 
that  discovery  gave  title_^  to  the  government  by  whose  subjects^ 
o"F"By  whose  authority,  it  was  made,  against  all  other  European 
governments,  which  title  might  be  consummated  by  possession. 
The  exclusion  of  all  other  Europeans,  necessarily  gave  to  the  na- 
tion making  the  discovery  the  sole  right  of  acquiring  the  soil  from 
the  natives,  and  establishing  settlements  upon  it.  It  was  a  right 
with  which  no  Europeans  could  interfere.  It  was  a  right  which 
all  asserted  for  themselves,  and  to  the  assertion  of  which,  by  others, 
all  assented.  Those  relations^  which  were  to  exist  between  the  dis; 
coverer  and  the  natives,  were  to  be  regulated  by  themselves.  The 
rights  thus  acquired  being  exclusive  no  other  power  could  interpose 
between  them. 

In  the  establishment  of  these  relations,  the  rights  of  the  original 
inhabitants  were,  in  no  instance,  entirely  disregarded;  but,  were, 
necessarily,  to  a  considerable  extent,  impaired.  They  were  admit- 
ted to  be  the  rightful  occupants  of  the  soil,  with  a  legal  as  well  as 
just  claim  to  retain  possession  of  it,  and  to  use  it  according  to  their 
own  discretion ;  but  their  rights  to  complete  sovereignty,  as  in- 
dependent nations,  were  necessarily  diminished,  and  their  power 
to^dispose  of  the  soil,  at  their  own  will,  to  whomsoever  they  pleased, 
was  denied  by  the  original  fundamental  principle,  that  discovery 
gave"  exclusive  title  to  those  who  made  it.  While  the  different 
nations  of  Europe  respected  the  right  of  the  natives,  as  occupants^ 
they  asserted  the  ultimate  dominion  to  be  in  themselves;  and 
claimed  and  exercised,  as  a  consequence  of  this  ultimate  dominion,  a 
power  to  grant  the   soil,   while  yet  in   possession  of  the   natives. 


Ch.  3)  TERRITORY   OP    STATES  177 

These  grants  have  been  understood  by  all,  to  convey  a  title  to 
the  grantees,  subject  only  to  the  Indian  right  of  occupancy. 

The  history  of  America,  from  its  discovery  to  the  present  day, 
proves,  we  think,  the  universal  recognition  of  these  principles. 
Spain  did  not  rest  her  title  solely  on  the  grant  of  the  Pope.  Her 
discussions  respecting  boundary,  with  France  with  Great  Britain, 
and  with  the  United  States,  all  show  that  she  placed  it  on  the  rights 
given  by  discovery.  Portugal  sustained  her  claim  to  the  Brazils  by  the 
same  title.  France,  also,  founded  her  title  to  the  vast  territories  she 
claimed  in  America  on  discovery.  *  *  *  The  States  of  Holland 
also  made  acquisitions  in  America,  and  sustained  their  right  on  the  com- 
mon principle  adopted  by  all  Europe.  *  *  *  The  claim  of  tlie 
Dutch  was  always  contested  by  the  English ;  not  because  they  question- 
ed the  title  given  by  discovery,  but  because  they  insisted  on  being  them- 
selves the  rightful  claimants  under  that  title.  Their  pretensions  were 
finally  decided  by  the  sword. 

•  No  one  of  the  powers  of  Europe  gave  its  full  assent  to  this  principle, 
more  unequivocally  than  England.  The  documents  upon  this  subject 
are  ample  and  complete.  So  early  as  the  year  1496,  her  monarch  grant- 
ed a  commission  to  the  Cabots,  to  discover  countries  then  unknown 
to  Christian  people,  and  to  take  possession  of  them  in  the  name  of  the 
king  of  England.  Two  years  afterwards,  Cabot  proceeded  on  this  voy- 
age, and  discovered  the  continent  o^  North  America,  along  which  he 
sailed  as  far  south  as  Virginia.  To  this  discovery,  the  English  trace 
their  title.  In  this  effort  made  by  the  English  government  to  acquire 
territory  on  this  continent,  we  perceive  a  complete  recognition  of  the 
principle  which  has  been  mentioned.  The  right  of  discovery  given  by 
this  commission,  is  confined  to  countries  "then  unknown  to  all  Christian 
people;"  and  of  these  countries,  Cabot  was  empowered  to  take  pos- 
session in  the  name  of  the  king  of  England.  Thus  asserting  a  right  to 
take  possession,  notwithstanding  the  occupancy  of  the  natives,  who 
were' heathens,  and,  at  the  same  time,  admitting  the  prior  title  of  any 
Christian  people  who  may  have  made  a  previous  discovery.  The 
same  principle  continued  to  be  recognized.     *     *     * 

Thus  has  our  whole  country  been  granted  by  the  crown,  while  in  the 
occupation  of  the  Indians.  These  grants  purport  to  convey  the  soil 
as  well  as  the  right  of  dominion  to  the  grantees.  In  those  governments 
which  were  denominated  royal,  where  the  right  to  the  soil  was^not  vest;; 
ed  in  individuals,  but  remained  in  the  crown,  or  was  vested  in  the 
colonial  government,  the  king  claimed  and  exercised  the  right  of 
granting  lands,  and  of  dismembering  the  government,  at  his  will.  The 
grants  made  out  of  the  two  original  colonies,  after  the  resumption  of 
their  charters  by  the  crown,  are  examples  of  this.  The  governments  of 
New  England,  New  York,  New  Jersey,  Pennsylvania,  Maryland,  and 
a  part  of  Carolina,  were  thus  created.  In  all  of  them  the  soil,  at  the 
Scott  Int. Law — 12 


178  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Parti 

time  the  grants  were  made,  was  occupied  by  the  Indians.  Yet  almost 
every  title  within  those  governments  is  dependent  on  these  grants.  In 
some  instances,  the  soil  was  conveyed  by  the  crown,  unaccompanied 
by  the  powers  of  government,  as  in  the  case  of  the  northern  neck  of 
Virginia.  It  has  never  been  objected  to  this,  nor  to  any  other  similar 
grant,  that  the  title  as  well  as  possession  was  in  the  Indians  when 
it  was  made,  and  that  it  passed  nothing  on  that  account. 

These  various  patents  cannot  be  considered  as  nullities ;  nor  can  they 
be  limited  to  a  mere  grant  of  the  powers  of  government.  A  charter 
intended  to  convey  political  power  only,  would  never  contain  words 
expressly  granting  the  land,  the  soil  and  the  waters.  Some  of  them 
purport  to  convey  the  soil  alone;  and  in  those  cases  in  which  the 
powers  of  government,  as  well  as  the  soil,  are  conveyed  to  individu- 
als, the  crown  has  always  acknowledged  itself  to  be  bound  by  the 
grant.     *     *     * 

Further  proofs  of  the  extent  to  which  this  principle  has  been  recog- 
nized, will  be  found  in  the  history  of  the  wars,  negotiations  and  treaties, 
which  the  different  nations,  claiming  territory  in  America,  have  car- 
ried on,  and  held  with  each  other.     *     *     * 

These  conflicting  claims  produced  a  long  and  bloody  war,  which  was 
terminated  by  the  conquest  of  the  whole  country  east  of  the  Mississippi. 
In  the  treaty  of  1763,  France  ceded  and  guarantied  to  Great  Britain, 
all  Nova  Scotia  or  Acadie,  and  Canada,  with  their  dependencies ;  and 
it  was  agreed,  that  the  boundaridfe  between  the  territories  of  the  two 
nations,  in  America,  should  be  irrevocably  fixed  by  a  line  drawn  from 
the  source  of  the  Mississippi,  through  the  middle  of  that  river  and  the 
Lakes  Maurepas  and  Ponchartrain,  to  the  sea.  This  treaty  expressly 
cedes,  and  has  always  been  understood  to  cede,  the  whole  country,  on 
the  English  side  of  the  dividing  line,  between  the  two  nations,  although 
a  great  and  valuable  part  of  it  was  occupied  by  the  Indians.  Great 
Britain,  on  her  part,  surrendered  to  France  all  her  pretensions  to  the 
country  west  of  the  Mississippi.  It  has  never  been  supposed,  that  she 
surrendered  nothing,  although  she  was  not  in  actual  possession  of  a 
foot  of  land.  She  surrendered  all  right  to  acquire  the  country;  and 
any  after  attempt  to  purchase  it  from  the  Indians,  would  have  been 
considered  and  treated  as  an  invasion  of  the  territories  of  France. 

By  the  20th  article  of  the  same  treaty,  Spain  ceded  Florida,  with  its 
dependencies,  and  all  the  country  she  claimed  east  or  south-east  of  the 
Mississippi,  to  Great  Britain.  Great  part  of  this  territory  also  was 
in  possession  of  the  Indians.  By  a  secret  treaty,  which  was  executed 
about  the  same  time,  France  ceded  Louisiana  to  Spain ;  and  Spain  has 
since  retroceded  the  same  country  to  France.  At  the  time  both  of  its 
.cession  and  retrocession,  it  was  occupied,  chiefly  by  the  Indians.  Thus, 
all  the  nations  of  Europe,  who  have  acquired  territory  on  this  conti- 
nent, have  asserted  Tri~tTiemselves,  and  have  recognized  in  others,  the 
exclusive  right  of  the  discoverer  to  appropriate  the  lands  occupied  by 

Scott  Int.Law 


Ch.  3)  TERRITORY  OP   STATES  179 

the  Indians.    Have  the  American  states  rejected  or  adopted  this  prin- 
ciple ? 

By  the  treaty  which  concluded  the  war  of  our  revolution,  Great  Brit- 
ain relinquished  all  claim,  not  only  to  the  government,  but  to  the 
"propriety  and  territorial  rights  of  the  United  States,"  whose  bounda- 
ries were  fixed  in  the  second  article.  By  this  treaty,  the  powers  of, 
government,  and  the  right  to  soil,  which  had  previously  been  in  Great 
Britain,  passed  definitively  to  these  states.  We  had  before  taken  posses- 
sion of  them,  by  declaring  independence;  but  neither  the  declaration 
of  independence,  nor  the  treaty  confirming  it,  could  give  us  more  than 
that  which  we  before  possessed,  or  to  which  Great  Britain  was  before 
entitled.  It  has  never  been  doubted,  that  either  the  United  States,  or 
the  several  states,  had  a  clear  title  to  all  the  lands  within  the  boundary 
lines  described  in  the  treaty,  subject  only  to  the  Indian  right  of  occu- 
2ancy,  and  that  the  exclusive  power  to  extinguish  that  right,  was 
vested    in    that    government    which    might    constftutionally    exercise 

1 4-  "i*        -K        'J* 

The  states,  having  within  their  chartered  limits  different  portions  of 
territory  covered  by  Indians,  ceded  that  territory,  generally,  to  the 
United  States,  on  conditions  expressed  in  their  deeds  of  cession,  which 
demonstrate  the  opinion,  that  they  ceded  the  soil  as  well  as  jurisdic- 
tion, and  that  in  doing  so,  they  granted  a  productive  fund  to  the  gov- 
ernment of  the  Union.  The  lands  in  controversy  lay  within  the  char- 
tered limits  of  Virginia,  and  were  ceded  with  the  whole  country  north- 
west of  the  river  Ohio.  This  grant  contained  reservations  and  stipula- 
tions, which  could  only  be  made  by  the  owners  of  the  soil ;  and  con- 
cluded with  a  stipulation,  that  "all  the  lands  in  the  ceded  territory,  not 
reserved,  should  be  considered  as  a  common  fund,  for  the  use  and  bene- 
fit of  such  of  the  United  States  as  have  become,  or  shall  become  mem- 
bers of  the  confederation,"  etc.,  "according  to  tlieir  usual  respective 
proportions  in  the  general  charge  and  expenditure,  and  shall  be  faith- 
fully and  bona  fide  disposed  of  for  that  purpose,  and  for  no  other  use 
or  purpose  whatsoever."  The  ceded  territory  was  occupied  by  nu- 
merous  and  warlike  tribes  of  Indians;  but  the  exclusive  right  of  the 
United  States  to  extinguish  their  title,  and  to  grant  the  soil,  has  never, 
we  believe,  been  doubted.     *     *     * 

The  United  States,  then,  have  unequivocally  acceded  to  that  great 
and  broad  rule  by  which  its  civilized  inhabitants  now  hold  this  country. 
They  hold,  and  assert  in  themselves,  the  title  by  which  it  was  acquired. 
They  maintain,  as  all  others  have  maintained,  that  discovery  gave  an 
exclusive  right  to  extinguish  the  Indian  title  of  occupancy,  either  by 
purchase  or  by  conquest ;  and  gave  also  a  right  to  such  a  degree  of 
sovereignty,  as  the  circumstances  of  the  people  would  allow  them  to 
exercise.  Tlie  power  now  possessed  by  the  government  of  the  United 
States  to  grant  lands,  resided,  while  we  were  colonies,  in  the  crown  or 
its  grantees.    The  validity  of  the  titles  given  by  either  has  never  been 


180  RIGHTS   AND   DUTIES  OF   NATIONS   IN  TIME   OP   PEACE       (Part  1 

.  questioned  in  our  courts.  It  has  been  exercised  uniformly  over  terri- 
toiy  in  possession  of  the  Indians.  The  existence  of  this  power  must 
negative  the  existence  of  any  right  which  may  conflict  with  and  control 
it.  An  absolute  title  to  lands  cannot  exist,  at  the  same  time,  in  different 
persons,  or  in  different  governments.  An  absolute,  must  be  an  exclu' 
sive  title,  or  at  least  a  title  which  excludes  all  others  not  compatible 
with  it.  All  our  institutions  recognise  the  absolute  title  of  the  croyvn, 
subject  only  to  the  Indian  right  of  occupancy,  and  recognise  the  abso- 
lute title  of  the  crown  to  extinguish  that  right.  This  is  incompatible 
with  an  absolute  and  complete  title  in  the  Indians.     *     *     * 

That  law  which  regulates  and  ought  to  regulate  in  general,  the  re- 
lations between  the  conqueror  and  the  conquered,  was  incapable  of  ap- 
plication to  a  people  under  such  circumstances.  The  resort  to  some 
new  and  dift'erent  rule,  better  adapted  to  the  actual  state  of  things,  was 
unavoidable.  Every  rule  which  can  be  suggested  will  be  found  to  be  at- 
tended with  great  difficulty.  However  extravagant  the  pretension  of 
converting  the  discovery 'of  an  inhabited  country  into  conquest  may  ap- 
pear ;  if  the  principle  has  been  asserted  in  the  first  instance,  and  after- 
wards sustained;  if  a  country  has  been  acquired  and  held  under  it;  if 
the  property  of  the  great  mass  of  the  community  originates  in  it,  it  be- 
comes the  law  of  the  land,  and  cannot  be  questioned.  So  too,  with  re- 
spect to  the  concomitant  principle,  that  the  Indian  inhabitants  are  to  be 
considered  merely  as  occupants,  to  be  protected  indeed,  while  in  peace, 
in  the  possession  of  their  lands,  but  to  be  deemed  incapable  of  transfer- 
ring the  absolute  title  to  others.  However  this  restriction  may  be  op- 
posed to  natural  right,  and  to  the  usages  oi  civilized  nations,  yet,  if  it  be 
indispensable  to  that  system  under  which  the  country  has  been  settled, 
and  be  adapted  to  the  actual  condition  of  the  two  people,  it  may,  per- 
haps, be  supported  by  reason,  and  certainly  cannot  be  rejected  by  courts 
of  justice.     *     *     * 

After  bestowing  on  this  subject  a  degree  of  attention  which  was 
more  required  by  the  magnitude  of  the  interest  in  litigation,  and  the 
able  and  elaborate  arguments  of  the  bar,  than  by  its  intrinsic  difficulty, 
the  court  is  decidedly  of  opinion,  that  the  plaintiffs  do  not  exhibit  a  title 
which  can  be  sustained  in  the  courts  of  the  United  States;  and  that 
there  is  no  error  in  the  judgment  which  was  rendered  against  them  in 
the  district  court  of  Illinois. 

Judgment  affirmed,  with  costs.* 

4  See  Jones_Jtr.  United  States,  137  U.  S.  202,  11  Sup.  Ct.  80,  34  L.  Ed.  691  ' 
(1890),  applying  the  prttrciple  of  acquisition  by  discovery  to  guano  islands. 

For  nonjudicial  precedents,  see  the  controversy  between  Great  Britain  and 
United  States  relative  to  Oregon.  1845-46.  Richard  Henry  Dana's  Wheaton, 
250-2.54  (1866)  ;  John  W.  Foster's  Century  of  American  Diplomacy,  302-313 
(1900);  the  Delagoa  Bay  controversy,  1875,  William  Edward  Hall's  Interna- 
tional Law  (4th  Ed.)  122  (1895) ;  The  Santa  Lucia  dispute,  1  Sir  Robert  Philli- 
more,  Int.  Law  (3d  Ed.  1879)  368. 

"At  the  present  time  it  is  generally  conceded  that  discovery  alone  is  not 
enough  to  give  title  to  territory ;   it  must  be  folloaved  by  actual  occupation. 

"In  regard  to  the  extent  of  the  interior  country  to  which  the  occupation 


Ch.  3)  TERRITORY  OF   STATES  181 

II.     Conquest  and  Cession 
THE  KAMA. 

(High  Court  of  Admiralty,  1S04.     5  C.  Rob.  Adm.  106.) 

This  was  a  question  respecting  the  national  character  of  Lguisianaj, 
whether  jt  was,  at  the  time  of  capture,  May,  1803,  to  be  considered  as 
a_Spanish  settlement,  or  as  belonging  to  France,  by  reason  of  the  treaty 
of  Ildefonso,  1796,  by  which  it  was  ceded  to  that  country.    The  question 

arose  on  the  claim  of  Mr. ,  a  merchant,  resident  at  New  Orleans, 

for  property  taken,  May,  1803,  on  a  voyage  from  New  Orleans  to 
Havre  de  Grace.     *     *     * 

Sir  W.  Scott.  The  present  question  is  a  general  one,  respecting 
the  situation,  in  which  the  people  of  a  distant  settlement  are  placed,  by 
a  Treaty  of  the  State  to  which  they  undoubtedly  belong,  and  by  which 
they  are  stipulated  to  be  transferred  to  another  power.  The  case  pro- 
ceeded for  a  considerable  time  without  dispute  as  to  principle,  on  a 
mere  enquiry  into  the  fact  of  possession ;  under  an  understanding,  as 
I  apprehended,  that  if  possession  had  not  been  taken  by  France,  the 
French  character  could  not  be  deemed  to  have  attached.  The  question 
has  however  now  been  fully  argued  as  to  the  principle  of  law,  whether 
the  Treaty  did  not  in  itself  confer  full  sovereignty  and  right  of  do- 
minion, and  whether  the  inhabitants  were  not  so  ceded  by  that  Treaty, 
as  to  become  immediately  French  subjects.  Another  question  has  also 
been  started,  respecting  the  Treaty  of  Ildefonso,  whether  such  a  Treaty 

of  the  seacoast  gives  title,  the  extravagant  claim  was  put  forward  in  some 
of  the  earlier  charters,  granting  lands  in  North  America,  that  such  right  ex- 
tended from  the  Atlantic  to  the  Pacific  Ocean.  A  more  reasonable  rule  was 
laid  down  by  the  United  States  Commissioners,  appointed  to  settle  the  bound- 
ary of  Louisiana,  namely,  'that  when  any  European  nation  t^kes  possession 
of  any  extent  of  seacoast,  that  possession  is  understood  as  extending  into 
the  interior  country,  to  the  sources  of  the  rivers  emptying  theuisoives  witliin 
that  coast,  to  all  their  branches,  and  the  country  they  cover,  and  to  give  it  a 
right  in  exclusion  of  all  other  nations  to  the  same." "  Freeman  Snow's  Cases 
on  International  Law,  pp.  12.  13,  note  (1893). 

The  Conference  of  Berlin  Concerning  the  Congo,  adopted,  among  other  valu- 
able provisions,  a  "Declaration  Relative  to  the  Conditions  Essential  to  be 
Fulfilled  in  Order  that  New  Occupations  upon  the  Coasts  of  the  African  Con- 
tinent may  be  Considered  as  P^ffective."  The  provisions  of  the  Conference, 
in  so  far  as  the  present  subject  is  concerned,  are  contained  in  the  following  ar- 
ticles of  the  general  act: 

•Article  34.  The  power  which  henceforth  shall  take  possession  of  a  territory 
vpon  the  coast  of  the  African  continent  situated  outside  of  its  present  pos- 
se.ssions,  or  which,  not  having  had  such  possessions  hitherto,  shall  come  to 
acquire  them,  and  likewise,  the  power  which  shall  assume  a  protectorate 
there,  shall  accompany  the  respective  act  with  a  notification  addressed  to  the 
other  signatory  powers  of  the  present  act,  in  order  to  put  them  in  a  condition 
to  make  available,  if  there  be  occasion  for  it,  their  reclamations. 

"Article  .35.  The  signatory  powers  of  the  present  act  recognize  the  obliga- 
tion to  assure,  in  the  territories  occupied  by  them,  upon  the  coasts  of  the 
African  continent,  the  existence  of  an  authority  sufficient  to  cause  acquired 
rights  to  be  respected  and,  the  case  occurring,  the  liberty  of  commerce  and  of 
transit  in  the  conditions  upon  which  it  may  be  stipulated."  76  British  and 
Foreign  State  Papers,  19. 


/; 


182  RIGHTS  AND   DUTIES  OF  NATIONS  IN   TIME  OP  PEACE       (Part  1 

made  clandestinely,  as  it  is  said,  during  hostilities,  and  with  a  provision 
that  it  should  not  take  effect  till  after  the  war,  is  not  to  be  considered 
in  the  light  of  a  fraudulent  covering  of  French  interests,  for  the  pur- 
pose of  defeating  the  belligerent  rights  of  this  country.  This  latter 
question  cannot,  I  think,  fairly  be  brought  into  discussion;  nor  is  it 
necessary  to  decide,  what  would  be  the  situation  of  a  neutral  country, 
deHvering  up  its  rights  to  one  belligerent,  and  continuing  to  nurse  and 
feed  the  colony  for  the  benefit  of  that  belligerent  during  the  war.  It 
is,  I  say,  needless  to  enquire,  in  the  present  case,  what  rights  of  war 
would  accrue  to  the  other  belligerent  from  such  a  conduct;  because 
Spain,  very  soon  after  the  signing  of  that  Treaty,  became  herself  a 
party  in  the  war,  and  was  as  much  exposed  to  the  attacks  of  this 
Country  in  all  her  settlements,  as  they  could  have  been  in  the  posses- 
sion of  France.  It  is  impossible,  therefore,  that  Spain  can  be  said  to 
have  lent  her  aid  and  assistance  as  a  neutral  Country  during  the  war, 
to  nourish  and  protect  this  colony  as  a  colony  of  France.  Un  the  re- 
turn of  peace,  no  objection  in  the  way  of  protest  or  public  reclamation 
was  made  against  the  Treaty  on  the  part  of  this  country.  I  shall  there- 
fore dismiss  this  branch  of  the  argument,  as  not  fairly  supported  by  the 
circumstances  of  the  case.  The  other  question  of  law,  how  far  full 
-Sovereignty  can  be  held  to  have  passed  by  the  mere  words  of  the 
>j  Treaty,  without  actual  delivery,  was  in  the  first  stages  of  this  cause  not 
S  mooted.  As  it  has  now  been  brought  into  discussion,  it  is  fit  that  I 
should  give  my  opinion  upon  it. 

It  is  to  be  observed  then,  that  all  corporeal  property  depends  very 
much  upon  occupancy.  With  respect  to  the  origin  of  property,  this  is 
the  sole  foundation.  Quod  nullius  est  ratione  naturali  occupanti  id  con- 
ceditur.  So  with  regard  to  transfer  also,  it  is  universally  held  in  all  sys- 
tems of  jurisprudence,  that  to  consummate  the  right  of  property,  a  per- 
son must  uni^e  the  right  of  the  thing  with  possession.  A  question  has 
been  made  indeed  by  some  writers,  whether  this  necessity  proceeds 
from  what  they  call  the  natural  law  of  nations,  or  from  that  which  is 
only  conventional.  Grotius  seems  to  consider  it  as  proceeding  only 
from  civil  institutions. °     Puffendorf  ^  and  Pothier  ^  go  farther.     All 

5  Que  la  deliverance  de  la  chose  meme  que  Ton  transfere  Jl  autrui  n'est 
necessaire  qu'en  vertu  des  loix  civiles.  B.  2,  c.  6,  1-4,  Barbeyrac's  Transla- 
tion. 

^  Cela  pose,  il  est  clair,  que  les  conventions  toutes  seules  suffisent  pour  faire 
passer  d'une  person  ne  k  I'autre  la  propriete  consideree  purement  et  simple- 
ment  comme  une  quality  morale,  d(§tachee  de  la  possession;  mais  'lorsque 
I'idee  de  la  propriete  renferme  de  plus  un  pouvoir  physique,  que  met  en  etat  de 
faire  actuellement  usage  de  ce  droit  il  faut,  outre  I'accord  mutuel,  que  la 
chose  meme  soit  delivree.  C'est  une  suite  des  maximes  naturelles  de  la 
raison,  &  non  pas  des  seuls  reglements  du  droit  positif .    Puff.  1,  4,  c.  9,  §  8. 

■^  Quoiqu'il  soit  de  cette  question  traitee  selon  le  pur  droit  naturel,  que  nous 
abandonnons  a  la  dispute  de  I'ecole,  le  principe  du  droit  Remain,  que  le  do- 
maine  de  propriete  d'une  chose  nc  pent  passer  d'une  person  ne  a  une  autre,  que 
par  une  tradition  rgele  ou  feinte  de  la  chose,  etaut  un  principe  regu  dans  la 
jurisprudence,  comme  en  conviennent  ceux,  qui  sont  de  I'opinion  contraire, 
nous  devons  nous  y  tenir.     Pothier,  c.  4,  p.  437. 


Ch.  3)  .     TERRITORY  OF   STATES  183 

concur,  however,  in  holding  it  to  be  a  necessary  principle  of  jurispru- 
dence, that  to  complete  the  right  of  property,  the  right  to  the  thing,  and 
the  possession  of  the  thing  itself,  should  be  united ;  or,  according  to  the 
technical  expression,  borrowed  either  from  the  civil  law,  or  as  Barbey- 
rac  explains  it,  from  the  commentators  on  the  Canon  Law,  that  there 
should  be  both  the  jus  in  rem,  and  the  jus  in  re.  This  is  the  general 
law  of  property,  and  applies,  I  conceive,  no  less  to  the  right  of  terri- 
tory than  to  other  rights.  Even  in  newly  discovered  countries,  where 
a  title  is  meant  to  be  established,  for  the  first  time,  some  act  of  posses- 
sion is  usually  done  and  proclaimed  as  a  notification  of  the  fact.  In 
transfer,  surely,  where  the  former  rights  of  others  are  to  be  supersed- 
ed, and  extinguished,  it  cannot  be  less  necessary  that  such  a  change 
should  be  indicated  by  some  public  acts,  that  all  who  are  deeply  in- 
terested in  the  event,  as  the  inhabitants  of  such  settlements,  may  be  in- 
formed under  whose  dominion,  and  under  what  laws  they  are  to  live. 
This  I  conceive  to  be  the  general  propriety  of  principle  on  the  subject, 
and  no  less  applicable  to  cases  of^  territory,  than  to  property  of  every 
other  description. 

It  will  be  only  necessary  to  enquire  then,  whether  the  practice  has 
been  conformable  to  what  we  might  conceive  to  be  the  true  principle  of 
law.  On  this  point  no  doubt  can  be  entertained.  The  Corps  Diplo- 
matique is  full  of  instances  of  this  kind :  Where  stipulations  of  Trea- 
ties for  ceding  particular  countries  are  to  be  carried  into  execution,  sol- 
emn instruments  of  cession  are  drawn  up,  and  adequate  powers  are 
formally  given  to  the  persons,  by  whom  the  actual  delivery  fs  to  be 
made.  J[n^  modern  times,  more  especially,  such  a  proceeding  is  become 
almost  a  matter  of  necessity,  with  regard  to  the  colonial  establishments 
of  the  States  of  Europe,  in  the  new  world.  The  Treaties  by  which  they 
are  affected  may  not  be  known  to  them  for  months  after  they  are  made. 
Many  articles  must  remain  executory  only,  and  not  executed,  till  car- 
ried into  effect ;  and  until  that  is  done  by  some  public  act,  the  former 
sovereignty  must  remain.  Amongst  the  instances  that  might  be  cited 
to  shew  what  the  practice  has  been  on  this  subject,  I  will  mention  only 
a  few.  On  the  cession  of  Nova  Scotia  to  France  by  Treaty,  21st  July, 
1667,  the  act  of  cession,  which  purports  to  be  made  in  consequence  of 
the  Treaty,  was  not  drawn  up  till  February,  1668,  when  full  powers 
were  sent  out  to  deliver  up  the  settlement  to  the  person  who  should 
be  empowered  to  take  possession,  under  the  great  seal  of  France. — 
Another  instance,  which  comes  nearer  to  the  present  question,  is  to 
be  found  in  the  proceedings  which  took  place  when  this  very  settle- 
ment of  Louisiana  was  ceded  by  France  to  Spain  in  1762.  It  passed 
by  act  of  cession  drawn  up  in  solemn  form,  and  dated  more  than  a 
year  after  the  Treaty  itself.  Indeed  modern  history  abounds  in  such 
instances.  If  to  these  it  were  necessary  to  add  the  authority  of  a  judi- 
cial recognition  of  the  principle,  I  think  the  case  of  Wroughton  against 
Mann,  to  which  I  alluded  on  the  former  day,  is  strongly  in  point.    That 


184  RIGHTS   AND   DUTIES   OF  NATIONS   IN   TIME   OF   PEACE       (Part  1 

\vas  a  case  before  the  delegates  on  appeal  in  a  revenue  cause.  The  Act 
of  Court  pleaded,  "that  East  Florida  was  ceded  to  Spain  by  Treaty  of 
1803,  and  that  eighteen  months  were  allowed  for  emigration.  2dly.  that 
notwithstanding  the  Treaty,  the  English  laws  continued  till  the  Spanish 
Government  arrived  and  received  delivery  from  General  Tonin ;  and 
the  formal  instruments,  under  which  possession  was  afterwards  taken, 
were  exhibited."  The  offence  charged  was  an  act  of  importation  con- 
trary to  the  British  Revenue  Laws,  long  after  the  ratification  of  the 
Treaty,  but  before  the  arrival  of  the  Spanish  Governor,  and  the  actual 
delivery.  Objections  were  taken  to  the  allegations  similar  to  the  ar- 
guments which  have  been  urged  in  the  present  case,  viz.,  "That  the 
country  had  passed  to  Spain  by  virtue  of  the  Treaty;  that  the  con- 
tinuance of  British  possession  was  but  an  usurpation ;  and  that  the 
offence  was  no  longer  amenable  to  the  British  laws.  If  that  could  have 
been  sustained,  the  plea  must  have  been  bad;  but  it  was  not  so  held. 
The  Court  of  Delegates  were  of  opinion,  that  the  contract  was  merely 
executory,  and  till  it  was  carried  into  execution,  the  British  possession, 
and  the  British  laws,"  continued  in  full  force.  On  this  ground  the  al- 
legation was  admitted.  The  cause  proceeded,  and  went  off  afterwards 
on  failure  of  proof  as  to  the  fact ;  but  the  opinion  of  the  Court,  as  to 
the  law,  was  fully  declared  by  the  admission  of  such  a  plea.  .1  am  of 
opinion,  therefore,  that  on  all  the  several  grounds  of  reason  or  practice, 
and  judicial  recognition,  until  possession  was  actually  taken,  the  inhabi- 

^tants  of  New  Orleans  continued  under  the  former  sovereignty  of  Spain. 
iThen  as  to  the  fact  of  possession.  There  are  undoubtedly  some  ex- 
pressions in  these  letters,  which  might  raise  a  supposition,  that  the 
person  who  had  arrived,  had  taken  possession  on  the  part  of  the 
French  Government.  A  letter  from  a  French  Loyalist  expresses  "the 
expectation  of  French  troops  and  a  civil  officer  to  take  possession,  and 
make  Frenchmen  of  us,  who  are  now  Spaniards."  It  is  afterwards 
said  that  Citizen  Laussart  had  arrived  to  take  possession.  A  procla- 
mation is  issued  by  him,  which  is  drawn  up  very  much  in  the  present 
tense;  but  that  mode  of  speaking  is  used  also,  I  observe,  relative  to 
some  circumstances  which  had  certainly  not  taken  place,  as  "that  the 
military  Prefect  brings  with  him  troops,  &c."  when  it  is  certain  that  not 
a  soldier  had  appeared.  From  other  parts  of  the  evidence,  I  think  it  is 
sufficiently  clear  that  he  was  either  not  the  person  who  was  charged 
with  the  act  of  taking  possession,  or  that  some  considerations  had  in- 
duced him  to  defer  it.  A  letter  written  by  him  states,  "if  the  taking  pos- 
session had  passed,"  etc.  There  is  also  the  Convention  entered  into : 
"That  the  French  flag  should  enjoy  the  same  privileges,  as  if  the  pos- 
session had  actually  been  taken."  These  passages  strongly  indicate  that 
the  actual  delivery  had  not  passed.  Then  comes  the  certificate  of  the 
Spanish  Governor,  accompanied  by  an  instruction  equally  formal,  from 
the  American  Consul.  These  are,  I  think,  decisive  as  to  the  fact.  They 
state,  that  Citizen  Laussart  had  arrived  in  March  to  make  the  neces- 


Ch.  3)  TERRITORY  OF   STATES  '  185 

sary  arrangements,  but  that  no  cession  had  taken  place,  and  that  he 
had  never  exercised  any  jurisdiction.  On  the  whole  of  this  evidence 
I  am  led  to  conclude,  either  that  Mr.  Laussart  was  not  the  person  au- 
thorized ®  to  take  possession,  or  that  the  act  of  cession  had  from  some 
causes  been  deferred.  In  this  situation  of  things,  it  appears  to  me,  up- 
on the  grounds  before  stated,  that  the^  colony  must  be  considered  as 
_continuing^  _aj:_the_tjme  of  capture,  under  the  dominion  of  Spain,  and 
consequently  that  these  persons,  as  Spanish  subjects,  are  entitled  to 
restitution. 


THE  FOLTINA. 

(High  Court  of  Admiralty,  1814.     1  Dodson.  450.) 

This  was  the  case  of  a  ship  and  cargo  seized  on  the  15th  of  Decem- 
ber, 1811,  whilst  lying  at  anchor  in  the  roadstead  of  Heligoland,  which 
island  had  been  surrendered  to  his  Majesty's  forces  on  the  5th  of  Sep- 
tember, 1807.  The  question  was,  whether  the  ship  and  cargo  should 
be  condemnedas  droits  of  admiralty  or  otherwise. 

Sir  W.  Scott.  This  is  the  case  of  a  vessel  which  was  taken  in  the 
roadstead  of  Heligoland,  not  at  the  time  of  the  surrender  of  the  is- 
land, but  afterwards,  and  the  seizure  is  represented  to  have  taken  place 
within  the  harbor.  The  locality  of  the  transaction  is,  I  think,  sufficient- 
ly described  by  the  terms  made  use  of  by  the  witnesses,  who  must  be 
understood  to  mean  that  portion  of  the  sea  to  which  vessels  are  carried 
for  the  purpose  of  landing  their  cargoes  at  Heligoland ;  and  whether 
the  same  portion  of  the  sea  is  more  or  less  enclosed,  whether  it  is  com- 
pletely land-locked  or  not,  does  not  appear  to  be  material  to  the  issue 
in  the  present  case.  The  Gazette,  too,  describes  the  place  as  a  haven,  a 
compliment  to  which  it  is  certainly  not,  in  strictness,  entitled ;  but  it  is 
used  as  a  haven,  and  may,  therefore,  fairly  be  considered  as  such,  at 
least,  for  the  purposes  of  the  present  question.  There  is  certainly  no 
reason  for  saying  that  the  property  is  not  within  the  grant  of  the  crown 
to  the  Lord  High  Admiral,  so  far  as  the  locality  of  the  seizure  is  con- 
cerned ;  for  it  is  the  ordinary  rule,  Jhat  ships,  taken  in  such  places 
during  the  existence  of  hostilities,  become  droits  of  admiralty. 

s  It  appears  from  the  American  papers,  December  13,  1803,  that  Mr.  Laus- 
sart was  the  person  who  afterwards  took  possession ;  "that  a  few  days  previ- 
ous to  that  date,  the  Province  of  Louisiana  was,  witli  all  due  ceremonial,  sur- 
rendered to  the  French  Republic.  The  governor,  Salcedo,  and  the  Marquis  de 
De  Gaffa  Calvo,  acted  as  commissioners  on  the  part  of  his  Catholic  Majesty ; 
and  the  colonial  prefect,  citizen  Laussart,  as  the  representative  of  the  French 
Government."  From  the  same  authority,  January  23,  1804,  it  appears  that, 
20th  December,  1803,  possession  was  formally  ceded  by  France  to  the  Ameri- 
can governor,  ■  with  appropriate  ceremonies.  The  concluding  paragrapli  de- 
scribes the  new  establishment  to  have  consisted  principally  of  Frenchmen. 
"The  governor  has  conlirnied  the  municipality,  which  consists  of  a  mayor, 
council,  secretary,  and  citj^  treasurer.  They  are  all  Frenchmen.  The  same 
duties  are  paid  as  under  the  old  regime." 


186  RIGHTS   AND   DUTIES   OF  NATIONS   IN  TIME  OF   PEACE       (Part  1 

But  the  chief  point  to  be  considered  is,  whether,  at  the  time  this 
gei^zure  was  made,  Hehg-oland  formed  part  of  the  dominions  of  the 
crown  of  Great  Britain  or  not.  Thejsland,  it  appears,  had  been  con- 
quered and  taken  possession  of  by  British  forces,  but  the  conquest  had 
not  been  confirmed  to  this  country  by  a  treaty  of  peace.  It  was  a  firm 
capture  in  war,  but  was  still  subject  to  a  kind  of  latent  title  in  the 
enemy,  by  which  he  might  have  recovered  it  at  the  conclusion  of  the 
war,  provided  this  country  would  have  consented  to  its  restitution. 

It  is  somewhat  extraordinary  that,  in  the  course  of  the  numerous 
and  long  wars  in  which  this  country  has  been  engaged,  no  case  should 
have  been  determined  which  might  serve  as  a  guide  to  the  court  in  the 
decision  of  the  present  question.  It  does  not  appear  that  any  case  of  the 
kind  has  hitherto  occurred,  with  the  solitary  exception  of  that  which 
has  been  mentioned  in  the  argument,  (The  Esperanza,)  and  that  is 
admitted  to  have  passed  with  very  Httle  notice,  and  without  opposition. 
A  cause  thus  passing  sub  silentio  cannot  be  considered  of  great  weight 
in  point  of  authority.  I  observe  that  the  grant  from  the  crown  to  the 
Lord  High  Admiral  applies  to  the  king's  dominions  generally,  and  that 
there  is  nothing  which  points  to  a  distinction  between  those  parts  of 
the  king's  dominions  over  which  the  crown  has  plenum  dominium  or 
otherwise.  No  point  is  more  clearly  settled  in  courts  of  common  law 
than  that  a  conquered  country  forms  immediately  part  of  the  king's 
dominions.  (Campbell  v.  Hall,  Cowper's  Rep.  20S.)  In  a  late  in- 
stance, we  know  that  an  island  so  acquired  (Guadaloupe)  was  trans- 
ferred to  a  third  power,  subject,  undoubtedly,  to  the  shadowy  right 
of  the  former  proprietor.  It  is  said,  that  a  conquest  of  this  kind  may 
be  re-acquired  flagranti  bello  by  the  state  from  which  it  was  taken ; 
but  so  may  any  other  possession,  though  forming  part  of  the  original 
and  established  dominions  of  the  crown  of  this  country,  if  the  enemy 
has  it  in  his  power  to  make  the  conquest.  The  same  observation  is  ap- 
plicable to  the  Isle  of  Wight,  as  well  as  to  Heligoland,  for  the  enemy 
has  the  same  right  to  make  a  conquest  of  one  as  the  other.  It  is  said 
that_the  enemy  may  recover  back  the  island  of  Heligoland  when  peace 
takes  place;  but  it  is  equally  true  that  the  conqueror  may  retain  it  if  he 
can;  and,  if  nothing  is  said  about  it  in  the  treaty,  it  remains  with  the 
possessor,  whose  title  cannot  afterwards  be  called  in  question.  The 
distinction  between  the  two  species  of  territories  is,  in  fact,  rather 
more  formal  than  real  and  substantial,  at  least  I  must  profess  my  in- 
ability to  see  any  distinction  between  them  that  can  materially  affect  the 
present  question.  The  power  of  the  British  government  was  full  and 
complete;  and,  though  the  Lords  Commissioners  of  the  Admiralty 
"rmght  not  have  interposed  the  particular  authority  with  which  they  are 
invested,  yet  the  crown  had  exercised  its  authority,  and  the  admiralty, 
as  the  grantee  of  the  crown,  would  succeed  to  its  rights.  It  might  have 
erected  a  court  there,  for  the  exercise  of  admiralty  jurisdiction ;  and,  if 
it  did  not,  I  presume  that  it  only  refrained  from  so  doing  because  it 


Ch.  3)  TERRITORY   OF   STATES  187 

was  not  thought  that  public  convenience  required  it.  The  enemy  cer- 
tainly had  no  right  to  say  that  a  court  of  that  kind  should  not  be  there 
erected.  Under  the  circumstances,  I  think  there  is  no  solid  ground  for 
the  distinction  that  has  been  taken ;  and  though  I  am  by  no  means 
disposed,  at  this  time  of  day,  to  enlarge  the  bounds  of  the  ancient  grant 
from  the  crown  to  the  Lord  High  Admiral,  which  is  now  become  of  less 
consequence,  yet  it  is  the  duty  of  the  court  to  maintain  ancient  land- 
marks. I  shall  pronounce  for  the  claim  of  the  admiralty,  and  con- 
demn this  ship  as  droits  of  admiralty.® 


AMERICAN  INSURANCE  CO.  et  al.  v.  CANTER. 
(Supreme  Court  of  the  United  States,  1828.    1  Pet.  511,  7  L.  Ed.  242.) 

Chief  Justice  Marshall  delivered  the  opinion  of  the  court.^" 
The  plaintiffs  filed  their  libel  in  this  cause,  in  the  district  court  of 
South  Carolina,  to  obtain  restitution  of  356  bales  of  cotton,  part  of 
the  cargo  of  the  ship  Point  a  Petre ;  which  has  been  insured  by  them, 
on  aTvoyage  from  New  Orleans  to  Havre  de  Grace,  in  France.  The 
Point  a  Petre  was  wrecked  on  the  coast  of  Florida,  the  cargo  saved  by 
the  inhabitants,  and  carried  into  Key  West,  where  it  was  sold,  for  the 
purpose  of  satisfying  the  salvors,  by  virtue  of  a  decree  of  a  court,  con- 
sisting of  a  notary  and  five  jurors,  which  was  erected  by  an  act  of  the 
territorial  legislature  of  Florida.  The  owners  abandoned  to  the  under- 
writers, who  having  accepted  the  same,  proceeded  against  the  property ; 
alleging  that  the  sale  was  not  made  by  order  of  a  court  competent 
to  change  the  property. 

9  See  Campbell  v.  Hall,  1  Cowp.  204  (1774).  in  which  Lord  Mansfield  dis- 
cusses the  various  conquests  made  by  Great  Britain,  and  the  relation  of  the 
conquered  territories  to  the  Crown. 

In  the  earlier  case  of  Rex  v.  Vaughan,  4  Burr.  2494,  2500  (1769),  Lord 
Mansfield  had  said: 

"The  argument  is  strong,  that  these  statutes  do  not  extend  to  Jamaica ; 
though  they  were  enacted  long  before  that  island  belonged  to  the  Crown  of 
England. 

"If  Jamaica  was  considered  as  a  conquest,  they  would  retain  their  old 
laws,  till  the  conqueror  had  thought  fit  to  alter  them. 

"If  it  is  considered  as  a  colony,  (which  it  ought  to  be,  the  old  inhabitants 
having  left  the  island,)  then  the.se  statutes  are  positive  regulations  of  police, 
not  adapted  to  the  circumstances  of  a  new  colony ;  and  therefore  no  part  of 
that  law  of  England  which  every  colony,  from  necessity,  is  supposed  to  carry 
with  them  at  their  first  plantation. 

"No  act  of  Parliament  made  after  a  colony  is  planted,  is  construed  to  extend 
to  it,  without  express  words  shewing  the  intention  of  the  Legislature  to  be 
•that  it  should.' " 

See,  also,  on  this  subject,  the  very  Interesting  case  of  Van  Deventer  v. 
Hancke  and  Mossop,  Transvaal  Law  Reports,  401  (1903),  in  which  the  con- 
quest of  the  Transvaal  and  its  consequences  are  considered  by  the  Supreme 
Court  of  what  was  then  the  Transvaal  Colony,  now  an  integral  part  of  the 
South  African  Union. 

*•<>  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


188  RIGHTS  AND   DUTIES    '>F   NATIONS   IN   TIME   OP   PEACE       (Parti 

David  Canter  claimed  the  cotton  as  a  bqna_fide  purchasefj  under  the 
decree  of  a  competent  cdurt,  which  awarded  seventy-six  per  cent,  to 
the  salvors,  on  the  value  of  the  property  saved.  The  district  judge  proj: 
noLUiced  the  decree  of  the  territorial  court  a  nullity,  and  awarded  resti- 
tution  to  the  libellantSj  of  such  part  of  the  cargo  as  he  supposed  to  be 
identified  by  the  evidence ;   deducting  therefrom  a  salvage  of  fifty_£er 

cent.     The  libellants  and  claimant  both  appealed.     The  circuit  court 

reversed  the  decree  of  the  district  court,  and  decreed  the  whole  cotton 
to  the  claimant,  with  costs ;  on  the  ground,  that  the  proceedings  of  the 
court  at  Key  West  were  legal,  and  Iransffirredthe  property  to  the  pur- 
chaser.    From  this  decree,  the  libellants  have  appeaied-te^-this  couTifc  ._  .,,^ 

The  cause  depends,  mainly,  on  the  question  whether  the  propi?TTy 
in  the  cargo  saved,  was  changed,  by  the  sale  at  Key  West.  The  con- 
formity of  that  sale  to  the  order  under  which  it  was  made,  has  not  been 
controverted.  Its  validity  has  been  denied,  on  the  ground,  that  it 
was  ordered  bj^^  iijcompetent  tribujial.  The  tribunal  was  constituted 
by  an  act  of  the  territorial  legislature  of  Florida,  passed  on  the  4th 
of  July,  1823,  which  is  inserted  in  the  record.  That  act  purports 
to  give  the  power  which  has  been  exercised ;  consequently,  the  sale  is 
yalid,  if  the  territorial  legislature  was  competent  to  enact  the  law. 

The  course  which  the  argument  has  taken,  will  require,  that,  in  de- 
ciding this  question,  the  court  should  take  into  view  the  relation  in 
which  Florida  stands  to  the  United  States.  The  Constitution  confers 
absolutely  on  the  government  of  the  Union,  the  powers  of  making 
war,  and  of  making  treaties ;  consequently,  that  government  possesses 
the  power  of  acquiring  territory,  either  by  conquest  or  by  treaty.  The 
usage  of  the  world  is,  if  a  nation  be  not  entirely  subdued,  to  consider  the 
holding  of  conquered  territory  as  a  mere  military  occupation,  until  its 
fate  shall  be  determined  at  the  treaty  of  peace.  If  it  be  ceded  by  the 
treaty,  the  acquisition  is  confirmed,  and  the  ceded  territory  becomes  a 
part  of  the  nation  to  which  it  is  annexed ;  either  on  the  terms  stipulated 
in  the  treaty  of  cession,  or  on  such  as  its  new  master  shall  impose.  On 
such  transfer  of  territor}%  it  has  never  been  held,  that  the  relations  of 
the  inhabitants  with  each  other  undergo  any  change.  Their  relations 
.with_their  former  sovereign  are  dissolved,  and  new  relations  are.creajted._ 
between  them  and  the  government  which  has  acquired  "their  territory. 
The  same  act  which  transfers  their  country  transfers  the  allegiance  of 
those  who  remain  in  it ;  and  the Ja^v,  which  may  be  denominated  polit- 
ical, is  necessarily  changed,  although  that  which  regulates__the  inter- 
course, andj^eneral  conduct  of  individuals,  remains  in  forcej.  until  al- 
tered by  the  newly  created  power  of  the  state. 

On  the  2d  of  February,  1819,  Spain  ceded  Florida  to  the  United 
States.  The  6th  article  of  the  treaty  oi  cession  contains  the  following 
provision :  "The  inhabitants  of  the  territories,  which  his  Catholic  Maj- 
esty cedes  to  the  United  States  by  this  treaty,  shall  be  incorporated  in  the 
Union  of  the  United  States,  as  soon  as  may  be  consistent  with  the  prin- 


Ch.  3)  TERRITORY   OF   STATES  189 

ciples  of  the  federal  Constitution  ;  and  admitted  to  the  enjoyment  of  the 
privileges,  rights  and  immunities  of  the  citizens  of  the  United  States." 
This  treaty  is  the  law  of  the  land,  and  admits  the  inhabitants  of  Florida 
to  the  enjoyment  of  the  privileges,  rights  and  immunities  of  the  citi- 
zens of  the  United  States.  It  is  unnecessary  to  inquire,  whether  this 
is  not  their  condition,  independent  of  stipulation.  They  do  not,  how- 
ever, participate  in  political  power;  they  do_^not  share  in  the  govern- 
ment, till  Florida  shall  becomea  state.'  In  the' meantime,  Florida  con- 
timif^  to.  be  a  territory  of  the  United  States ;  governed  by  virtue  of 
that  clause  in  the  Constitution,  which  empowers  Congress  "to  make  all 
needful  rules  and  regulations,  respecting  the  territory,  or  other  prop- 
erty, belonging  to  the  United  States." 

Perhaps,  the  power  of  governing  a  territory  belonging  to  the  United 
States,  which  has  not,  by  becoming  a  state,  acquired  the  means  of  self- 
government,  may  result  necessarily  from  the  fact,  that  it  is  not  within 
the  jurisdiction  of  any  particular  state,  and  is  within  the  power  and  jur- 
isdiction of  the  United  States.  The  right  to  govern  ma5-''be  the  in- 
evitable consequence  of  the  right  to  acquire  territory.  Whichever  may 
be  the  source  whence  the  power  is  derived,  the  possession  of  it  is  un- 
questioned. In£xeci£don_qf_jt^_Congress,  in  1822  (1  Stat.  654),  passed 
"an  act  for  the  establishment  o^ a  territorial  government  in  Florida,;" 
and  on  the  SdroFT^Tarch,  1823,  passed  another  act  to  amend  the  act  of 
1822  (1  Stat.  750).  Under  this  act,_the  territorial  legislature  enact_ed_ 
tjie  law  now  under  consideration.     *     *     * 

We  think,  then,  that  the  act  of^ the  territorial  legislature,  erecting  the^ 
court  by  whose  decree  the  cargo  of  the  Point  a  Petre  was  sold,  is  not 
"inconsistent  with  the  laws  and  Constitution  of  the  United  States,"  and 
is  valid.  Consequently,  the  sale  made  in  pursuance  of  it  changed  the 
property,' and  the  decree  of  the  circuit  court,  awarding  restitution  of  the 
:piepertylo"  the  claim^ant,,.aught_  tl>-_be  affirmed,  with  costs. 

Decree  affirmed. ^^ 

13  In  Mormon  Church  v.  United  States,  136  U,  S.  1,  42,  43,  10  Sup.  Ct.  792, 
34  L.  Ed.  481  (ISDU),  Mr.  Justice  Bradley,  delivering  the  opinion  of  the 
Court,  said : 

"The  power  of  Congress  over  the  territories  of  the  United  States  is  gen- 
eral aud  plenary,  arising  from  and  incidental  to  the  right  to  acquire  the  terri- 
tory itself,  and  from  the  power  given  by  the  Constitution  to  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  property  belonging  to 
the  United  States.  It  would  be  absurd  to  hold  that  the  United  States  has 
power  to  acquire  territory,  and  no  power  to  govern  it  when  acquired.  The 
power  to  acquire  territory,  other  than  the  territory  northwest  of  the  Ohio 
river,  (which  belonged  to  the  United  States  at  the  adoption  of  the  Constitu- 
tion,) is  derived  from  the  treaty-making  power  and  the  power  to  declare  and 
carry  on  war.  The  incidents  of  these  powers  are  those  of  national  sovereign- 
ty, and  belong  to  all  independent  governments.  The  power  to  make  acquisi- 
tions of  territory  by  conquest,  by  treaty  and  by  cession  is  an  incident  of  na- 
tional sovereignty.  The  territory  of  Louisiana,  when  acquired  from  France, 
and  the  territories  west  of  the  Rocky  Mountains,  when  acquired  from  Mexico, 
became  the  absolute  property  and  domain  of  the  United  States,  subject  to  such 
conditions  as  the  government,  in  its  diplomatic  negotiations,  had  seen  fit  to 
accept  relating  to  the  rights  of  the  people  then  inhabiting  those  territories. 


190  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   PEACE       (Part  1 

UNITED  STATES  v.  MORENO. 

(Supreme  Court  of  tbe  United  States,  1863.    1  Wall.  400,  17  L.  Ed.  633.) 

On  an  appeal  from  the  decree  of  the  District  Court  of  the  United 
States  for  the  Southern  District  of  California,  the  record  disclosed  the 
following  facts : 

On  the  5th  of  April,  1845,JV[oreno^ubmitted  to  Pio  Pico,  then  Gover- 
nor of  the  Department  of  CaTiForma,  a  petition,  wherein  Tie  set  forth 
that  he  had  "denounced,  in  due  form,  a  square  league  of  land  situate 
between  Temecula  and  the  Lagoon  called  Santa  Rosa,  to  which,  after 
previous  judicial  investigation,"  he  prayed  "to  be  awarded  the  respec- 
tive title,  on  the  ground  that  it  is  absolutely  vacant  and  without  any 
availableness."  The  governor  ordered  the  petition  "to  be  sent  for  the 
report  of"  the  proper  officer.  The  officer  reported  that  the  land  was 
"in  an  entire  vacant  state."  The  governor  thereupon  ordered  the  pe- 
tition to  be  returned  to  Moreno,  that  he  might  annex  a  plat  of  the  land, 
— the  application  to  come  again  before  the  government.  Moreno  was 
authorized  to  occupy  the  land  "provisionally,"  and  it  was  added,  "mean- 
while the  mentioned  title-deed  is  being  made  out." 

On  the  31st  of  January,  1846,  Moreno  presented  the  governor  a  new 
petition  with  the  required  plat.  In  this  petition  he  says :  "In  accord- 
ance with  the  decree  your  excellency  thought  fit  to  give  in  the  monJ:h 
of  April,  in  the  year  1845,  requiring  me  to  present  the  plat  of  the  land 
I  occupy  provisionally,  called  Santa  Rosa,  I  hereby,  with  the  deepest 
submission,  accompany  my  petition  and  the  plat,  that  your  excellency 
may  have  the  goodness  to  make  out  the  title-deed  of  ownership  to  me 
of  the  land  bordering  on  Temecula,  the  Lagoon,  and  Santa  Margarita, 
not  naming  the  number  of  leagues,  as  I  might  be  mistaken,  but  I  ask 
that  the  land  which  has  no  owner,  and  which  I  dem.and  in  due  form, 
be  set  apart  for  my  individual  benefit  and  that  of  my  family." 

The  governor  ordered  "the  title-deed  to  be  issued  and  given  to  the 
interested  party  with  obligation  to  amend  the  plat."  On  the  day  last 
mentioned,  a  deed  was  issued,  subject  to  the  approval  of  the  Depart- 

y 

Having  rightfully  acquired  said  territories,  the  United  States  government 
was  the  only  one  which  could  impose  laws  upon  them,  and  its  sovereignty  over 
them  was  complete.  No  state  of  the  Union  had  any  such  right  of  sovereignty 
over  them ;  no  other  country  or  government  had  any  such  right.  These  propo- 
sitions are  so  elementary,  and  so  necessarily  follow  from  the  condition  of 
things  arising  upon  the  acquisition  of  new  territory,  that  they  need  no  argu- 
ment to  support  them.  They  are  self-evident.  Chief  Justice  Marshall,  in 
the  case  of  American  Insurance  Co.  v.  Canter,  1  Pet.  511,  542,  7  L.  Ed.  242 
(1828),  well  said:  'Perhaps  the  power  of  governing  a  territory  belonging  to 
the  United  States,  which  has  not,  by  becoming  a  state,  acquired  the  means  of 
self-government,  may  result  necessarily  from  the  facts,  that  it  is  not  within 
the  jurisdiction  of  any  particular  state,  and  is  within  the  power  and  jurisdic- 
tion of  the  United  States.  The  right  to  govern  may  be  the  inevitable  conse- 
quence of  the  right  to  acquire  territory.  Whichever  may  be  the  source  whence 
the  power  is  derived,  the  possession  of  it  is  unquestionedc' " 


Ch.  3)  TERRITORY  OP   STATES  191 

mental  Assembly.     *     *     *     j^.  contained  with  others  the   following 
clauses : 

"The  land  donated  to  him  is  the  same  as  exhibited_in_the_plal,attach- 
ed  to  this  expediente,  and  borders  on  the  land  of  Temecula,  on  the  La- 
goon, and  on  Santa  Margarita. 

"The  judge  .who^shallpossesshjm  .Ql.it  w  cause  it  to  be  measured 
conTorrnable  to  ordinance,  and  give  notice  to  the  government  of  the 
number  of  leagues  (sitios  de  ganado  mayor)  it  may  contain. 

"Consequently,  I  order  that  this  title-deed,  being  held  firm  and  valid, 
it  be  entered  in  the  respective  book  and  delivered  to  the  interested  par- 
ty for  his  security  and  other  purposes." 

The  subject  was  submitted  to  the  Departmental  Assembly,  and  on 
the  3d  June,  1846,  that  body  approved  and  confirmed  the  grant. 

It  appeared  by  the  testimony  of  one  Foster,  in  early  life  a  justice  of 
the  peace,  but  who  had  been  for  many  years  a  "ranchero"  in  Califor- 
nia, that  "Santa  Rosa"  was  the  name  given  to  a  well-known  tract ;  that 
it  adjoined  another  well-known  tract,  called  "Temecula,"  on  the  east, 
a  second,  known  as  "Santa  Margarita,"  on  the  west,  and  that  a  third, 
called  "La  Laguna,"  stood  off  in  a  direction  northeasterly.  This  was 
confirmed  by  two  other  witnesses. 

Moreno  resided  upon  and  cultivated Jhe  land  from  the  tim^^^ 
authorized  to  occupy  it  until  the  acquisition  of  the  country  by  the  Unit- 
edStates. 

After  the  acquisition  he  presented  a  petition  to  the  board  of  Commis- 
si olTersrestabTi  shed  by  the  act  of  Congress  of  3d  March,  1851  (9  Stat. 
631),  to  ascertain  and  settle  private  land  claims  in  California,  to  have 
his  title  confirmed,  pursuant  to  the  provisions  of  that  statute.  The 
commissioners  having  confirmed  it,  an  appeal  was  taken  by  the  United 
States  to  the  District  Court ;  and  that  court  having  affirmed  the  report 
of  the  commissioners,  the  United  States  brought  the  case  here  by  appeal. 

It  was  objected  on  behalf  of  the  United  States  to  the  decree  of  the 
District  Court:     *     *     * 

2.  That  the  location  and  quantity  of  the  land  are  entirely  uncertain 
both  in  the  grant  and  in  the  diseno.     *     *     * 

Mr.  Justice  Swayne  delivered  the  opinion  of  the  court.^^     *     *     * 

The  tract  is  described  in  the  titulo  as  known  by  the  name  of  Santa 
Rosa,  and  as  bounding  upon  Temecula,  the  Lagoon,  and  Santa  Mar- 
garita. The  petitioner  asked  for  a  title  to  all  the  vacant  land  in  that 
locality,  and  it  was  conceded  to  him  accordingly. 

It  is  proved  by  the  testimony  of  three  witnesses  that  Santa  Rosa  was 
awell-known  rancho ;  that  Temecula,  the  Lagoon,  and  San  Margarita 
were  well-known  contiguous  ranchos,  and  that  there  was  not  theJeast 
difficulty  either  in  identifying  Santa  Rosa,  or  in  ascertaining  its  boun- 
daries.    There  is  no  contradictory  evidence  upon  the  subject.     The 


12  Part  of  the  statement  of  facts  and  part  of  the  opinion  are  omitted. 


192  RIGHTS   AND   DUTIES   OF   NATION'S   IN   TIME   OF   PEACE       (Part  1 

Dis"trict  Court  held  the  evidence  to  be  sufficient,  and  we  concur  in  that 
opinion. 

The  record  presents  every  Hnk  in  the  chain  of  a  perfect  espediente. 
There  is  a  petition  with  a  diseno,  an  order  of  reference,  an  informe  by 
the  proper  officer,  a  decree  of  concession,  a  titulo.  and  the  approval  of 
the  Departmental  Assembly.  United  States  v.  Knight's  Adm'r,  1  Black, 
245,  17  L.  Ed.  1,  76. 

The  Surv^eyor-General  of  California  certifies  that  the  espediente  is 
copied  from  the  archives  in  his  possession.  It  is  not  necessar\'  to  the 
validity  of  the  title  that  the  land  should  have  been  surveyed  and^  the 
quantity  ascertained.  Fremont  v.  United  States,  17  How.  542,  15  L. 
Ed.  241 ;  United  States  v.  Vaca,  18  How.  556,  15  L.  Ed.  485. 

California  belonged  to  Spain  by  the  rights  of  discovery  and  conquest. 
The  government  of  that  country  established  regulations  for  transfers 
of  the  public  domain  to  individuals.  When  the  sovereignty  of  Spain 
was  displaced  by  the  revolutionary  action  of  Mexico,  the  new  govern- 
ment established  regulations  upon  the  same  subject.  These  two  sover- 
eignties are  the  spring  heads  of  all  the  land  titles  in  California,  exist- 
ing at  the  time  of  the  cession  of  that  country  to  the  United  States  by 
the  treaty  of  Guadalupe  Hidalgo.  TTiat  cession  did  not  impair  the  rights 
o7~privatep'roperty.  They  were  consecrated  by  the  law  of  nations,  and 
protected  by  the  treaty.  The  treaty  stipulation  was  but  a  formal  recog- 
nition of  the  pre-existing  sanction  in  the  law  of  nations.  The  act  of 
March  3d,  1851,  was  passed  to  assure  to  the  inhabitants  of  the  ceded  ter- 
ritory the  benefit  of  the  rights  of  property  thus  secured  to  them.  It 
recognizes  alike  legal  and  equitable  rights,  and  should  be  administered 
in  a  large  and  liberal  spirit.  A  right  of  any  validity  before  the  cession 
was  equally  valid  afterwards,  and  while  it  is  the  duty  of  the  court  in 
the  cases  which  may  come  before  it  to  guard  carefully  against  claims 
originating  in  fraud,  it  is  equally  their  duty  to  see  that  no  rightful  claim 
is  rejected.  No  nation  can  have  any  higher  interest  than  the  right  ad- 
ministration of  justice. 

The  decree  of  the  District  Court  is  affirmed. 


FOURTEEN  DIAMOND  RINGS  v.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1901.     183  U.  S.  176,  22  Sup.  Ct.  59, 

46  L.  Ed.  138.) 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court.^^ 

Emil  J.  Pepke,  a  citizen  of  the  United  States  and  of  the  State  of 

North  Dakota,  enlisted~in  the  First  Regiment  of  the  North  Dakota 

United  States  Volunteer  Infantry,  and  was  assigned  for  duty  with  his 

regitrient  in  the  island  of  Luzon,  in  the  Philippine  Islands,  and  con- 

13  Part  of  the  opinion  is  omitted.  The  concurring  opinion  of  Mr.  Justice 
Brown,  and  the  dissenting  opinions  of  Justices  Gray,  Shiras,  White,  and 
McKenna  are  omitted. 


Ch.  3)  TERRITORY  OF   STATES  193 

tinued-  in  the  military  service  of  the  United  States  until  the  regiment 
was  ordered  to  return,  and,  on  arriving  at  San  Francisco,  was  dis- 
charged September  25,  1899. 

He  brought  with  him  from  Luzon  fourteen  diamond  rings,  which  he 
had  there  purchased,  or  acquired  through  a  loan,  subsequent  to  the 
ratification  of  the  treaty  of  peace  between  the  United  States  and  Spain. 
February  6,  1899,  and  the  proclamation  thereof  by  the  President  of  the 
United  States,  April  11,  1899. 

In  May,  1900,  in  Chicago,  these  rings  were  seized  by  a  customs 
officer  as  having  been  imported  contrary  to  law,  without  entry,  or 
declaration,  or  payment  of  duties,  and  an  information  was  filed  to 
enforce  the  forfeiture  thereof. 

To  this  Pepke  filed  a  plea  setting  up  the  facts,  and  claiming  that  the 
rings  were  not  subject  to  customs  duties;  the  plea  was  held  insuffi- 
cient; forfeiture  and  sale  were  decreed;  and  this  writ  of  error  was 
prosecuted. 

The  tariff  act  of  July  24,  1897,  30  Stat.  151,  in  regulation  of  com- 
merce with  foreign  nations,  levied  duties  "upon  all  articles  imported 
from  foreign  countries." 

Were  these  rings,  acquired  by  this  soldier  after  the  ratification  of 
the"treafy  was  proclaimed,  when  brought  by  him  from  Luzon  to  Cali-^ 
fomiaTon  his  return  with  his  regiment  to  be  discharged,  imported  from 
aTIbreign  country? 

Thfs'question  has  already  been  answered  in  the  negative,  in  respect 
of  Porto  Rico,  in  De  Lima  v.  Bidwell,  182  U.  S.  1,  21  Sup.  Ct.  743, 
45  L.  Ed.  1041,  and  unless  the  cases  can  be  distinguished,  which  we  are 
of  opinion  they  cannot  be  in  this  particular,  that  decision  is  controlling. 

The  Philippines,  hke  Porto  Rico,  became,  by  virtue  of  the  treaty, 
ceded  conquered  territory  or  territory  ceded  by  way  of  indemnity. 
Thelerritory  ceased  to  be  situated  as  Castine  was  when  occupied  by 
the  British  forces  in  the  war  of  1812,  or  as  Tampico  was  when  occu- 
pied by  the  troops  of  the  United  States  during  the  Mexican  war, 
"cases  of  temporary  possession  of  territory  by  lawful  and  regular  gov- 
ernments at  war  with  the  country  of  which  the  territory  so  possessed 
was  part."  Thorington  v.  Smith,  8  Wall.  10,  19  L.  Ed.  361.  The  Phil- 
ippines were  not  simply  occupied  but  acquired,  and  having  been  grant- 
ed and  deHvered  to  the  United  States,  by  their  former  master,  were  no 
longer  under  the  sovereignly  of  any  foreign  nation. 
"Til  Cross  V.  Harrison,  16  How.  164,  14  L.  Ed.  889,  the  question  was 
whether  goods  imported  from  a  foreign  country  into  California  after 
the  cession  were  subject  to  our  tariff  laws,  and  this  court  held  that  they 
were. 

In  De  Lima  v.  Bidwell,  the  question  was  whether  goods  imported 
into  New  York  from  Porto  Rico,  after  the  cession,  were  subject  to 
duties  imposed  by  the  act  of  1897  on  "articles  imported  from  foreign 
Scott  Int.  Law — 13 


194  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   PEACE       (Part  1 

oountries,"  and  this  court  held  that  they  were  not.  That  act  regulated 
commerce  with  foreign  nations,  and  Porto  Rico  had  ceased  to  be  within 
that  category ;  nor  could  territory  be  foreign  and  domestic  at  the  same 
time. 

Among  other  things  it  was  there  said:  "The  theory  that  a  coun- 
try remains  foreign  with  respect  to  the  tariff  laws  until  Congress  has 
acted  by  embracing  it  within  the  customs  union,  presupposes  that  a 
country  may  be  domestic  for  one  purpose  and  foreign  for  another. 
It  may  undoubtedly  become  necessary  for  the  adequate  administra- 
tion of  a  domestic  territory  to  pass  a  special  act  providing  the  proper 
machinery  and  officers,  as  the  President  would  have  no  authority,  ex- 
cept under  the  war  power,  to  administer  it  himself;  but  no  act  is 
necessary  to  make  it  domestic  territory  if  once  it  has  been  ceded  To" 
the  United  States.  *  *  *  This  theory  also  presupposes  that  terri- 
tory  may  be  held  indefinitely  by  the  United  States ;  that  it  may  be 
treated  in  every  particular,  except  for  tariff  purposes,  as  domestic  ter- 
ritory ;  that  laws  may  be  enacted  and  enforced  by  officers  of  the  United 
States  sent  there  for  that  purpose;  that  insurrections  may  be  sup- 
pressed, wars  carried  on,  revenues  collected,  taxes  imposed;  in  short, 
that  everything  may  be  done  which  a  government  can  do  within  its 
own  boundaries,  and  yet  that  the  territory  may  still  remain  a  foreign 
country.  That  this  state  of  things  may  continue  for  years,  for  a  cen- 
tury even,  but  that  until  Congress  enacts  otherwise,  it  still  remains  a 
foreign  country.  To  hold  that  this  can  be  done  as  matter  of  law  we 
deem  to  be  pure  judicial  legislation.  We  find  no  warrant  for  it  in  the 
Constitution  or  in  the  powers  conferred  upon  this  court.  It  is  true 
the  non-action  of  Congress  may  occasion  a  temporary  inconyenijence ; 
but  it^oes  not  follow  that  courts  of  justice  are  authorized  to  remedy  it 
by  inverting  the  ordinary  meaning  of  words." 

No  reason  is  perceived  for  any  different  ruling  as  to  the  Philippines. 
B^„lbe  third  article  of  the  treaty  ^pain  ceded  to  the  United  States 
"the  archipelago  known  as  the  Philippine  Islands,"  and  the  Umtedi 
States  agreed  to  pay  to  Spain  the  sum  of  twenty  million  dollars  within 
three  months.  The  treaty  was  ratified;  Congress  appropriated  the 
money;  the  ratification  was  proclaimed.  The  treaty-making  power, 
the  executive  power,  the  legislative  power,  concurred  in  the  completion 
of  the  transaction. 

The  Phihppines  thereby  ceased,  in  the  language  of  the  treaty,  "to 
be  Spanish."  Ceasing  to  be  Spanish,  they  ceased  to  be  foreign  coun- 
try. They  came  under  the  complete  and  absolute  sovereignty  and  do- 
minion of  the  United  States,  and  so  became  territory  of  the  United 
States  over  which  civil  government  could  be  estabhshed.  The  result 
was  the  same  although 'there  was  no  stipulation  that  the  native  inhabi- 
tants should  be  incorporated  into  the  body  politic,  and  none  securing 
to  them  the  right  to  choose  their  nationality.    Their  allegiance  became 

Scott  Int.Law 


Ch.  3)  TERRITORY   OF    STATES  19o 

due  to   the  United   States   and  they  became   entitled  to   its   protec- 
tion.    *     *     * 

It  is  further  contended  that  a  distinction  exists  in  that  while  com- 
plete possession  of  Porto  Rico  was  taken  by  the  United  States,  this  was 
not  so  as  to  the  Philippines,  because  of  the  armed  resistance  of  the 
native  inhabitants  to  a  greater  or  less  extent. 

We  must  decline  to  assume  that  the  government  wishes  thus  to  dis- 
parage the  title  of  the  United  States,  or  to  place  itself  in  the  position 
of  waging  a  war  of  conquest. 

The  sovereignty  of  Spain  over  the  Philippines,  and  possession  under 
claim  of  title  had  existed  for  a  long  series  of  years  prior  to  the  war 
with  the  United  States.  The  fact  that  there  were  insurrections  against 
her,  or  that  uncivilized  tribes  may  have  defied  her  will  did  not  affect 
the  validity  of  her  title.  She  granted  the  islands  to  the  United  States, 
and  the  grantee  in  accepting  them  took  nothing  less  than  the  whole 
grant. 

If  those  in  insurrection  against  Spain  continued  in  insurrection 
against  the  United  States,  the  legal  title  and  possession  of  the  latter 
remained  unaffected. 

We  do  not  understand  that  it  is  claimed  that  in  carrying  on  the 
pending  hostilities  the  government  is  seeking  to  subjugate  the  people 
of  a  foreign  country,  but,  on  the  contrary,  that  it  is  preserving  order 
and  suppressing  insurrection  in  territory  of  the  United  States.  It  fol- 
lows that  the  possession  of  the  United  States  is  adequate  possession, 
under  legaTlitTe,  and  this  cannot  be  asserted  for  one  purpose  and 
denied  for  another.  We  dismiss  the  suggested  distinction  as  unten- 
able.    *     *     * 

Decree  reversed  and  cause  remanded  with  directions  to  quash  the 
information/*  ' 


III.   AcCRETIOjST 

THE  ANNA. 

(High  Court  of  Admiralty,  1805.    5  C.  Rob.  373.) 

This  was  the  case  of  a  ship  under  American  colors,  witha  cargo  of 
[ogwood,  and  about  thirteen  thousand  dollars  on  board,  bound  from 
the  Spanish  main  to  New  Orleans,  and  captured  by  The  Minerva^priva- 
teer,  near  the  mouth  oIl"he  river  Mississippi.  A  claim  was  given  under 
the  diFe^tion  of  tlie  American  ambassador  for  tlie  ship  and  cargo,  ['as^ 
taken  within  the  territory  ofJheJJnited  States,  at  the  distance  of  a  mile 
andraTharf  froiTTthe  western  shore  of  the  principal  entrance  of  the 

1*  The  cases  referred  to  in  this  passage  of  the  opinion  of  the  court,  but  not 
mentioned  by  name,  are  United  States  v.  Rico,  4  Wheat.  246,  4  L.  Ed.  562 
(1819)  post,  p.  707 ;  and  Fleming  v.  Page,  9  How.  603,  13  L.  Ed.  276  (1S50\ 
post,  p.  708.  They  do  not  deal  with  the  cession  of  territory,  but  with  the 
status  of  territory  in  the  temporary  occupation  of  the  enemy. 


]  96  RIGHTS  AND  DUTIES  OF  NATIONS   IN  TIME   OF   PEACE       (Part  1 

Mississippi,  and  within  view  of  a  post  protected  by  a  gun,  and  where 
is  stationed  an  officer  of  the  United  States."     *     *     * 

Sir  W.  ScoTT.^^  *  *  *  When  the  ship  was  brought  into  this 
country,  a  claim  was  given  of  a  grave  nature,  alleging  a  violation  of 
the  territory  of  the  United  States  of  America.  This  great  leading 
fact  has  very  properly  been  made  a  matter  of  much  discussion,  and 
charts  have  been  laid  before  the  court  to  show  the  place  of  capture, 
though  with  different  representations  from  the  adverse  parties.  The 
capture  was  made,  it  seems,  at  the  mouth  of  the  river  Mississippi,  and, 
as  it  is  contended  in  the  claim,  within  the  boundaries  of  the  United 
States. 

We  all  know  that  the  rule  of  law  on  this  subject  is,  "terrse  dominium 
finitur,  ubi  finitur  armorum  vis,**  and  since  the  introduction  of  fire- 
arms, that  distance  has  usually  been  recognized  to  be  about  three  miles 
from  the  shore.  But  it  so  happens  in  this  case,  that  a  question  arises 
as  to  what  is  to  be  deemed  the  shore,  since  there  are  a  number  of 
little  mud  islands  composed  of  earth  anH  trees  drifted  down  by  the 
'yp^  I  river,  which  form  a  kind  of  portico  to  the  main  land.  It  is  contended 
that  these  are  not  to  be  considered  as  any  part  of  the  territory  of  Ameri- 
ca ;  that  they  are  a  sort  of  "no  man's  land,"  not  of  consistency  enough 
to  support  the  purposes  of  life,  uninhabited,  and  resorted  to  only  for 
shooting  and  taking  birds'  nests.  It  is  argued  that  the  line  of  terri- 
tory is  to  be  taken  only  from  the  Balize,  which  is  a  fort  raised  on  made 
land  by  the  former  Spanish  possessors.  I  am  of  a  different  opinion ; 
I  think  that  the  protection  of  territory  is  to  be  reckoned  from  these 
islands;  and  that  they  are  the  natural  appendages  of  the  coast  on 
which  they  border,  and  from  which,  indeed,  they  are  formed.  Their 
elements  are  derived  immediately  from  the  territory,^and  on  the  prin- 
ciple of  alluvium  and  increment,  on  which  so  much  is  tp  be  found  in 
the  books  of  law,  Quod  vis  fluminis  de  tuo  prsedio  detraxerit,  et  vicino 
prsedio  attulerit,  palam  tuum  remanet,  Inst.  L.  2,  tit.  1,  §  21,  even  if  it 
had  been  carried  over  to  an  adjoining  territory.  Consider  what  the 
consequence  would  be  if  lands  of  this  description  were  not  considered. 
as  appendant  to  the  main  land,  and  as  comprised  within  the  bounds  of 
territory.  If  they  do  not  belong  to  the  United  States  of  America,  any 
other  power  might  occupy  them ;  they  might  be  embanked  and  fortified. 
What  a  thorn  would  this  be  in  the  side  of  America.  It  is  physically 
possible,  at  least,  that  they  might  be  so  occupied  by  European  nations, 
and  then  the  command  of  the  river  would  be  no  longer  in  America,  but 
in  such  settlements.  The  possibility  of  such  a  consequence  is  enough 
to  expose  the  fallacy  of  any  arguments  that  are  addressed  to  show  that 
these  islands  are  not  to  be  considered  as  part  of  the  territory  of  Ameri- 
ca. Whether  they  are  composed  of  earth  or  solid  rock,  will  not  vary 
the  right  of  dominion,  for  the  right  of  dominion  does  not  depend  upon 
the  texture  of  the  soil. 

13  Only  the  portion  of  the  opinion  i-elating  to  this  question  Is  printed.    For 

the  remainder  of  the  opinion,  see  post,  p.  848. 


Ch.  3)  TERRITORY  OF   STATES  197 

I  am  of  opinion  that  the  right  of  territory  is  to  be  reckoned  from 
those  islands.  That  being  established,  it  is  not  denied  that  the  actual 
capture  took  place  within  the  distance  of  three  miles  from  the  islands, 
and  at  the  very  threshold  of  the  river.     *     *     *  ^^ 


KER  &  CO.  V.  COUDEN. 

(Supreme  Court  of  the  United  States,  1912.     223  U.  S.  268,  32  Sup.  Ct.  284, 

56  L.  Ed.  432.) 

The  facts,  which  involve  the  title  to  land  in  the  Philippine  Islands 
formed  by  action  of  the  sea,  are  stated  in  the  opinion. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  an  action  brought  by  Ker  &  Company  to  recover  possession 
of  land  held  by  the  defendant  under  a  claim  of  title  in  the  United  States. 
The  lan3~Ts  the  present  extremity  of  Sangley  Point,  in  the  Province 
of  "Cavite  and  island  of  Luzori,'projecting  into  Manila  Bay.  It  has  been 
formed  gradually  by  action  of  the  sea ;  all  of  it  since  1811,  about  three- 
"^uarters  since  1856,  and  a  part  since  1871.  For  a  long  time  the  prop- 
erty was  used  by  the  Spanish  Navy  and  it  now  is  occupied  by  the  pres^ 
ent  government  as  a  naval  station,  works  costing  more  than  half  a  mil- 
lion dollars  having  been  erected  upon  it.  The  plaintiffs  claim  title 
under  conveyances  from  the  owner  of  the  upland.  The  Philippine 
courts  held  that  under  the  Partidas,  III,  tit.  28,  laws  3,  4,  6,  24  and  26, 
and  the  Law  of  Waters  of  1866,  the  title  to  the  accretions  remained  in 
the  government,  and  the  vexed  question  has  been  brought  to  this  court. 

That  the  question  is  a  vexed  one  is  shown  not  only  by  the  different 
views  of  Spanish  commentators  but  by  the  contrary  provisions  of  mod- 
ern codes  and  by  the  occasional  intimations  of  the  doctors  of  the 
-Roman  law.  Justinian's  Institutes,  2,  1,  "20  (Gaius  II,  70),  followed  by 
the  Partidas,  3,  28,  26,  give  the  alluvial  increase  of  river  banks  to  the 
owner  of  the  bank.  If  this  is  to  be  taken  as  an  example  illustrating 
a  general  principle  there  is  an  end  of  the  matter.  But  the  Roman 
law  is  not  like  a  deed  or  a  modern  code  prepared  uno  flatu.  History 
plays  too  large  a  part  to  make  it  safe  to  generalize  from  a  single  passage 
in  so  easy  a  fashion.  Alongside  of  the  rule  as  to  rivers  we  find  that  the 
right  of  alluvion  is  not  recognized  for  lakes  and  ponds,  D.  41,  1,  12, 
a  rule  often  repeated  in  the  civil  law  codes,  e.  g.,  Philippine  Civil  Code 
of  1889,  arts.  366,  367;  Code  Napoleon,  art.  550;  Italy,  Civil  Code, 
1865,  art.  454;  Mexico,  art.  797.  If  we  are  to  generalize  the  analogy 
of  lakes  to  the  sea  is  closer  than  that  of  rivers.     We  find  further  that 

16  See  Attorney  General  of  Southern  Nigeria  v.  John  Holt  &  Co.  [1915]  L.  R. 
App.  Cas.  599  (1914),  holding  that  the  doctrine  of  accretion  only  applies  if 
it  be  natural.  In  the  ease  of  a  change  of  boundary  through  acts  of  parties 
in  what  may  be  called  artificial  accretion  or  reclamation,  the  doctrine  is  ex- 
cluded. 


198  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

In  agris  Hmitatis  jus  alluvionis  locum  non  habet.  And  the  right  of 
alluvion  is  denied  for  the  agrum  manu  captum,  which  was  limitatum  in 
order  that  it  might  be  known  (exactly)  what  was  granted.  D.  41,  1,  16. 
The  gloss  of  Accusius  treats  this  as  the  reason  for  denying  the  jus 
alluvionis.  If  this  reason  again  were  generalized,  it  might  lead  to  a 
contrary  result  from  the  passage  in  the  Institutes.  Grotius  treats  the 
whole  matter  as  arbitrary,  to  be  governed  by  local  rules,  and  both  the 
doctrine  as  to  rivers  and  the  distinction  as  to  accurately  bounded  lands 
as  rational  enough,  De  Jure  B.  &  P.  lib.  2,  cap.  8,  11,  12.  A  respect- 
able modern  writer  thinks  that  it  was  a  mistake  to  preserve  the  pas- 
sage concerning  definitely  bounded  grants  in  the  Digest,  1  Demangeat, 
Droit  Remain  (2d  Ed.)  441  ('antiquirt'  Puchta,  Pandekten,  §  165),  but 
so  far  as  we  have  observed  this  is  an  exceptional  view,  and  from  the 
older  commentators  that  we  have  examined  down  to  the  late  brilliant 
and  admirable  work  of  Girard,  Droit  Romain  (4th  Ed.)  324,  this  pas- 
sage seems  to  be  accepted  as  a  part  of  the  law.  At  all  events  it  shows 
that,  as  we  have  said,  it  is  unsafe  to  go  much  beyond  what  we  find  in 
the  books.  And  to  illustrate  a  little,  further  the  uncertainty  as  to  the 
Roman  doctrine  we  may  add  that  Donellus  mentions  the  opinion  that 
alluvion  from  the  sea  goes  to  the  private  owner  only  to  remark  that 
the  texts  cited  do  not  support  it,  De  Jur,  Civ.  IV,  c.  27,  1  Opera  (Ed, 
1828),  839  n.,  and  treats  the  rule  of  the  Institutes  as  peculiar  to  rivers, 
as  also  Vinnius  in  his  comment  on  the  passage  stating  the  rule  seems 
to  do,  while  Huberus,  on  the  other  hand,  thinks  that  rivers  furnish 
the  principle  that  ought  to  prevail.    Pra^lectiones,  II,  Tit.  1,  34. 

The  seashore  flowed  by  the  tides,  unlike  the  banks  of  rivers,  was  pub- 
lic property;  in  Spain  belonging  to  the  sovereign  power.  Inst.  II,  tit. 
1,  3,  4,  5,  D.  43,  8,  3 ;  Partidas,  III,  tit.  28,  3,  4.  And  it  is  a  somewhat 
different  proposition  from  that  laid  down  as  to  rivers  if  it  should  be 
held  that  a  vested  title  is  withdrawn  by  accessions  to  what  was  owned 
before.  Perhaps  a  stronger  argument  could  be  based  on  the  rule  that 
the  title  to  the  river  bed  changes  as  the  river  changes  its  place.  Part.  Ill, 
tit.  28,  Law  31;  Inst.  2.  2,  23.  D.  41.  7,  5.  But  we  a!re  less  con- 
cerned with  the  theory  than  with  precedent  in  a  matter  like  this,  wheth- 
er we  agree  with  Grotius  or  not  in  his  general  view.  The  Spanish 
commentators  do  not  help  us,  as  they  go  little  beyond  a  naked  state- 
ment one  way  or  the  other.  It  seems  to  us  that  the  best  evidence 
of  the  view  prevailing  in  Spain  is  to  be  found  in  the  codification  which 
presumably  embodies  it.  The  Law  of  Waters  of  1866,  which  became 
effective  in  the  Philippines  in  September,  1871,  and  the  validity  of 
which  we  see  no  reason  to  doubt,  after  declari^  like  tlie  Partidas  that 
the  shores  (playas),  or  spaces  alternately  covered  and  uncovered  by 
the  sea,  are  part  of  the  national  domain  and  for  public  use,  arts.  1,  3, 
goes  on  thus:  "Art.  4,  The  lands  added  to  the  shores  by  the  acces- 
sions and  accretions  caused  by  the  sea  belong  to  the  public  domain. 
When  they  are  not  (longer)  washed  by  the  waters  of  the  sea,  and  are 
not  necessary  for  objec^  of  public  utility,_^nor  for  the  establishment  of 


Ch.  3)  TERRITORY   OF   STATES  199 

special  industries,  nor  for  the  coast  guard  service,  the  government  shall 
[will?]  declare  them  property  of  the  adjacent  estates,  in  increase  of  the 
same." 

Notwithstanding  the  argument  that  this  article  is  only  a  futile  decla- 
ration concerning  accessions  to  the  shore  while  it  remains  such  in  a 
literal  sense,  that  is,  washed  by  the  tide,  we  think  it  plain  that  it  inj 
eludes  and  principally  means  additions  that  turn  the  shore  to  dry  land. 
These  all  remain  subject  to  public  ownership  unless  and  until  the 
Government  shall  decide  that  they  are  not  needed  for  the  purposes  men-_ 
tioned  and  shall  declare  them  to  belong  to  the  adjacent  estates.  The 
later  provision  in  Article  9,  that  the  public  easement  for  salvage,  &c., 
shall  advance  and  recede  as  the  sea  recedes  or  advances,  simply  de- 
termines that  neither jpublicjnor  private  ownership,  shall  exclude-  tlie_ 
customary  public  use  from  the  new  place.  The  Spanish  Law  of  Ports 
of  1880,  like  the  Law  of  Waters,  asserts  the  title  of  the  State  although 
it  confers  private  rights  when  there  is  no  public  need. 

The  presumption  that  the  foregoing  provisions  of  the  Law  of  Waters 
express  the  understanding  of  the  codifiers  as  to  what  the  earlier  law 
had  been,  becomes  almost  inexpugnable  when  we  find  that  the  other 
leading  civil  law  countries  have  adopted  the  same  doctrine.  The  Code 
Napoleon,  after  laying  down  the  Roman  rule  for  alluvion  in  rivers, 
arts.  556,  557,  adds  at  the  end  of  the  latter  article:  "Ce  droit  n'a  pas 
lieu  a  regard  des  relais  de  la  mer,"  which  seems  to  have  been  adopted 
without  controversy  at  the  Conference.  See  further  Marcade,  Ex- 
plication, 5th  ed.  vol.  2,  p.  439.  And  compare  2  Hall's  Am.  Law  Jour- 
nal, 307,  324,  329,  333.  The  Civil  Code  of  Italy,  1865,  art.  454,  is  to 
similar  effect.  See  also,  Chile,  Civil  Code  art.  650.  The  Supreme 
Court  of  Louisiana  in  like  manner  confines  the  pri\iate  acquisition  of 
alluvion  to  rivers  and  running  streams,  and  denies  the  private  right 
in  the  case  of  lakes  and  the  sea.  Zeller  v.  Yacht  Club,  34  La.  Ann.  837. 
And  the  provision  of  the  Louisiana  Code,  art.  510,  is  like  those  of 
France,  Italy  and  Spain.  The  court  ^f  first  instance  below  refers  to 
judgments  of  the  Supreme  Court  of  Spain  that  seems  to  look  in  the 
same  direction.  We  have  neither  heard  nor  found  anything  on  the  oth- 
er side  that  seems  to  us  to  approach  the  foregoing  considerations  in 
weight,  not  to  speak  of  the  respect  that  we  must  feel  for  the  concurrent 
opinion  of  both  the  courts  below  upon  a  matter  of  local  law  with  which 
they  are  accustomed  to  deal.  Of  course  we  are  dealing:  \yith  the- law  ol_ 
the  Philippines,  not  with  that  which  prevails  in  this  country,  whether 
of  mixed  antecedents  or  the  common  law. 

As  the  case  was  brought  up  on  the  single  question  that  we  have  dis- 
cussed the  judgment  of  the  court  below  must  be  affirmed. 

Judgment  affirmed. 

Mr.  Justice  McKenn^-^,  dissenting. 

I  cannot  agree  with  the  conclusion  of  the  court.    It  seems  to  be  con- 
ceded that  it  is  not  necessarily  determined  by  the  authorities  which 


200  RIGHTS   AND   DUTIES   OP   NATIONS   IN   TIME   OF   PEACE       (Part  1 

are  cited.  I  think  the  better  deduction  from  them  is  that  they  only 
declare  the  constant  integrity  of  the  shore,  and  the  dominion  of  the 
government  over  it  whether  it  recede  or  advance.  When  it  ceases  to 
be  washed  by  the  tides  or  the  seas  it  becomes  part  of  the  upland  and 
belongs  to  the  owner  of  the  upland.  And  this  is  but  the  application  of 
the  principle,  said  to  be  Of  natural  justice,  that  he  who  loses  by  the 
encroachments  of  the  sea  should  gain  by  its  recession.  Banks  v.  Og- 
den,  2  Wall.  57,  Q,  17  L.  Ed.  818.^^ 


SECTION  2.— BOUNDARIES 
I.  Rivers  ^' 


HANDLY'S  LESSEE  v.  ANTHONY. 

(Supreme  Court  of  the  United  States,  1820.    5  Wheat.  374,_5  L.  Ed.  113.) 

Mr.  Chief  Justice  Marshall  delivered  the  opinion  of  the  court. 

This  was  an  ejectment  brought  in  the  Circuit  Court  of  the  United 
States  for  the  District  of  Kentucky,  to  recover  land  ,which  the  plain- 
tiff claims  under  a  grant  from  the  State  of  Kentucky,  and  which  the 
defendants  hold  under  a  grant  from  the  United  States  as  being  part 

1'  The  passage  to  which  Mr.  Justice  McKenna  refers  is  as  follows : 

"The  rule  governing  additions  made  to  laud,  bounded  by  a  river,  lake,  or 
sea,  has  been  much  discussed  and  variously  settled  by  usage  and  by  positive 
law.  Almost  all  jurists  and  legislators,  however,  both  ancient  and  modern, 
have  agreed  that  the  owner  of  the  land,  thus  bounded,  is  entitled  to  these 
additions.  By  some,  the  rule  has  Been  vindicated  on  the  principle  of  natural 
justice,  that  he  who  sustains  the  burden  of  losses  and  of  repairs,  imposed  by 
the  contiguity  of  waters,  ought  to  receive  whatever  benefits  they  may  brin.i; 
by  accretion ;  by  others,  it  is  derived  from  the  principle  of  public  policy,  that 
it  is  the  interest  of  the  community  that  all  land  should  have  an  owner,  and 
most  convenient,  that  insensible  additions  to  the  shore  should  follow  the  title 
to  the  shore  itself. 

"There  is  no  question  in  this  case  that  the  acci'etion  from  Lake  Michigan 
belongs  to  the  proprietor  of  land  bounded  by  the  lake.  The  controversy  turns 
on  ownership."  Per  Mr.  Chief  Justice  Chase  in  Banks  v.  Ogden,  2  Wall.  57, 
67,  17  L.  Ed.  818  (1864). 

For  more  elaborate  treatment  of  the  doctrine  of  accretion,  see  New  Orleans 
v.  United  States,  10  Pet.  662,  9  L.  Ed.  573  (1836) ;  County  of  St.  Clair  v.  Lov- 
ingston,  23  Wall.  46,  23  L.  Ed.  59  (1874). 

18  "It  seems  difficult  upon  principle  to  support  the  right  to  the  free  use  of 
rivers  as  a  right  stricti  juris.  While  this  is  not  expressly  admitted,  it  is  tacit- 
ly conceded  by  nearly  all  the  advocates.  They  define  this  right  of  use  as  an 
'imperfect  right.'  The  term  is  an  anomaly.  The  fallacy  is  thus  aptly  stated 
by  a  learned  authority  on  international  law :  'A  right,  it  is  alleged,  exists ; 
but  it  is  an  imperfect  one,  and  therefore  its  enjoyment  may  always  be  sub- 
jected to  such  conditions  as  are  required  in  the  judgment  of  the  state  whose 


Ch.  3)  TERRITORY  OF  STATES  201 

of  Indiana.  The  title  depends  upon  the  question  whether  the  lands 
He  in  the  State  of  Kentucky,  or  in  the  State  of  Indiana. 

At  this  place,  as  appears  from  the  plat  and  surveyor's  certificate, 
the  Ohio  turns  its  course,  and  runs  southward  for  a  considerable  dis- 
tance, and  then  takes  a  northern  direction,  until  it  approaches  within 
less  than  three  miles,  as  appears  from  the  plat,  of  the  place  where 
its  southern  course  commences.  A  small  distance  above  the  narrow- 
est part  of  the  neck  of  land  which  is  thus  formed,  a  channel,  or  what 
is  commonly  termed  in  that  country  a  bayou,  makes  out  of  the  Ohio, 
and  enters  the  same  river  a  small  distance  below  the  place  where  it 
resumes  its  westward  course.  This  channel,  or  bayou,  is  about  nine 
miles  by  its  meanders,  three  miles  and  a  half  in  a  straight  line,  and 
from  four  to  five  poles  wide.  The  circuit  made  by  the  river  appears 
to  be  from  fifteen  to  twenty  miles.  About  midway  of  the  channel  two 
branches  empty  into  it  from  the  northwest,  between  six  and  seven 
hundred  yards  from  each  other ;  the  one  of  which  runs  along  the  chan- 
nel at  low  water,  eastward,  and  the  other  westward,  until  they  both 
enter  the  main  river.  Between  them  is  ground  over  which  the  waters 
of  the  Ohio  do  not  pass  until  the  river  has  risen  about  ten  feet  above 
its  lowest  state.  It  rises  from  forty  to  fifty  feet,  and  all  the  testimony 
proves  that  this  channel  is  made  by  the  waters  of  the  river,  not  of  the 
creeks  which  empty  into  it.  The  people  who  inhabit  this  peninsula,  or 
island,  have  always  paid  taxes  to  Indiana,  voted  in  Indiana,  and  been 
considered  as  within  its  jurisdiction,  both  while  it  was  a  territory,  and 
since  it  has  become  a  state.  The  jurisdiction  of  Kentucky  has  never 
been  extended  over  them.  .,,-     , 

The  question  whether  the  lands  in  controversy  lie  within  the  State 

property  is  affected,  and  for  suflBcient  cause  it  may  be  denied  altogether.' 
Hall,  p.  140. 

"Woolsey  terms  it  'only  a  moral  or  imperfect  right  to  navigation.' 
"However,  it  is  no  longer  to  be  doubted  that  the  reason  of  the  thing  and  the 
opinion  of  other  jurists,  spoken  generally,  seem  to  agree  in  holding  that  the 
right  can  only  be  what  is  called  (however  improperly)  by  Vattel  and  other 
writers  imperfect,  and  that  the  state  through  whose  domain  the  passage  is 
to  be  made  'must  be  the  sole  judge  as  to  whether  it  is  innocent  or  injurious  in 
its  character.'  Phillimore,  CLVII,  citing  Puffendorf,  Wheaton's  Elements  of 
International  law,  Hesty's  Law  of  Nations,  Wolff's  Institutes,  and  Vattel." 

Per  Duffield,  Umpire,  in  The  Faber  Case,  German-Venezuelan  Commission  of 
10(1.3,  Ralston's  Reports  of  Venezuelan  Arbitrations,  600,  630  (1903). 
The  Faber  Case  decided  in  effect,  as  stated  by  the  headnote,  that : 
"States  through  the  territoi'y  of  which  navigable  streams  flow,  although 
these  streams  rise  in  the  territory  of  other  states,  have  the  right  to  close  these 
rivers  to  navigation  at  their  discretion,  and  no  appeal  will  lie  therefrom. 
This  doctrine  would  seem  to  apply  even  though  these  rivers  emptied  directly 
into  the  sea,  instead  of  debouching  into  an  inland  lake,  as  in  the  case  luider 
consideration,  wholly  within  the  territory  of  the  state  seeking  to  control  the 
navigation  of  these  rivers.  This  doctrine  being  applicable  to  the  inhabitants 
of  the  state  at  the  headwaters  of  the  streams  is  all  the  more  applicable  to 
domiciled  foreigners." 

This  case  contains  a  citation  of  authorities  and  numerous  quotations  from 
publicists  of  international  standing. 


202  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

of  Kentucky  or  of  Indiana,  depends  chiefly  on  the  land  law  of  Virginia, 
and  on  the  cession  made  by  that  State  .to  the  United  States. 

Both  Kentucky  and  Indiana  were  supposed  to  be  comprehended 
within  the  charter  of  Virginia  at  the  commencement  of  the  war  of 
our  revolution.  At  an  early  period  of  that  war,  the  question  whether 
the  immense  tracts  of  unsettled  country  which  lay  within  the  charters 
of  particular  states,  ought  to  be  considered  as  the  property  of  those 
states,  or  as  an  acquisition  made  by  the  arms  of  all,  for  the  benefit 
of  all,  convulsed  our  confederacy,  and  threatened  its  existence.  It  was 
probably  with  a  view  to  this  question  that  Virginia,  in  1779,  when  she 
opened  her  land  office,  prohibited  the  location  or  entry  of  any  land 
"on  the  northwest  side  of  the  river  Ohio." 

In  September,  1780,  Congress  passed  a  resolution,  recommending 
"to  the  several  states  having  claims  to  waste  and  unappropriated 
lands  in  the  western  country,  a  liberal  cession  to  the  United  States, 
of  a  portion  of  their  respective  claims,  for  the  common  benefit  of  the 
Union."  And  in  January,  1781,  the  commonwealth  of  Virginia  yield- 
ed to  the  United  States  "all  right,  title,  and  claim,  which  the  said 
Commonwealth  had  to  the  territory  northwest  of  the  river  Ohio,  sub- 
ject to  the  conditions  annexed  to  the  said  act  of  cession."  One  of 
these  conditions  is,  "that  the  ceded  territory  shall  be  laid  out  and 
formed  into  states."  Congress  accepted  this  cession,  but  proposed 
some  small  variation  in  the  conditions,  which  was  acceded  to;  and  in 
1783  Virginia  passed  her  act  of  confirmation,  giving  authority  to  her 
members  in  Congress  to  execute  a  deed  of  conveyance. 

It  was  intended  then  by  Virginia,  when  she  made  this  cession  to 
the  United  States,  and  most  probably  when  she  opened  her  land  office, 
that  the  great  river  Ohio  should  constitute  a  boundary  .between,,  the 
States  which  might  be  formed  on  its  opposite  banks.  This  intention 
ought  never  to  be  disregarded  in  construing  this  cession. 

At  the  trial,  the  counsel  for  the  defendants  moved  the  court  to  in- 
struct the  jury,  1.  That  the  lessor  of  the  plaintiff  cannot  recover,  the 
land  in  contest  not  being  at  any  time  subject  to  the  laws  of  Kentucky, 
but  to  those  of  Indiana.  2.  Because  the  evidence  does  not  show  that 
the  land  is  within  the  limits  of  the  state  of  Kentucky.  The  court  in- 
structed the  jury,  that,  admitting  that  the  western  and  north-western 
boundary  of  Kentucky  included  all  the  islands  of  the  Ohio,  and  ex- 
tended to  the  western  and  north-western  bank  of  the  Ohio,  yet  no 
land  could  be  called  an  island  of  that  river,  unless  it  was  surrounded 
by  the  waters  of  the  Ohio  at  low-water  mark ;  and  to  low-water  mark 
only,  on  the  western  or  north-western  side  of  the  Ohio,  did  the  boun- 
daries of  the  state  of  Kentucky  extend.  The  counsel  for  the  plaintiff 
excepted  to  this  opinion,  and  then  moved  the  court  to  instruct  the  jury, 
that  if  they  found  the  land  in  question  was  covered  by  the  grant  to 
the  lessor  of  the  plaintiff,  and  that  it  was  surrounded  by  a  regular  wa- 
ter-channel of  the  Ohio  on  the  north-western  side^  and  was,  at  the  mid- 


Ch.  3)  TERRITORY  OP   STATES  203 

die  and  usual  state  of  the  water  in  Ohio,  embraced  and  surrounded  by 
the  water  of  the  Ohio  flowing  in  said  channel,  it  was  an  island, 
and  within  the  state  of  Kentucky.  But  the  court  refused  to  give  the 
instructions  aforesaid,  but  instructed  the  jury,  that  if  the  water  did  not 
run  through  said  channel  at  low  water,  but  left  part  thereof  dry,  it  was 
not  an  island,  nor  within  the  state  of  Kentucky.  To  this  opinion,  also, 
the  counsel  for  the  plaintiff  excepted.  The  jury  found  a  verdict  for 
the  defendant^  on  which  the  court  rendered  judgment,  which  judgment 
is  now  before  this  court  on  a  writ  of  error. 

The  two  exceptions  present  substantially  the  same  questions  to  the 
court,  and  may  therefore  be  considered  together.  They  are,  whether 
land  is  properly  denominated  an  island  of  the  Ohio,  unless  it  be  sur- 
rounded with  the  water  of  the  river,  when*low?  and  whether  Kentucky 
was  bounded  on  the  west  and  northwest  by  the  low  water  mark  of  the 
river,  or  at  its  middle  state?  or,  in  other  words,  whether  the  state  of 
Indiana  extends  to  low-water  mark,  or  stops  at  the  line  reached  by  the 
river  when  at  its  medium  height? 

In  pursuing  this  inquiry,  we  must  recollect  that  it  is  not  the  bank 
of  the  river,  but  the  river  itself,  at  which  the  cession  of  Virginia  com- 
mences. She  conveys  to  Congress  all  her  right  to  the  territory  "situ- 
ate, lying,  and  being  to  the  northwest  of  the  river  Ohio."  And  this 
territory,  according  to  express  stipulation,  is  to  be  laid  off  into  inde- 
pendent states.  These  states,  then,  are  to  have  the  river  itself,  wher- 
ever that  may  be,  for  their  boundary.  This  is  a  natural  boundary, 
and  in  establishing  it,  Virginia  must  have  had  in  view  the  convenience 
of  the  future  population  of  the  country. 

When  a  great  river  is  the  boundary  between  two  nations  or  states, 
if  the  original  property  is  in  neither,  and  there  be  no  convention 
respecting  it,  each  holds  to  the  middle  of  the  stream.  But  when,  as 
in  this  case,  one  state  is  the  original  proprietor,  and  grants  the  ter- 
_ritory  on  one  side  only,  it  retains  the  river  within  its  own  domain, 
and  the  newly  created  state  extends  to  the  river  only.  The  river, 
however,  is  its  boundary. 

"In  case  of  doubt,"  says  Vattel,  "every  country  lying  upon  a  river, 
is  presumed  to  have  no  other  limits  but  the  river  itself ;  because  noth- 
ing is  more  natural  than  to  take  a  river  for  a  boundary,  when  a  state 
is  established  on  its  border;  and  wherever  there  is  a  doubt,  that  is 
always  to  be  presumed  which  is  most  natural  and  most  probable." 

"If,"  says  the  same  author,  "the  country  which  borders  on  a  river, 
has  no  other  limits  than  the  river  itself,  it  is  in  the  number  of  terri- 
tories that  have  natural  or  indetermined  limits,  and  it  enjoys  the  right 
of  alluvion."    Lib.  1,  c.  22,  §  268. 

Any  gradual  accretion  of  land,  then,  on  the  Indiana  side  of  the 
Ohio,  would  belong  to  Indiana,  and  it  is  not  very  easy  to  distinguish 
between  land  thus  formed,  and  land  formed  by  the  receding  of  the 
water. 


204  RIGHTS   AND   DUTIES  OF   NATIONS   IN  TIME  OF   PEACE       (Part  1 

If,  instead  of  an  annual  and  somewhat  irregular  rising  and  falling 
of  the  river,  it  was  a  daily  and  almost  regular  ebbing  and  flowing  of 
the  tide,  it  would  not  be  doubted  that  a  country  bounded  by  the  river 
would  extend  to  low-water  mark.  This  rule  has  been  established  by 
the  common  consent  of  mankind.  It  is  founded  on  common  conven- 
ience. Even  when  a  state  retains  its  dominion  over  a  river  which 
constitutes  the  boundary  between  itself  and  another  state,  it  would 
be  extremely  inconvenient  to  extend  its  dominion  over  the  land  on 
the  other  side,  which  was  left  bare  by  the  receding  of  the  water. 
And  this  inconvenience  is  not  less  where  the  rising  and  falling  is 
annual,  than  where  it  is  diurnal.  Wherever  the  river  is  a  boundary 
between  states,  it  is  the  main,  the  permanent  river,  which  constitutes 
that  boundary;  and  the  mind  will  find  itself  embarrassed  with  insur- 
mountable difficulty  in  attempting  to  draw  any  other  line  than  the 
low-water  mark. 

When  the  state  of  Virginia  made  the  Ohio  the  boundary  of  states, 
she  must  have  intended  the  great  river  Ohio,  not  a  narrow  bayou  into 
which  its  waters  occasionally  run.  All  the  inconvenience  which  would 
result  from  attaching  a  narrow  strip  of  country  lying  on  the  north- 
west side  of  that  noble  river  to  the  states  on  its  southeastern  side,  would 
result  from  attaching  to  Kentucky,  the  state  on  its  southeastern  border 
a  body  of  land  lying  northwest  of  the  real  river,  and  divided  from  the 
mainland  only  by  a  narrow  channel,  through  the  whole  of  which  the 
waters  of  the  river  do  not  pass,  until  they  rise  ten  feet  above  the  low- 
water  mark. 

The  opinions  given  by  the  court  must  be  considered  in  reference 
to  the  case  in  which  they  were  given.  The  sole  question  in  the  cause 
respected  the  boundary  of  Kentucky  and  Indiana;  and  the  title  de- 
pended entirely  upon  that  question.  The  definition  of  an  island  which 
the  court  was  requested  to  give,  was  either  an  abstract  proposition, 
which  it  was  unnecessary  to  answer,  or  one  which  was  to  be  answered 
according  to  its  bearing  on  the  facts  in  the  cause.  The  definition  of  an 
island  was  only  material  so  far  as  that  definition  might  aid  in  fixing  the 
boundary  of  Kentucky.  In  the  opinion  given  by  the  court  on  tlie  mo- 
tion made  by  the  counsel  for  the  defendants,  they  say  that  "no  land  can 
be  called  an  island  of  the  Ohio,  unless  it  be  surrounded  by  the  waters 
of  that  river  at  low-water  mark."  We  are  not  satisfied  that  this  defini- 
tion is  incorrect,  as  respected  the  subject  before  the  court;  but  it  is 
rendered  unimportant,  by  the  subsequent  member  of  the  sentence,  in 
which  they  say,  "that  to  low-water  mark  only,  on  the  western  and  north- 
western side  of  the  Ohio,  does  the  state  of  Kentucky  extend." 

So,  in  the  motion  made  by  the  counsel  for  the  plaintiff,  the  court 
was  requested  to  say,  that  if  the  waters  of  the  Ohio  flowed  in  the 
channel,  in  its  middle  and  usual  state,  it  was  not  only  an  island,  but 
"within  the  state  of  Kentucky." 

If  the  land  was  not  within  the  state  of  Kentucky,  the  court  could 


Ch.  3)  TERRITORY  OF   STATES  205 

not  give  the  direction  which  was  requested.  The  court  gave  an  in- 
struction substantially  the  same  with  that  which  had  been  given  on 
the  motion  of  the  defendant's  counsel. 

If  it  be  true,  that  the  river  Ohio,  not  its  ordinary  bank,  is  the  bound 
ary  of  Indiana,  the  hmits  of  that  state  can  be  determined  only  by 
the" river  itself.    The  same  tract  of  land  cannot  be  sometimes  in  Ken- 
tucky, and  sometimes  in  Indiana,  according  to  the  rise  and  fall  of  the 
river.    It  must  be  always  in  the  one  state,  or  the  other. 

There  would  be  little  difficulty  in  deciding,  that  in  any  case  other 
than  land  which  was  sometimes  an  island,  the  state  of  Indiana  would 
extend  to  low-water  mark.  Is  there  any  safe  and  secure  principle,  on 
which  we  can  apply  a  different  rule  to  land  which  is  sometimes,  though 
not  always,  surrounded  by  water  ? 

So  far  as  respects  the  great  purposes  for  which  the  river  was  taken 
as  the  boundary,  the  two  cases  seem  to  be  within  the  same  reason, 
and  to  require  the  same  rule.  It  would  be  as  inconvenient  to  the 
people  inhabiting  this  neck  of  land,  separated  from  Indiana  only  by 
a  bayou  or  ravine,  sometimes  dry  for  six  or  seven  hundred  yards  of 
its  extent,  but  separated  from  Kentucky  by  the  great  river  Ohio,  to 
form  a  part  of  the  last-mentioned  state,  as  it  would  for  the  inhabi- 
tants of  a  strip  of  land  along  the  whole  extent  of  the  Ohio,  to  form  a 
part  of  the  state  on  the  opposite  shore.  Neither  the  one  nor  the  other 
can  be  considered  as  intended  by  the  deed  of  cession. 

If  a  river,  subject  to  tides,  constituted  the  boundary  of  a  state,  and 
at  flood  the  waters  of  the  river  flowed  through  a  narrow  channel, 
round  an  extensive  body  of-  land,  but  receded  from  that  channel  at 
ebb,  so  as  to  leave  the  land  it  surrounded  at  high  water,  connected 
with  the  main  body  of  the  country;  this  portion  of  territory  would 
scarcely  be  considered  as  belonging  to  the  state  on  the  opposite  side 
of  the  river,  although  that  state  should  have  the  property  of  the  river. 
The  principle  that  a  country  bounded  by  a  river  extends  to  low-water 
mark,  a  principle  so  natural,  and  of  such  obvious  convenience  as  to 
have  been  generally  adopted,  would,  we  think,  apply  to  that  case.  We 
perceive  no  sufficient  reason  why  it  should  not  apply  to  this. 

The  case  is  certainly  not  without  its  difficulties;  but  in  great  ques- 
tions which  concern  the  boundaries  of  states,  where  great  natural 
boundaries  are  established  in  general  terms,  with  a  view  to  public 
convenience,  and  the  avoidance  of  controversy,  we  think  the  great 
object,  where  it  can  be  distinctly  perceived,  ought  not  to  be  defeated 
by  those  technical  perplexities  which  may  sometimes  influence  con- 
tracts between  individuals.  The  state  of  Virginia  intended  to  make 
the  great  river  Ohio,  throughout  its  extent,  the  boundary  between 
the  territory  ceded  to  the  United  States  and  herself.  When  that  part  of 
Virginia,  which  is  now  Kentucky,  became  a  separate  state,  the  river  was 
the  boundary  between  the  new  states  erected  by  Congress  in  the  ceded 
territory,  and  Kentucky.     Those  principles  and  considerations  which 


206  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

produced  the  boundary,  ought  to  preserve  it.  They  seem  to  us  to 
require,  that  Kentucky  should  not  pass  the  main  river,  and  possess 
herself  of  lands  lying  on  the  opposite  side,  although  they  should,  for  a 
considerable  portion  of  the  year,  be  surrounded  by  the  waters  of  the 
river  flowing  into  a  narrow  channel. 

It  is  a  fact  of  no  inconsiderable  importance  in  this  case,  that  the 
inhabitants  of  this  land  have  uniformly  considered  themselves,  and 
have  been  uniformly  considered,  both  by  Kentucky  and  Indiana,  as 
belonging  to  the  last-mentioned  state.  No  diversity  of  opinion  appears 
to  have  existed  on  this  point.  The  water  on  the  northwestern  side  of 
the  land  in  controversy,  seems  not  to  have  been  spoken  of  as  a  part  of 
the  river,  but  as  a  bayou.  The  people  of  the  vicinage,  who  viewed  the 
river  in  all  its  changes,  seem  not  to  have  considered  this  land  as  being  an 
island  of  the  Ohio,  and  as  a  part  of  Kentucky,  but  as  lying  on  the  north- 
western side  of  the  Ohio,  and  being  a  part  of  Indiana. 

The  compact  with  Virginia,  under  which  Kentucky  became  a  state, 
stipulates  that  the  navigation  of,  and  jurisdiction  over,  the  river, 
shall  be  concurrent  between  the  new  states,  and  the  states  which  may 
possess  the  opposite  shores  of  the  said  river.  This  term  seems  to  be  a 
repetition  of  the  idea  under  which  the  cession  was  made.  The  shores 
of  a  river  border  on  the  water's  edge. 

Judgment  afifirmed,  with  costir 


BUTTENUTH  et  al.  v.  ST.  LOUIS  BRIDGE  CO. 

(Supreme  Court  of  Illinois,  18S8.    123  111.  535,  17  N.  E.  439,  5  Am.  St.  Rep. 

545.) 

Scott,  J."  It  is  alleged  that  complainant,  the  St.  Louis  Bridge 
Company,  is  the  legal  successor  of  the  Illinois  &  St.  Louis  Bridge  Com- 
pany, which  was  incorporated  in  1868,  and  which  constructed  a  bridge 
over  the  Mississippi  river  from  East  St.  Louis  to  St.  Louis.  The  work 
was  completed  on  the  4th  day  of  July,  1874,  and  from  that  time  on 
the  bridge  was  operated  by  the  original  corporation  until  September  20, 
1878,  when  it  was  sold  under  a  decree  of  court,  and  passed  to  com- 
plainant, and  has  since  been  operated  and  controlled  by  it.  Only  two 
persons  are  named  as  defendants.  One  is  William  Buttenuth,  the  as- 
sessor for  the  year  1885  for  the  town  in  which  the  property  is  situated, 
and  the  other  is  Philip  Rhein,  who  M^as  then  county  clerk  of  the  coun- 
ty in  which  the  property  is  situated.  Two  principal  grounds  of  relief 
are  relied  upon :  (1)  That  complainant's  property  was  assessed  so  high, 
in  proportion  to  other  property  in  the  town,  that  it  was  a  fraud  on  its 
rights,  and  was  oppressive;  and  (2)  that  a  portion  of  the. bridge  that 
was  in  fact  within  the  state  of  Missouri  was  assessed  to  complainant  by 
the  local  assessor  as  property  situated  in  this  state.    The  bill  contains 

1^  Part  of  the  opinion  is  omitted. 


Ch.  3)  TERRITORY  OF   STATES  207 

other  matters  of  complaint  of  a  less  serious  nature,  some  of  which  may 
be  noticed  further  on.  The  specific  prayer  of  the  bill  is  that  the  assess- 
ment may  be  set  aside,  and  that  defendant  Rhein,  the  county  clerk,  be 
enjoined  and  restrained  from  extending  any  taxes  on  the  assessment 
made  on  complainant's  property.  *  *  *  Qn  the  final  hearing  the 
court  found  the  assessment  complained  of  was  so  grossly  dispropor- 
tionate to  the  valuation  of  other  property  in  the  township,  and  so  ex- 
cessive, as  to  amount  to  a  fraud  on  complainant;  and  the  court  further 
found  that  part  of  the  bridge  structure,  that  is  to  say,  all  of  that  part 
that  lies  west  of  the  easternmost  pier  of  the  bridge,  is  outside  of  the 
limits  of  the  state  of  Illinois,  and  was  illegally  assessed  and  included  in 
the  assessment  with  that  part  of  the  bridge  which  is  within  the  limits 
of  the  state  of  Illinois.     *     *     * 

It  is  so  obvious  the  proposition  needs  no  discussion,  where  the  exces- 
sive valuation  complained  of  is  the  result  of  a  mere  honest  error  in 
judgment  on  the  part  of  the  assessor  making  the  assessment,  chancery 
has  no  jurisdiction  to  afford  the  party  aggrieved  any  relief.     *     *     * 

On  the  whole  evidence  considered,  it  does  not  appear  that  the  valua- 
tion placed  upon  complainant's  property  is  so  much  higher  in  propor- 
tion to  that  placed  on  other  property  in  the  town  that  it  is  fraudulent 
for  that  reason.  Nor  does  it  appear  from  anything  contained  in  this 
record  that  the  assessment  is  excessive  in  itself.  There  is  no  evidence 
oi  the  value  of  that  part  of  the  bridge  and  its  approaches  subject  to 
taxation  in  this  state ;  and  without  evidence  of  its  value  it  cannot  be 
declared,  as  a  matter  of  fact,  that  the  present  valuation  is  excessive 
to  that  degree  that  it  is  fraudulent  in  law. 

The  remaining  ground  of  relief  insisted  upon  is,  that  part  of  the 
bridge  structure  which  lies  west  of  its  easternmost  pier  is  outside  of 
the^  State  of  Illinois,  and  was  illegally  assessed  and  included  in  the 
assessment  with  that  part  which  is  confessedly  within  the  limits  of 
the  State.  On  this  branch  of  the  case  some  evidence  was  offered,  and 
some  discussion  has  been  had  as  to  the  boundary  line  between  the 
States  of  Missouri  and  Illinois  at  the  point  where  the  bridge  struc- 
ture spans  the  Mississippi  River.  That  question  is  certainly  one  of 
great  gravity,  and  one  this  court  will  hardly  undertake  to  determine 
definitely  on  the  meagre  evidence  to  be  found  in  this  record,  and  in 
a  case  where  neither  State  is  represented,  and  where  there  are  no 
defendants  other  than  private  citizens,  neither  of  whom  had  the  slight- 
est personal  interest  in  the  matter.  The  utmost  this  court  will  assume 
to  decide  is,  what  part  of  complainant's  bridge  is  to  be  regarded  as 
within  the  State  of  Illinois  for  the  purposes  of  taxation,  or,  what  is 
the  same  thing,  does  the  valuation  of  complainant's  property,  as  made 
by  tlie  assessor  for  1885,  include  any  portion  of  the  bridge  not  subject 
to  taxation  in  this  State. 

It  is  certain  no  part  of  that  portion  of  the  bridge  structure  assessed 
by  the  local  assessor  for  taxation  in  this  State  is  in  the  State  of  Mis- 


208  RIGHTS  AND  DUTIES  OF   NATIONS   IN   TIME  OF   PEACE       (Part  1 

souri,  nor  does  it  appear  that  it  was  ever  subject  to  taxation  in  that 
State.  In  the  act  of  Congress,  March  6,  1820  (3  U.  S.  Stat,  at  Large, 
p.  545),  to  enable  the  territory'  of  Alissouri  to  form  a  constitution,  in 
fixing  the  boundaries  it  is  declared,  "thence  due  east  to  the  middle  of 
the  main  channel  of  the  Mississippi  River,  thence  down  and  follow- 
ing the  course  of  the  Mississippi  River,  in  the  middle  of  the  main 
channel  thereof."  The  State  of  Missouri,  by  its  constitution  of  1820, 
ratified  the  boundaries  as  fixed  by  the  enabling  act  of  Congress,  and 
there  can  be  no  pretence  the  eastern  boundary  of  the  State  has  since 
been  changed.  The  constitution  of  1875,  of  that  State,  simply  rati- 
fied and  confirmed  the  boundaries  of  the  State  as  estabHshed  by  law. 
Notwithstanding  the  fact  the  main  channel  of  the  river  might  be 
changed  by  imperceptible  natural  wear  on  one  side,  or  by  gradual 
formation  of  alluvions,  still  "the  middle  of  the  main  channel,"  when 
ascertained,  would  be  the  boundary  of  the  State.  It  might  be  a  slight- 
ly shifting  hne,  hardly  perceptible ;  still  it  would  be  a  well-known  and 
easily  ascertainable  boundary  line.  The  rule  of  law  is,  when  a  stream 
dividing  co-terminous  States,  being  a  boundary  line,  alters  its  channel 
by  a  gradual  or  imperceptible  process  of  wear  or  of  alluvions,  the 
boundary  shifts  with  the  channel.  No  matter  what  conclusion  might 
be  reached  as  to  the  western  boundary  of  Illinois,  it  cannot  be  maintain- 
ed the  eastern  boundary  of  the  State  of  Missouri  is  farther  east  than 
the  "middle  of  the  main  channel"  of  the  Mississippi  at  the  point  wherl 
the  bridge  structure  spans  that  river.  It  is  not  alleged  in  the  bill,  nor 
claimed  in  argument,  any  portion  of  the  bridge  assessed  by  the  local 
assessor  in  this  State  lies  west  of  the  "middle  of  the  main  channel"  of 
the  river.  It  would  seem  to  follow,  therefore,  if  that  portion  of  the 
bridge  included  in  the  assessment  that  lies  between  the  eastern  pier  of 
the  bridge  and  the  "middle  of  the  main  channel"  of  the  river,  is  not 
within  the  limits  of  the  State  of  Illinois,  it  is  not  included  within  the 
defined  boundaries  of  either  State.  That  conclusion  will  hardly  be 
adopted,  unless  the  question  will  admit  of  no  other  solution. 

The  act  of  Congress  of  April  18,  1818,  to  enable  the  people  of  the 
Territory  of  Illinois  to  form  a  State  constitution,  fixed  the  western 
boundary  at  the  "middle  of  the  Mississippi  River,"  and  declared  the 
State  should  have  concurrent  "jurisdiction  on  the  Mississippi  River 
with  any  State  or  States  to  be  formed  _we5JL  thereof,  so  far  as  said 
river  shall  form  a  common  boundary  to  both."  By  the  constitution 
of  1818,  the  people  ratified  the  boundaries  fixed  for  the  State  by  the 
enabling  act  of  Congress,  and  in  the  constitutions  of  1848  and  of  1870 
the  same  boundaries  and  jurisdiction  are  declared,  except  in  the  two 
last  constitutions  it  is  provided  "this  State  shall  exercise  such  jurisdic- 
tion upon  the  Ohio  River  as  she  is  now  entitled  to,  or  such  as  may 
be  agreed  upon  by  this  State  and  the  State  of  Kentucky."  It  seems 
clear,  from  all  legislation  and  ordinances  on  this  subject,  it  was  in- 
tended the  Mississippi  River  should  constitute  "a  common  boundary" 


Ch.  3)  TERRITORY   OF   STATES  209 

between  the  State  of  Illinois  and  any  State  or  States  that  might  be 
formed  to  the  west  and  next  to  that  river.  That  intention  is  more 
definitely  declared  than  it  was  in  regard  to  the  Ohio  River,  for  in 
fixing  the  boundary  of  Illinois,  when  the  line  down  along  the  middle 
of  the  Mississippi  River  should  reach  the  confluence  of  that  river 
with  the  Ohio,  the  boundary  should  be  from  thence  up  the  latter  river 
"along  its  northwestern  shore,"  and  yet  it  has  been  held  the  river  is 
the  boundary  between  States  divided  by  the  Ohio  River,  although  the 
original  proprietor,  in  granting  the  territory,  retained  the  river  with- 
in its  own  domain.  The  law,  as  stated  by  law  writers,  and  in  the  ad- 
judged cases,  seems  to  be,  that  w^here  a  river  is  declared  to  be  the 
boundary  between  States,  although  it  may  change  imperceptibly,  from 
natural  causes,  the  river,  "as  it  runs,  continues  to  be  the  boundary." 
^ut  if  the  river  should  suddenly  change  its  course,  or  desert  the  origi- 
nal channel,  the  rule  of  law  is,  the  boundary  remains  in  the  middle  of 
the  deserted  river  bed.  Where  a  river  is  a  boundary  between  States,  as 
is  the  Mississippi  between  Illinois  and  Missouri,  it  is  the  main— the 
permanent — -river  which  constitutes  the  boundary,  and  not  that  part 
which  flows  in  seasons  of  high  water,  and  is  dry  at  other  times,  (Hand- 
ly's  Lessee  v.  Anthony,  5  Wheat.  374,  5  L.  Ed.  113.)  In  no  other  way 
would  a  river  be  a  permanent  fixed  boundary,  at  all  tmies  readily  as- 
certainable. There  are  many  cogent  reasons  why  the  boundary  lines 
between  States  should  be  permanent,  otherwise  territory  in  one  State 
at  one  time,  sooner  or  later  might  be  in  another  State.  It  must  be  in 
one  State  all  the  time,  or  else  the  State  would  lose  jurisdiction  over  it. 
Treating,  then,  as  must  be  done,  the  Mississippi  River  as  a  common 
boundary  between  the  States  of  Illinois  and  Alissouri,  what  meaning 
is  to  be  given  to  the  term,  "middle  of  the  Mississippi  River,"  used 
in  the  enabling  act  of  Congress  and  in  the  constitution,  defining  the 
boundaries  of  the  State  of  Illinois?  Whether,  when  mere  private 
rights  are  involved,  the  phrases  the  "middle  of  the  river,"  and  the 
"middle  of  the  main  channel,"  or,  what  is  the  same  thing,  the  "thread 
of  the  stream,"  mean  the  same  thing,  and  may  be  interchangeably  used, 
there  are  many  considerations  affecting  the  public  welfare  why  it 
should  be  held  the  "middle  of  the  channel"  of  a  river  between  inde- 
pendent States  or  countries  should  be  regarded  as  the  boundary  line 
between  them,  in  the  absence  of  express  agreement  to  the  contrary. 
When  applied  to  rivers  as  boundaries  between  States,  the  phrases, 
"middle  of  the  river,"  "and  middle  of  the  main  channel,"  are  equivai.'"7/it<^j  w 
lent  expressions,  and  both  mean  the  centre  line  of  the  main  channel, —  "  "" 
or,  as  it  is  most  frequently  expressed,  the  "thread  of  the  stream." 
Should  the  expression,  "middle  of  the  river,"  be  construed  to  mean  a 
line  midway  of  the  water  surface,  that  would  give  no  permanent 
bovindary  that  could  be  ascertained.  It  would  be  at  one  point  at  one 
time,  and  distant  away  at  another.  Had  the  boundaries  of  Illinois  been 
Scott  Int. Law — 14 


210  RIGHTS  AND   DUTIES   OF  NATIONS   IN  TIME  OP  PEACE       (Part  1 

fixed  at  the  time  of  the  high  water  in  1844,  and  the  middle  of  the 
river  opposite  St.  Louis  be  held  to  be  a  line  midway  of  the  surface  of 
the  water,  that  line  would  then  have  been  far  east  of  the  present  city 
of  East  St.  Louis,  and  on  the  waters  receding,  it  would  have  shifted 
back  towards  the  west,  nearer  the  city  of  St.  Louis.  So  unsatisfac- 
toiy  a  proposition  as  that  will  not  be  adopted.  It  would  lead  to  in- 
surmountable difificulties.  Some  light  will  be  cast  upon  the  subject  of 
inquiry  by  first  ascertaining,  as  near  as  may  be,  the  meaning  of  the 
words,  "main  channel,"  "mid-channel,"  "middle  of  the  current,"  as 
those  terms  are  used  in  the  adjudged  cases  and  in  the  text-books  that 
shall  be  examined. 

The  definition  of  the  word  "channel,"  given  in  the  most  recent  edi- 
tion of  Webster's  Dictionary,  is  "the  bed  of  a  stream  of  water;  especial- 
ly the  deeper  part  of  a  river  or  bay  where  the  main  current  flows." 
The  case  of  Dunleith  &  Dubuque  Bridge  Co.  v.  County  of  Dubuque, 
55  Iowa,  558,  8  N.  W.  443,  while  this  court  does  not  approve  the  deci- 
sion of  the  case,  contains  a  very  accurate  definition  of  the  word 
"channel,"  as  commonly  used  by  river  men.  It  is  "the  word  chan- 
nel, when  employed  in  treating  subjects  connected  with  the  navigation 
of  rivers,  indicates  the  line  of  the  deep  water  which  vessels  follow," 
In  Rowe  v.  Smith,  51  Conn.  266,  50  Am.  Rep.  16,  it  is  said,  "the  expres- 
sion, 'middle  of  the  channel  of  the  bay  or  harbor,'  does  not  refer  to  the 
thread  of  deepest  water,  but  to  that  space  within  which  ships  can-  and 
usually  do  pass."  It  is  apprehended  it  is  in  this  sense  the  expressions, 
"middle  of  the  river,"  "middle  of  the  main  channel,"  "mid-channel," 
"middle  thread  of  the  channel,"  are  used  in  enabling  acts  of  Congress 
and  in  State  constitutions  establishing  State  boundaries.  It  is  the 
free  navigation  of  the  river, — when  such  river  constitutes  a  common 
boundary,  that  part  on  which  boats  can  and  do  pass,  sometimes  called 
"nature's  pathway,"  that  States  demand  shall  be  secured  to  them. 
When  a  river,  navigable  in  fact,  is  take'n  or  agreed  upon  as  the  bound- 
ary between  two  nations  or  States,  the  utility  of  the  main  channel, 
or,  what  is  the  same  thing,  the  navigable  part  of  the  river,  is  too 
great  to  admit  a  supposition  that  either  State  intended  to  surrender 
to  the  State  or  nation  occupying  the  opposite  shore,  the  whole  of  the 
principal  channel  or  highway  for  vessels,  and  thus  de.bar  its  own  ves- 
sels the  right  of  passing  to  and  fro  for  purposes  of  defence  or  com- 
merce. That  would  be  to  surrender  all,  or  at  least  the  most  valu- 
able part,  of  such  river  boundary,  for  the  purposes  of  commerce  or 
other  purposes  deemed  of  great  value,  to  independent  States  or  na- 
tions. 

Construing,  then,  the  phrases,  "middle  of  the  Mississippi  River," 
and  the  "middle  of  the  main  channel  of  the  Mississippi  River,"  to 
mean  the  same  thing,  both  acts  of  Congress  fixing  the  boundaries  of 
Illinois  and  Missouri  declare  the  middle  of  the  main  channel  of  the 

Scott  Int.Law 


Ch.  3)  TERRITORY  OF  STATES  211 

Mississippi  River  to  be  the  boundary  line  between  the  States,  and 
that  is  the  thread  of  the  main  stream. 

In  Thomas  v.  Hatch,  3  Sumn.  170,  Fed.  Cas.  No.  13,899,  Story,  J., 
said:  "I  consider  the  law  to  be  clearly  settled  that  a  boundary  on  a 
stream,  on  or  by  a  stream,  or  to  a  stream,  includes  the  flats,  at  least 
to  low-water  mark,  and  in  many  cases  to  the  middle  thread  of  the 
river," 

A  valuable  case  on  this  subject  is  Morgan  v.  Reading,  3  Smedes  & 
M.  (Miss.)  366.  The  opinion  is  by  Chief  Justice  Sharkey.  Although 
not  directly  involved,  the  discussion,  in  part,  had  relation  to  the 
boundary  lin?  of  the  State  of  Mississippi.  The  facts  as  stated  in  the 
opinion  are,  that  by  various  treaties  and  cessions  the  United  States 
had  succeeded  to  all  the  territory  east  of  a  line  drawn  along  the  mid- 
dle of  the  Mississippi,  above  the  31st  degree  of  latitude.  Louisiana 
was  then  bounded  on  the  east  by  the  same  line, — the  middle  of  the 
river  above  the  river  Iberville,  as  it  had  been  established  by  the  treaty 
of  1763.  In  1798,  while  the  middle  of  the  river  was  still  the  boundary 
line  between  the  province  of  Louisiana  and  the  United  States,  Congress 
established  the  Mississippi  territor)%  bounding  it  on  the  west  by  the 
Mississippi.  It  was  in  reference  to  that  line  the  court  said,  "we  have 
said  that  Congress  omitted  to  mention  the  middle  of  the  river,  but 
bounded  the  territory  by  the  Mississippi."  The  common  law,  by  con- 
struction, extends  grants  bounded  "by"  or  "on"  or  "along"  a  fresh 
water  stream,  to  the  thread  of  the  stream.  The  Mississippi  territory, 
by  this  rule,  extended  to  the  middle  of  the  river. 

In  Handly's  Lessee  v.  Anthony,  supra,  it  was  said  by  the  court: 
"Where  a  great  river  is  the  boundary  between  two  nations  or  States, 
if  the  original  property  is  in  neither,  and  there  be  no  convention  re- 
specting it,  each  holds  to  the  middle  of  the  stream." 

Mr.  Field,  in  his  work  entitled  "Outlines  of  an  International  Code," 
(2d  ed.)  section  30,  in  speaking  of  boundary  by  stream  or  channel, 
says :  "The  limits  of  national  territory  bounded  by  a  river  or  stream, 
or  by  a  strait  or  sound,  or  arm  of  the  sea,  the  other  shore  of  which  is 
the  territory  of  another  nation,  extend  outward  to  a  point  equidis- 
tant from  the  territory  of  the  nation  occupying  the  opposite  shore,  or, 
if  there  be  a  stream  or  a  navigable  channel,  to  the  thread  of  the 
stream, — that  is,  to  the  mid-channel, — or,  if  there  be  several  chan- 
nels, to  the  middle  of  the  principal  one." 

In  his  work  on  the  "Law  of  Nations,"  p.  31,  Mr.  Poison  says:  "If 
the  river  divides  two  States,  the  mid-channel  is  considered  as  the 
boundary  line,  unless  prior  occupation  has  given  to  the  one  or  tlie 
other  the  right  of  possession  to  the  whole." 

There  are  cases  in  this  and  other  courts,  although  the  discussion 
had  reference  directly  to  riparian  rights,  and  not  to  boundaries  be- 
tween States,  that  illustrate  this  same  doctrine.  In  Fletcher  v.  Thunder 
Bay  Boom  Co.,  51  Mich.  277,  16  N.  W.  645,  it  was  held,  the  riparian 


212  RIGHTS  AND   DUTIES   OF  NATIONS   IN  TIME  OF  PEACE       (Part  1 

rights  of  defendant  in  the  case  being  considered,  extended  to  the  thread 
of  the  stream — to  the  center  of  the  main  channel  of  the  river.  It  was 
said  by  this  court  in  Middleton  v.  Pritchard,  3  Scam.  510,  38  Am.  Dec. 
112,  "that  all  grants  bounded  upon  a  river  not  navigable  by  the  common 
law,  entitled  the  grantee  to  all  islands  lying  between  the  mainland  and 
the  center  thread  of  the  current."  In  Cobb  v.  Lavalle,  89  111.  331,  31 
Am.  Rep.  91,  it  was  said:  "It  seems  to  be  the  settled  law  of  this 
country,  that  the  owner  of  land  bordering  upon  a  river  not  navigable 
at  common  law,  such  as  the  Mississippi  River,  will  be  entitled  to  claim 
to  the  center  of  the  current  of  the  stream."  The  same  doctrine  was  re- 
stated in  Piper  v.  Connelly,  108  111.  646,  where  it  is  said:  "The 
general  doctrine  that  grants  of  land  bounded  upon  rivers,  or  the  mar- 
gins above  tide  water,  carry  the  exclusive  right  and  title  of  the  grantee 
to  the  center  thread  of  the  current,  unless  the  terms  of  the  grant  clear- 
ly denote  the  intention  to  stop  at  the  margin  of  the  river,  has  been  too 
long  established  and  too  firmly  adhered  to  by  this  court  to  be  now 
questioned." 

No  reason  is  perceived  why  the  principles  here  stated  should  not 
control  the  decision  of  the  case  being  considered.  As  before  re- 
marked, it  is  manifest  it  was  the  intention  of  Congress  the  Mississippi 
River  should  constitute  a  "common  boundary"  between  the  States  of 
Illinois  and  Missouri,  and  had  the  words  the  "middle  of  the  Mississippi 
River,"  and  the  "middle  of  the  main  channel,"  been  omitted  in  both 
enabling  acts  of  Congress,  still  the  river  itself  would  be  the  boundary, 
and  each  State  would  hold  to  the  "middle  of  the  stream," — that  is  to 
say,  the  middle  thread  of  the  stream.  The  intention  in  this  respect 
is  made  most  manifest  by  the  fact  it  must  have  been  and  was  known  to 
Congress  when  it  passed  the  enabling  act  for  Missouri,  and  fixed  the 
boundary  at  the  "middle  of  the  main  channel  of  the  Mississippi  River," 
that  the  western  boundary  of  Illinois  had  been  fixed  "at  the  middle  of 
the  Mississippi  River,"  and  certainly  it  was  not  intended  to  fix  two  dis- 
tinct or  different  boundary  lines.  That  would  have  left  a  space  not  in 
either  State,  and  no  such  absurd  intention  should  be  imputed  to  Con- 
gress. It  was  most  appropriately  said  by  the  court  in  Morgan  v.  Read- 
ing, supra,  in  respect  to  the  boundary  line  as  fixed  by  the  act  of  Con- 
gress organizing  the  territory  of  Mississippi,  which  established  the 
"Mississippi  River"  as  the  western  boundary:  "All  west  of  that  line," 
— that  is,  the  middle  of  the  river — "was  owned  by  a  foreign  power,  and 
we  cannot  suppose  Congress,  under  the  circumstances,  designed  to  limit 
the  jurisdiction  of  the  territory  by  the  bank  of  the  river." 

The  suggestion,  Congress,  by  its  enabling  acts,  may  have  estab- 
lished one  line  in  the  Mississippi  River  for  the  eastern  boundary  for 
Missouri,  and  another  line,  farther  east,  for  the  western  boundary  of 
Illinois,  has  nothing,  in  law  or  in  fact,  upon  which  to  rest.  The 
whole  legislation  on  this  subject  shows,  as  before  remarked,  it  was 
the  intention  of  Congress  to  make  the  river  a  "common  boundary" 


Ch.  3)  TERRITORY  OF   STATES  213 

between  these  States,  and  the  expressions  used  in  both  enabling  acts, 
although  the"  words  used  may  not  be  the  same,  make  the  middle,  of 
the  main  channel  of  the  permanent  river  the  boundary  line.  In  such 
cases  the  principle  is  as  stated  by  Mr.  Woolsey,  in  his  work  on  In- 
ternational Law,  §  58 :  "Where  a  navigable  river  forms  the  boundary 
between  States,  both  are  presumed  to  have  free  use  of  it,  and  the  divid- 
ing line  will  run  in  the  middle  of  the  channel,  unless  the  contrary  is 
shown  by  long  occupancy  or  agreement  of  parties."  Commercial  con- 
siderations make  it  imperative,  where  States  or  nations  are  divided  by 
a  navigable  river,  each  should  hold  to  the  center  thread  of  the  main 
channel  or  current  along  which  vessels  in  the  carrying  trade  pass. 
That  is  the  "channel  of  commerce," — not  the  shallow  water  of  the 
stream,  which,  at  some  seasons  of  the  year,  may  be  impossible  of  navi- 
gation,— upon  which  each  nation  or  State  demands  the  right  to  move 
its  products  without  any  interference  from  the  State  or  nation  occupy- 
ing the  opposite  shore.  So  important  has  this  right  ever  been  deemed, 
it  is  thought  to  be  embraced  in  all  treaties,  cessions,  ordinances,  statutes 
and  constitutions  made,  enacted  or  adopted  in  regard  to  the  Mississippi 
River  since  the  Federal  Government  was  organized.  It  was  the  great 
desire  to  secure  this  important  privilege  that  gave  rise  to  all  the  efforts 
on  the  part  of  the  general  Government  to  obtain  the  control  of  the 
Mississippi  River  from  its  source  to  that  point  where  it  empties  into 
the  gulf  and  connects  with  the  sea. 

It  has  been  often  ruled,  the  intention  in  such  great  matters  as  State 
boundaries,  when  clearly  manifested  by  cessions,  grants  or  legislative 
acts,  should  control.  It  is  a  fact  so  well  known  it  is  not  called  in 
question,  that  so  far  back  as  can  be  known,  either  from  history  or 
tradition,  the  main  channel  of  the  Mississippi  River  at  the  point  where 
complainant's  bridge  is  constructed,  was  always  west  of  Bloody;_lsi 
land, — that  is,  between  that  island  and  the  Missouri  shore.  Both  States 
have  always  recognized  this  fact,  and  for  that  reason  "Bloody  Is- 
land," although  the  river  east  of  it  was,  in  fact,  at  one  time,  navi- 
gable for  shallow-draft  vessels, — certainly  in  seasons  of  high  water, 
— was  always  regarded  as  being  within  the  limits  of  the  State  of 
Illinois.  At  one  time  grave  "apprehensions  were  entertained  that  the 
main  channel  of  the  river  might  change  to  the  east  side  of  "Bloody 
Island,"  and  thus  leave  the  Missouri  side;  but  by  the  consent  of  Illi- 
nois, expressed  by  the  General  Assembly,  dykes  and  other  structures 
were  erected  at  the  upper  end  of  the  island  to  keep  the  main  channel 
on  the  Missouri  side,  where  it  had  previously  been.  Those  structures 
proved  efficient,  and  the  main  channel  of  the  river  now  flows  where  it 
did  since  before  the  boundaries  of  either  State  divided  by  it  were  es- 
tablished by  Congress  or  declared  by  State  constitutions.  It  is  not 
claimed,  either  by  the  bill  or  in  the  evidence,  that  any  part  of  com- 
plainant's bridge  that  was  assessed  by  the  local  assessor  lies  west  of 
the  middle  of  what  has  always  been  the  main  channel  of  the  river 


214  RIGHTS  AND   DUTIES   OF   NATIONS   IN  TIME   OP   PEACE       (Part  1 

since  the  States  were  org-anized  under  the  acts  of  Congress,  and  this 
court  has  no  hesitation  in  coming  to  the  conckision  that  all  of  that  part 
of  the  bridge,  with  its  approaches,  that  lies  east  of  the  middle  line  of  the 
main  channel  of  the  river,  is  within  the  jurisdiction  of  the  State  of 
Illinois,  for  the  purposes  of  State  and  local  taxation.  Only  that  part 
of  the  bridge  east  of  the  middle  of  the  main  channel  of  the  river,  as 
appears  from  the  plat  used  in  making  the  assessment,  was  assessed 
in  this  case,  and  that  was  warranted  by  law. 

The  case  of  Missouri  v.  Kentucky,  11  Wall.  395,  20  L.  Ed.  116, 
cited  by  counsel  for  complainant  as  being  conclusive  of  the  case  in 
hand,  has  been  examined,  and  it  is  not  perceived  it  contains  anything  in 
conflict  with  the  general  views  here  expressed.  Indeed,  some  of  the 
reasoning  in  that  case  has  been  adopted  in  this  opinion. 

The  judgment  of  the  circuit  court  will  be  reversed,  and  the  cause 
will  be  remanded,  with  directions  to  that  court  to  dismiss  the  bill. 

Judgment  reversed.-" 


COOLEY  V.  GOLDEN  et  al. 
(Kansas  City  Court  of  Appeals,  Missouri,  1S93.    52  Mo.  App.  229.) 

Smith,  P.  J.  This  is  an  action  of  forcible  entix  and  detainer  which 
was  brought  before  a  justice  of  the  peace  of  Atchison  county. 

By  the  act  of  Congress,  approved  June  7,  1836,  5  United  States  Stat- 
utes at  Large,  34,  entitled  "An  act  to  extend  the  western  boundary 
of  the  State  of  Missouri  to  the  Missouri  river,"  it  was  provided  that, 
when  the  Indian  title  to  all  the  lands  lying  between  the  state  of  Mis- 
souri and  the  Missouri  river  should  be  extinguished,  the  jurisdiction 
over  said  lands  should  be  thereby  ceded  to  the  state  of  Missouri.  It 
is  to  be  observed  that  the  act  ceded  the  land  between  the  old  state 
line  and  the  river,  and  the  extension  of  the  boundary  was  to  the  river, 
not  to  the  bank,  thus  making  the  natural  water-course  the  boundary; 
and  the  general  rules,  construing  such  words  of  cession  as  shown  by 

2  0  See,  also,  the  Wasserbillig  Case,  9  Decisions  of  the  Reichsgericht  in  Crimi- 
nal Cases,  370  (1884),  regarding  a  crime  committed  on  a  bridge  forming  the 
boundary  between  Luxemburg  and  Prussia. 

Sir  William  Scott  states  the  law  tersely  in  The  Twee  Gebroeders,  3  C. 
Rob.  336,  339  (1801) :  "The  law  of  rivers  flowing  entirely  through  the  provinces 
of  one  state  is  perfectly  clear.  In  the  sea,  out  of  the  reach  of  cannon-shot,  uni- 
versal use  is  presumed.  In  rivers  flowing  through  coterminous  states,  a  com- 
mon use  to  the  different  states  is  presumed.  Yet  in  both  of  these  there  may, 
by  legal  possibility,  exist  a  peculiar  property,  excluding  the  universal  or  the 
common  use.  Portions  of  the  sea  are  prescribed  for ;  so  are  rivers  flowing 
through  contiguous  states;  the  banks  on  one  side  may  have  been  first  set- 
tled, by  which  the  possession  and  property  may  have  been  acquired,  or  ces- 
sions may  have  taken  place  upon  conquests,  or  other  events.  But  the  general 
presumption  certainly  bears  strongly  against  such  exclusive  rights,  and  the 
title  is  a  matter  to  be  established,  on  the  part  of  those  claiming  under  it,  in 
the  same  manner  ;is  till  other  legal  demands  are  to  be  substantiated,  by  clear 
and  competent  evidence." 


Ch.  3)  TERRITORY  OF   STATES  215 

the  adjudged  cases,  carry  that  boundary  to  the  center  of  the  channel. 
Benson  v.  Morrow,  61  Mo.  345;  Jones  v.  Soulard,  24  How.  41,  16  L. 
Ed.  604;  Howard  v.  Ingersoll,  13  How.  381,  14  L.  Ed.  189;  Railroad 
V.  Devereux  (C.  C.)  41  Fed.  14;  Missouri  v.  Iowa,  7  How.  660,  12 
L.  Ed.  861.  And  this  seems  to  have  been  the  intention  of  Congress; 
for  it  will  be  seen  by  reference  to  the  act  providing  for  the  admission 
of  the  territory  of  Nebraska  into  the  Union  that  one  of  the  bound- 
aries of  the  state  so  admitted  should  be  from  the  junction  of  the 
Niobrara  river  down  the  middle  of  the  channel  of  the  latter  river 
following  the  meanderings  thereof,  etc.  13  United  States  Statutes 
at  Large,  47.  It  would  be  unreasonable  to  suppose  that  Congress  in- 
tended to  limit  the  extension  of  the  territorial  jurisdiction  of  the 
state  of  Missouri  to  the  bank  of  the  Missouri,  and  thus  leave  a  sort 
of  neutral  territory  between  the  Missouri  shore  and  the  middle  of  the 
channel  of  the  river  over  which  neither  the  state  of  Missouri  nor 
Nebraska  had  jurisdiction. 

The  Constitution  of  Missouri,  section  1,  article  1,  declared  that  the 
boundaries  of  the  state  as  heretofore  estabhshed  by  law  are  hereby_ 
ratified  and  confirmed ;  so  that  it  is  not  to  be  doubted  that  Congress  by 
the  ceding  act  extended  the  northern  boundary  line  of  the  state  to  the 
middle  of  the  channel  of  the  Missouri  river,  and  from  thence  down 
the  river  to  the  middle  of  the  Kansas  river.  Act  of  Congress  of  March 
6,  1820,  for  the  admission  of  Missouri;  Revised  Statutes,  1889,  47. 
In  the  cession  act  of  June  7,  1836,  is  embraced  what  is  commonly 
known  as  the  "Platte  purchase,"  consisting  of  a  number  of  counties, 
among  which  is  Atchison,  situate  in  the  northwest  corner  of  the  state. 

At  the  time  qf^thecession  and  until  the  year  1867,  the  Missouri 
river  in  its  course  along  the  western  boundary  of  Atchison  county 
made  a  horseshoe-shaped  bend,  with  toe  to  the  east,  and  heel  pointing 
to  the  west.  During  the  spring  of  the  last-named  year  the  river,  dur- 
ing a  great  flood,  changed  its  course  by  effecting  a  channel  across  the 
heel  of  the  bend,  and  thus  abandoned  its  former  channel  around  the 
bend.  The  bend  became  a  lake  and  gradually  filled  up  with  sedimen- 
tary matter  until  it  became  solid  land,  fit  for  tillage  and  pasture.  The 
land,  the  possession  of  which  is  in  dispute  in  this  suit,  is  situate  in 
the  old  abandoned  bed  of  the  river  in  this  bend.  The  decisive  ques- 
tions in  the  case  arise  on  the  instructions  given  and  refused  by  the 
court. 

The  theory  of  the  plaintiff's  instructions  which  were  refused  by  the 
court  was  to  the  effect  that  if  the  lands  in  dispute  were  situate  in  the 
old  bed  of  the  river  which  had  become  dry  on  account  of  the  change 
of  its  course  by  cutting  off  a  bend  on  the  Nebraska  side  and  forming 
a  new  channel,  then  in  that  case  it  was  not  material  on  which  side  of 
the  main  channel  of  the  old  river  bed  the  lands  in  dispute  were  sit- 
uate. The  theory  of  the  defendant  which  was  adopted  by  the  court 
was  that  the  ordinary  boundary  of  Atchison  county  where  it  borders 
on  the  Missouri  river  extended  to  the  middle  of  the  main  channel  oi 


s. 


216  RIGHTS  AND   DUTIES  OF  NATIONS   IN  TIME  OF  PEACE       (Part  1 

the  river  as  the  main  channel  ran  or  was  located  in  the  year  1867  prior 
to  the  change  or  cut-off,  and  that,  unless  it  was  found  the  land  in 
question  was  situate  in  Atchison  county,  the  plaintiff  could  not  re- 
cover. The  defendant's  theory  further  w^as  that  the  boundary  line 
of  the  state  of  Missouri  at  the  location  in  question  was  the  middle  of 
the  main  channel  of  the  Missouri  river  as  the  main  channel  ran  before 
the  cut-off  in  1867.  These  theories  are  wholly  irreconcilable.  The 
jury  found  under  the  instructions  that  the  land  in  dispute  was  ngtjn" 
Atchison  county,  and,  as  there  was  substantial  testimony  tending  to 
establish  that  fact,  the  finding  is  conclusive  upon  us.  It  seems  that 
the  river  by  its  changed  course  cut  off  a  considerable  area  of  land 
which  was  formerly  on  the  Nebraska  side,  but  is  now  on  the  Missouri 
side  of  it,  so  that  the  river  as  it  runs  along  the  western  border  of  this 
area  of  cut-off  land  is  wholly  within  the  state  of  Nebraska. 

It  is  not  contended,  as  we  understand  it,  that  the  change  of  the 
course  of  the  river  in  1867  effected  a  change  of  the  T>oundary  line  be- 
tween the  two  states  as  it  was  fixed  in  the  ceding  act,  for,  if  it  were, 
such  contention  could  not  be  sustained,  because  it  is  plain  to  be  seen 
that  the  allowance  of  such  consequences  might  result  most  disastrously 
to  the  geography  of  the  state.  The  law  seems  to  be  well  settled  that 
when  a  river  is  declared  to  be  the  boundary  between  states,  although 
it  may  change  imperceptibly  from  natural  causes,  the  river  as  it  runs 
continues  to  be  the  boundary.  But,  if  the  river  should  suddenly 
change  its  course  or  desert  the  original  channel,  the  rule  of  law  is,  the 
boundary  remains  in  the  middle  of  the  deserted  river  bed.  Nebraska 
vTlowa,  143  U.  S.  359,  12  Sup.  Ct  396,  36  L.  Ed.  186;  St.  Louis  v. 
Rutz,  138  U.  S.  226,  11  Sup.  Ct.  337,  34  L.  Ed.  941;  Missouri  v. 
Kentucky,  11  Wall.  395,  20  L.  Ed.  116;  Buttenuth  v.  Bridge  Co.,  123 
111.  535,  17  N.  E.  439,  5  Am.  St.  Rep.  545;  Holbrook  v.  Moore,  4 
Neb.  437 ;  Collins  v.  State,  3  Tex.  App.  324,  30  Am.  Rep.  142 ;  Gould 
on  Waters,  §  159. 

But  the  real  question  is  whether  the  states  of  Missouri  and  Nebraska 
fc/  have  concurrent  jurisdiction  over  the  old  bed  of  the  river  just  as  was 
^/  the  case  when  the  river  ran  there  before  1867.  The  jurisdiction  of 
this  state  over  that  part  of  the  river  which  forms  a  common  boundary 
of  the  states  is  concurrent.  It  extends  not  only  to  the  middle  of  the 
channel  but  over  the  entire  channel.  Constitution,  art.  1,  §  1 ;  Swear- 
ingen  v.  Steamboat,  13  Mo.  519;  Sanders  v.  Anchor  Line,  97  Mo.  26,. 
10  S.  W.  595,  3  L.  R.  A.  390.  But  here  there  is  no  river,  but  in  its 
stead  is  dry  land  upon  which  are  cultivated  fields  and  pastures.  The 
physical  conditions  have  been  changed.  Is  the  cas^((^fferent  than  if 
the  boundary  line  between  the  two  states  had  been  located  originally 
on  dry  land  instead  of  in  the  middle  of  the  channel  of  the  river  ?  We 
think  not.  The  concurrent  jurisdiction  of  the  states  of  Missouri  and 
Nebraska  under  their  enabling  acts  does  not  in  any  case  extend  be- 
yond their  common  boundary,  except  when  that  boundary  is  the  mid- 
dle of  the  channel  of  the  Missouri  river.  ■   Congress  has  imposed  this 


Ch.  3)  TERRITORY   OF   STATES  217 

limitation  upon  its  existence.  It  is  difficult  to  see  why  it  exists  here 
any  more  than  if  the  river  had  always  run  where  it  did  after  1867. 
The  reason  for  the  grant  of  this  concurrent  jurisdiction,  which  is  so 
well  and  forcibly  expressed  by  Judge  Barclay  in  97  Mo.,  supra,  lends 
no  support  to  plaintiff's  claim  of  concurrent  jurisdiction  in  this  case. 
The  conditions  are  wanting  which  constitute  the  basis  of  this  juris- 
diction. The  boundary  line  between  the  states  is  the  middle  of  the 
former  bed  of  the  river,  and  to  this  line  the  jurisdiction  of  each  ex- 
"tendfs,  but  the  concurrent  jurisdiction  along  there  disappeared  when 
the  river  did. 

It  is  not  believed  that  it  was  contemplated  by  Congress  or  the  state'^ 
that  the  grant  of  concurrent  jurisdiction  of  the  two  states  on  the  river 
authorized  the  bringing  of  an  action  of  forcible  entry  and  detainer  or 
of  ejectment  in  this  state  for  the  recovery  of  lands  situate  anywhere 
within  the  territorial  limits  of  Nebraska.  We  cannot  sustain  the 
theory  of  the  plaintiff's  instructions  which  were  to  that  effect.  We 
do  not  think  that  the  elimination  by  the  court  of  a  part  of  the  plain- 
tiff's fourth  instruction  was  harmful  to  him,  in  view  of  the  issues 
submitted  to  the  jury  by  other  instructions  and  found  adversely  to 
the  plaintiff. 

The  case  was  fairly  submitted  to  the  jury  by  the  instructions  of  the 
court.  The  judgment  seems  to  be  for  the  right  party  and  so  will  be 
affirmed.    All  concur.'** 


II.  Sounds,  Straits,  and  Lakes 

MAHLER  V.  NORWICH  &  N.  Y.  TRANSP.  CO. 
(Court  of  Appeals  of  New  York,  1866.    35  N.  Y.  352.) 

Appeal  from  the  Supreme  Court.  The  action  was  for  damages 
caused  by  the  negligence  of  the  defendant,  and  resulting  in  the  death 
of  the  intestate. 

On  the  trial  at  the  Kings  Circuit,  it  appeared  that  the  deceased 
was  on  board  of  a  sloop  on  Long  Island  Sound,  on  the  2Sth  of  Octo- 
ber, 1853 ;  that  within  a  short  distance  of  Sands'  Point  the  sloop  was 
sunk  by  a  collision  with  a  steamer  of  the  defendant,  caused  by  the 

21  Elaborate  cases  dealing  with  rivers  as  boundaries  are  Missouri  v.  Kon- 
tucky,  11  Wall.  395,  20  L.  Ed.  116  (1870).  Nebraska  v.  Iowa,  143  U.  S.  35'.}, 
12  Sup.  Ct.  396,  36  L.  Ed.  186  (1892),  and  Iowa  v.  Illinois,  147  U.  S.  1,  13 
Sup.  Ct.  239,  37  L.  Ed.  55  (1893). 

The  question  of  the  prolongation  of  the  river  boundary  beyond  the  land  is 
dealt  with  in  Louisiana  v.  Mississippi,  202  U.  S.  1,  26  Sup.  Ct.  408,  571,  50 
L.  Ed.  913  (1906).  See,  also,  In  the  Matter  of  the  luteruatiunal  Title  to  the 
Chamizal  Tract,  5  American  Journal  of  International  Law,  785  (1911),  in 
which  a  dispute  regarding  the  Rio  Grande  as  the  boundary  between  the  Unit- 
ed States  and  Mexico,  was  submitted  to  an  International  Boundary  Commis- 
sion. 


218  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

negligence  of  those  in  charge  of  the  steamer,  and  that  the  intestate 
was  drowned. 

The  complaint  was  dismissed ;  the  court  holding,  as  matter  of  law, 
that  the  place  at  which  the  collision  occurred  was  not  within  the 
jurisdiction  of  the  state  of  New  York.  The  judgment  was  affirmed 
at  the  General  Term  in  the  second  judicial  district,  and  the  plaintifif 
appealed  to  this  court.    The  case  is  reported  in  45  Barbour,  232. 

Porter,  J.^^  The  collision  which  resulted  in  the  death  of  the  in- 
testate occurred  about  two. miles  east..pf...Sands'  Pojnt,  and  within  a. 
mile  of  the  Long  Island  shore.  If  the  court  below  was  right  in  hold- 
ing that  this  portion  of  the  sound  is  not  within  the  limits  of  our  juris- 
diction, the  complaint  was  properly  dismissed,  as  the  right  of  action 
rests  upon  a  statute  which  has  no  extraterritorial  force. 

The  islands  in  the  sound,  as  well  as  those  between  it  and  the  At- 
lantic, are  confessedly  within  our  limits.  Fisher's  Island,  which  is 
situate  at  its  eastern  extremity,  is  about  two  miles  from  the  Connecti- 
cut shore.  The  opening,  known  as  "The  Race,"  between  Little  Gull 
Island  and  Fisher's  Island,  is  the  ship  inlet  to  the  sound  from  the 
ocean.  Blunt's  Coast  Pilot  (16th  Ed.)  196.  Both  these  islands  are 
in  the  state  of  New  York.  The  distance  between  them  is  about  four 
miles,  which  is  also  the  width  of  the  sound  at  the  point  where  the 
collision  occurred. 

The  question  whether  the  injury  to  the  intestate  was  committed 
within  our  jurisdiction,  depends  on  the  course  of  the  New  York 
boundary  line  from  Fisher's  Island  to  Lyon's  Point.  The  court  below 
held  that  this  line  must  be  so  run  as  to  exclude  the  waters  of  the 
sound  below  low-water  mark,  The  statute  defining  the  boundarieis 
of  the  state  does  not  indicate  the  course  of  the  line  from  Sandy  Hook 
to  Lyon's  Point,  otherwise  than  by  declaring  that  it  is  to  be  run  "in 
such  manner  as  to  include  Staten  Island  and  the  islands  of  meadow 
on  the  west  side  thereof.  Shooter's  Island,  Long  Island,  the  Isle  of 
Wight  (now  called  Gardiner's  Island),  Fisher's  Island,  Shelter  Island, 
Plumb  Island,  Robin's  Island,  Ram  Island,  the  Gull  Islands,  and,  all 
the  islands  and  waters  in  the  Bay  of  New  York  and  within  the  bounds 
above  described."    1  R.  S.  65.  ' 

It  seems  quite  obvious  that  a  direction,  so  to  run  the  line  as  to  in- 
clude the  islands  within  the  bounds  of  the  state,  is  not  a  direction  so 
to  run  it  as  to  exclude  the  intermediate  waters.  If  New  York  was  of 
right  entitled  to  those  waters,  a  renunciation  of  her  title  must  be 
sought  elsewhere  than  in  her  assertion  of  right  up  to  a  line  embracing 
the  islands  beyond  them. 

The  description  purports  to  define  the  exterior  lines  of  a  continuous 
territorial  domain;  and  not  to  declare  the  respective  boundaries  of 
detached  and  separate  tracts,  divided  from  each  other  by  the  ocean, 
and  connected  only  by  the  bonds  of  political  union.     Every  intend- 

2  2  Part  of  the  opinion  is  omitted. 


Ch.  3)  TERRITORY  OF   STATES  219 

ment,  therefore,  is  in  favor  of  the  natural  and  obvious  construction, 
that  the  Hnes  indicated  constitute  a  continuous  boundary,  at  no  point 
diverging "  from  our  possessions,  to  traverse  either  lands  or  waters 
which  we  do  not  own. 

It  is  never  to  be  assumed,  except  upon  the  clearest  evidence,  that 
a  sovereign  state  intends,  by  its  own  legislation,  to  renounce  a  right 
of  territorial  domain,  to  which  its  title  is  clear  and  absolute.  Such  a 
relinquishment,  in  respect  to  one  of  the  two  great  maritime  avenues 
from  New  York  City  to  the  ocean,  would  be  an  abdication  of  rights, 
which  we  continue  to  assert  in  respect  to  the  other,  up  to  an  ocean 
line  stretching  much  farther  from  headland  to  headland,  and  which 
might  well  be  open  to  question,  if  the  doctrine  could  be  admitted,  on 
the  basis  of  which  it  is  claimed  that  we  have  renounced  all  dominion 
over  the  waters  of  Long  Island  Sound. 

It  would  be  an  abandonment,  by  a  maritime  power,  of  jurisdiction 
over  an  inland  body  of  water,  inclosed  within  the  state  at  each  of  its 
termini,  and  with  no  outlet  to*  the  ocean  except  under  the  command  of 
our  cannon  from  either  shore.  If  such  a  surrender  resulted,  from 
the  adoption  of  the  Revised  Statutes,  it  had  not  even  the  merit  of  a 
voluntarv^  cession  to  a  sister  state,  or  to  the  federal  government,  of 
the  dominion  we  disclaim ;  but  it  amounted  to  a  mere  abandonment 
of  a  large  portion  of  our  internal  domain  to  the  indeterminate  law 
of  the  ocean,  without  regard  to  the  necessity  of  police  regulation  upon 
its  waters,  or  the  importance  of  maintaining  our  jurisdiction,  with  a 
view  to  the  protection  of  our  commercial  interests  in  peace,  and  to 
preparation,  if  occasion  should  arise,  to  repel  aggression  in  case  of 
civil  or  of  foreign  war. 

As  the  injury  in  question  occurred  between  our  own  shores,  and 
west  of  the  Connecticut  boundary,  it  would  be  inappropriate  in  this 
case  to  determine  the  further  question,  whether  the  line  should  be 
run  directly  from  Fisher's  Island  to  Lyon's  Point,  as  held  by  one  of 
the  former  judges  of  this  court,  or  whether  it  should  follow  the 
thread  of  the  sound,  with  such  deflections  as  may  be  required  to  in- 
clude the  islands  confessedly  within  our  jurisdiction. 

That^Long  Island  Sound  was  included  within  the  territorial  do- 
minions of  the  British  Empire,  at  the  date  of  the  charter  from  Charles 
the  Second  to  the  Duke  of  York,  is  a  proposition  too  plain  for  argu- 
ment.  It  was  an  inland  arm  of  the  sea,  washing  no  shores  but  those 
of  the  provinces,  and  with  no  opening  to  the  ocean,  except  by  passing 
between  British  headlands  less  than  five  miles  apart.  The  right  of 
the  king  depended  on  none  of  the  vexed  questions  involved  in  the 
claims  of  dominion,  by  the  English  over  the  waters  of  the  Channel,  by 
the  Turks  over  those  of  the  Black  Sea,  by  the  Venetians  over  those  of 
the  Adriatic,  or  the  Romans  over  those  of  the  Mediterranean.  It  rest- 
ed on  clear  and  fundamental  principles  of  international  law.  The 
rule  is  one  of  universal_recognition  that  a  bay,  strait,  sound  or  arm 
j)itliesea,  lying  wholly  within  the  domain  of  a  sovereign,  and  ad- 


220  RIGHTS  AND   DUTIES  OF   NATIONS   IN  TIME  OF  PEACE       (Part  1 

mitting  no  ingress  from  the  ocean,  except  by  a  channel  between 
contiguous  headlands  which  he  can  command  with  his  cannon^on 
eltlier  side,  is  the  subject  of  territorial  dominion.  Wheaton's  In- 
ternational Law,  320;  Vattel's  Law  of  Nations,  130;  Hautefeuille, 
Droits  des  Nations  (2d  Ed.)  89 ;  Church  y.  Hubbart,  2  Cranch,  187, 
2  L.  Ed.  249.  It  is  an  immemorial  rule  of  the  common  law,  and  has 
been  asserted  by  the  kings  and  courts  of  England  from  the  earliest 
period  of  our  ancestral  history.  Halleck's  International  Law,  134, 
and  the  authorities  there  cited.  Within  this  itile,  the  islands  at  the 
eastern  extremity  of  Long  Island  Sound  are  the  fauces  terrse,  which 
define  the  limits  of  territorial  authority,  and  mark  the  line  of  sepa- 
ration between  the  open  ocean  and  the  inland  sea.  United  States  v. 
Crush,  5  Mason,  290,  Fed.  Cas.  No.  15,268;  Marten's  Law  of  Nations, 
171;   Wheaton's  Law  of  Nations,  322;  Vattel,  130. 

The  right  of  the  king  to  the  waters  of  these  inland  seas  and  bays, 
and  his  authority  to  grant  or  withhold  them  in  his  royal  charters, 
was  settled  by  the  Supreme  Court  of  the  United  States  in  the  case 
of  Martin  v.  Waddell,  16  Pet.  367,  10  L.  Ed.  997.  The  question, 
whether  the  waters  of  the  sound  were  embraced  in  the  royal  grant 
to  the  Duke  of  York,  is  one  which  we  are  not  called  upon  to  deter- 
mine. If  they  were,  they  passed  under  the  subsequent  grants  to  the 
states  of  New  York  and  Connecticut.  If  they  were  not,  they  remained 
in  the  king  until  his  rights  were  divested  by  the  Revolution.  The 
states  contiguous  to  these,  as  to  our  other  inland  seas  and  bays,  then 
succeeded  to  his  dominion  over  their  waters,  and  their  property  in 
them  became  absolute,  subject  to  the  public  right  of  navigation.  Mar- 
tin V.  Waddell,  16  Pet.  367,  410,  10  L.  Ed.  997 ;  Corfield  v.  Coryell,  4 
Wash.  C.  C.  371,  385,  386,  Fed.  Cas.  No.  3,230. 

In  the  absence  of  any  prior  grant  of  the  whole  or  any  portion  of 
these  waters,  each  of  the  contiguous  states  succeeded  to  territorial 
dominion  from  its  own  shore  to  the  middle  of  the  sound,  so  f^r_as 
their  possession  was  coterminous ;  the  property  of  New  York  in  the 
residue  extending  from  shore  to  shore.  Such  is  the  settled  rule 
applicable  to  neighboring  states  bounded  by  a  territorial  inland  sea. 
Corfield  v.  Coryell,  4  Wash.  C.  C.  386,  Fed.  Cas.  No.  3,230;  Wheaton's 
International  Law,  320;  Angell  on  Tide  Waters,  7;  1  Azuni's  Mari- 
time Law,  225.  When  the  states  succeeded  to  these  rights  of  the  king, 
as  Judge  Story  observed,  in  a  kindred  case,  where  a  bay  was  the 
boundary,  "the  law  of  nations  must,  under  such  circumstances,  be 
presumed  silently  to  prevail,  and  annex  the  bay,  to  the  middle  of  the 
stream,  to  the  territories  of  the  adjacent  provinces;  and  as  there  was 
at  all  times  a  common  right  of  passage  and  navigation,  and  it  was 
necessar}'  for  the  convenience  of  all  parties,  the  whole  waters  must 
be  deemed  common  for  these  purposes."  The  Schooner  Fame,  3 
Mason,  147,  151,  Fed.  Cas.  No.  4,634. 

The  state  of  New  York  has  not  relinquished  to  the  federal  govern- 
ment its  territorial  rights  or  its  general  jurisdiction  over  the  waters 


Ch.  3)  TERRITORY  OF  STATES  221 

of  Long  Island  Sound.  The  Supreme  Court  of  the  United  States  has 
adjudged  that  the  cession  by  the  states  to  the  federal  authorities  of 
^idmiralty  and  maritime  jurisdiction  over  our  inland  seas  and  bays 
was  not  a  cession  of  the  waters,  or  of  general  jurisdiction  over  them, 
and  that  the  states  retain  unimpaired  the  residuary  powers  of  legis- 
lation and  their  rights  of  territorial  dominion.  United  States  v.  Bev- 
ans.  3  Wheat.  336,  4  L.  Ed.  404. 

We  entertain  no  doubt,  therefore,  that,  to  the  extent  we  have  in- 
dicated, the  waters  of  Long  Island  Sound  are  within  the  jurisdiction 
of  this  state.     *     *     * 

On  the  general  question  of  the  dominion  of  the  state  over  the  waters 
of  Long  Island  Sound,  we  are  fortified  in  our  conclusion  by  the  fact 
that  such  jurisdiction  has  been  constantly  asserted  by  the  political  de- 
partment of  the  government  to  which  subjects  of  this  nature  appro- 
priately belong.  Laws  have  been  enacted_from  time  to  time,  as  oc- 
casion has  required,  granting  exclusive  rights  of  ferriage  across  the 
sound,  regulating  its  fisheries  and  navigation,  directing  the  diversion  .^^ 
of  its  waters,  and  the  construction  of  new  inlets  into  the  Long  Island 
ports,  authorizing  the  projection  of  piers  into  its  waters,  and  the 
collection  of  dockage  and  wharfage  in  its  harbors,  and  empowering 
the  commissioners  of  the  land  office  to  make  grants,  for  like  pur- 
poses, of  lands  under  the  waters  of  the  sound,  not  extending  five 
hundred  feet  below  low-water  mark,  as  well  as  lands  between  high 
and  low  water  mark.  Laws  1853,  c.  83 ;  Laws  1865,  c.  642 ;  Laws 
1849,  c.  435  ;  Laws  1839,  c.  173  ;"Laws  1855,  c.  556;  Laws  1847,  c.  409 ; 
Laws  1858,  c.  261;  Uws  1835,  c.  234;  Id.  c.  232;  1  R.  S.  (3d  Ed.) 
231,  §§  81,  82,  85. 

The  territorial  jurisdiction  of  the  state  is  disputed  by  no  power, 
either  foreign  or  domestic.  Its  title  is  clear  under  the  decisions  of 
our  own  tribunals,  and  equally  clear  under  the  rules  of  international 
law.  We  see  no  reason  why  it  should  not  be  upheld  by  the  courts  as 
firmly  as  it  has  been  maintained  by  the  state  government. 

Judgment  should  be  reversed,  and  a  new  trial  should  be  ordered. 

Hunt,  J.,  also  read  an  opinion  for  reversal. 

All  the  judges  concurring,  except  Davies,  C.  J.,  who  read  a  dissent- 
ing opinion. 

Judgment  reversed,  and  a  new  trial  ordered.* 

♦Natural  bodies  of  water  connecting  the  high  seas  should  be  open  to  naviga- 
tion, even  although  their  termini  are  within  one  and  the  same  state. 

In  artificial  bodies  of  water  connecting  the  high  seas,  such  as  canals,  the 
nations  possessing  the  land  through  which  the  canal  runs  (as  in  the  case  of  the 
Kiel  Canal),  or  holding  the  stock  when  shares  have  been  issued  for  its  con- 
struction (as  in  the  case  of  the  Suez  Canal),  or  building  the  canal  (as  in  the 
case  of  the  Panama  Canal),  claim  special  rights  to  the  canal  and  in  its  super- 
vision and  use. 

For  the  International  Convention  of  October  29.  ISSS.  regulating  the  Suez 
Canal,  and  the  treaty  between  Great  Britain  and  the  United  States  of  Novem- 
ber 18,  1901,  concerning  the  Panama  Canal,  see  the  Proceedings  of  the  Ameri- 
can Society  of  International  Law  for  1913.  • 

For  the  rules  concerning  the  use  of  the  Kiel  Canal,  see  the  Treaty  of  Ver- 
sailles of  June  2S,  1019,  articles  3S0-3S6. 


222  RIGHTS  AND   DUTIES  OF  NATIONS  IN  TIME  OF   PEACE       (Part  1 


UNITED  STATES.v.  RODGERS. 

(Supreme  Court  of  the  United  States,  1893.     150  U.  S.  249,  14  Sup.  Ct.  109, 

37  L.  Ed.  1071.) 

In  February,  1888,  the  defendant,  Robert  S.  Rodgers,  and  others, 
were  indicted  in  the  District  Court  of  the  United  States  for  the  East- 
ern District  of  Michigan  for  assaulting,  in  August,  1887,  with  a  dan- 
gerous weapon,  one  James  Downs,  on  board  of  the  steamer  Alaska,  a 
vessel  belonging  to  citizens  of  the  United  States,  and  then  being  with- 
in the  admiralty  jurisdiction  of  the  United  States,  and  not  within  the 
jurisdiction  of  any  particular  state  of  the  United  States,  viz.  within  the 
territorial  limits  of  the  Dominion  of  Canada. 

The  indictment  contained  six  counts,  charging  the  offence  to  have 
been  committed  in  different  ways,  or  with  different  intent,  and  was 
remitted  to  the  Circuit  Court  for  the  Sixth  Circuit  of  the  Eastern  Dis- 
trict of  Michigan.  There  the  defendant  Rodgers  filed  a  plea  to  the 
jurisdiction  of  the  court,  alleging  that  it  had  no  jurisdiction  of  the  mat- 
ters charged,  as  appeared  on  the  face  of  the  indictment,  and  to  the 
plea  a  demurrer  was  filed.  Upon  this  demurrer  the  judges  of  the  Cir- 
cuit Court  were  divided  in  opinion,  and  they  transmitted  to  this  court 
the  following  certificate  of  division  ;     *     *     * 

"The  matter  of  the  plea  of  the  jurisdiction  coming  on  to  be  heard, 
*  *  *  the  said  circuit  and  district  judges  were  divided  in  opinion 
on  the  question:  'Whether  the  courts  of  the  United  States  have  ju- 
risdiction, under  section  5346  of  the  Revised  Statutes  of  the  United 
States,  to  try  a  person  for  an  assault,  with  a  dangerous  weapon,  com- 
mitted on  a  vessel  belonging  to  a  citizen  of  the  United  States,  when 
such  vessel  is  in  the  Detroit  River,  out  of  the  jurisdiction  of  any  par- 
ticular State  and  within  the  territorial  limits  of  the  Dominion  of 
Canada.'     *     *     * 

Section  5346  of  the  Revised  Statutes  (Comp.  St.  §  10449),  upon 
which  the  indictment  was  found,  is  as  follows : 

"Sec.  5346.  Every  person  who,  upon  the  high  seas,  or  in  any  arm  of 
the  sea,  or  in  any  river,  haven,  creek,  basin,  or  bay,  within  the  ad- 
miralty-jurisdiction of  the  United  States,  and  out  of  the  jurisdiction 
of  any  particular  state,  on  board  any  vessel  belonging  in  whole  or  part 
to  the  United  States,  or  any  citizen  thereof,  with  a  dangerous  weapon, 
or  with  intent  to  perpetrate  any  felony,  commits  an  assault  on  another 
shall  be  punished  by  a  fine  of  not  more  than  three  thousand  dollars  and 
by  imprisonment  at  hard  labor  not  more  than  tliree  years." 

The  statute  relating  to  the  place  of  trial  in  this  case  is  contained  in 
section  730  of  the  Revised  Statutes  (Comp.  St.  §  1023),  which  is  as 
follows : 

"Sec.  730.  The  trial  of  all  offences  committed  upon  the  high  seas  or 
elsewhere,  out  of  the  jurisdiction  of  any  particular  state  or  district, 


Ch.  3)  TERRITORY  OP   STATES  223 

shall  be  in  the  district,  where  the  offender  is  found  or  into  which  he  is 
first  brought."  ^^ 

Mr,  Justice  Field  delivered  the  opinion  of  the  court. 

Several  questions  of  interest  arise  upon  the  construction  of  section 
5346  of  the  Revised  Statutes  (Comp.  St.  §  10449),  upon  which  the  in- 
dictment in  this  case  was  found.  The  principal  one  is  whether  the  term 
"high  seas,"  as  there  used,  is  applicable  to  the  open,  unenclosed  waters 
of  the  Great  Lakes,  between  which  the  Detroit  river  is  a  connecting 
stream.  The  term  was  formerly  used,  particularly  by  writers  on  public 
law,  and  generally  in  official  communications  between  different  govern- 
ments, to  designate  the  open,  unenclosed  waters  of  the  ocean,  or  of  the 
British  seas,  outside  of  their  ports  and  havens.  At  one  time  it  was 
claimed  that  the  ocean,  or  portions  of  it,  were  subjected  to  the  exclu- 
sive use  of  particular  nations.  The  Spaniards,  in  the  sixteenth  century, 
asserted  the  right  to  exclude  all  others  from  the  Pacific  Ocean.  The 
Portuguese  claimed,  with  the  Spaniards,  under  the  grant  of  Pope  Alex- 
ander VI.,  the  exclusive  use  of  the  Atlantic  Ocean  west  and  south  of 
a  designated  line.  And  the  English,  in  the  seventeenth  century,  claimed 
the  exclusive  right  to  navigate  the  seas  surrounding  Great  Britain. 
Woolsey  on  International  Law,  §  55. 

In  the  discussions  which  took  place  in  support  of  and  against  these 
extravagant  pretensions  the  term  "high  seas"  was  applied,  in  the  sense 
stated.  It  was  also  used,  in  that  sense  by  English  courts  and  law 
writers.  There  was  no  discussion  with  them  as  to  the  waters  of  other 
seas.  The  public  discussions  were  generally  limited  to  the  considera- 
tion of  the  question  whether  the  high  seas,  that  is,  the  open,  unenclosed 
seas,  as  above  defined,  or  any  portion  thereof,  could  be  the  property  or 
under  the  exclusive  jurisdiction  of  any  nation,  or  whether  they  were 
open  and  free  to  the  navigation  of  all  nations.  The  inquiry  in  the 
English  courts  was  generally  limited  to  the  question  whether  the  juris- 
diction of  the  admiralty  extended  to  the  waters  of  bays  and  harbors, 
such  extension  depending  upon  the  fact  whether  they  constituted  a 
part  of  the  high  seas. 

In  his  treatise  on  the  rights  of  the  sea,  Sir  Matthew  Hale  says : 
"The  sea  is  either  that  which  lies  within  the  body  of  a  county,  or 
without.  That  arm  or  branch  of  the  sea  which  lies  within  the  fauces 
terras,  where  a  man  may  reasonably  discern  between  shore  and  shore, 
is,  or  at  least  may  be,  within  the  body  of  a  county,  and,  therefore, 
within  the  jurisdiction  of  the  sheriff  or  coroner.  That  part  of  the  sea 
which  lies  not  within  the  body  of  a  county  is  called  the  main  sea  or 
ocean."  De  Jure  Maris,  c.  iv.  By  the  "main  sea"  Hale  here  means 
the  same  thing  expressed  by  the  term  "high  sea" — "mare  altum," 
or  "le  haut  mer." 

2^  The  statement  of  facts  is  abridged  and  the  dissenting  opinions  of  Mr. 
Justice  Gray  and  Mr.  Justice  Brown  are  omitted. 


224  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME  OF   PEACE       (Part  1 

In  Waring  v.  Clarke,  5  How.  440,  453,  12  L.  Ed.  226,  this  court  said 
that  it  had  been  frequently  adjudicated  in  the  English  common  law 
courts  since  the  restraining  statutes  of  Richard  II  and  Henry  IV  "that 
high  seas  mean  that  portion  of  the  sea  which  washes  the  open  coast." 
In  United  States  v.  Crush,  5  Mason,  290.  Fed.  Cas.  No.  15,268,  it  was 
held  by  Mr.  Justice  Story,  in  the  United  States  Circuit  Court,  that  the 
term  "high  seas,"  in  its  usual  sense,  expresses  the  unenclosed  ocean  or 
that  portion  of  the  sea  which  is  without  the  fauces  terrse  on  the  sea- 
coast,  in  contradistinction  to  that  which  is  surrounded  or  enclosed  be- 
tween narrow  headlands  or  promontories.  It  was  the  open,  unenclosed 
waters  of  the  ocean,  or  the  open,  unenclosed  waters  of  the  sea,  which 
constituted  the  "high  seas"  in  his  judgment.  There  was  no  distinction 
made  by  him  between  the  ocean  and  the  sea,  and  there  was  no  occasion 
for  any  such  distinction.  The  question  in  issue  was  whether  the  al- 
leged offences  were  committed  within  a  county  of  Massachusetts  on 
'the  seacoast,  or  without  it,  for  in  the  latter  case  they  were  committed 
upon  the  high  seas  and  within  the  statute.  It  was  held  that  they  Avere 
committed  in  the  county  of  Suffolk,  and  thus  were  not  covered  by  the 
statute. 

If  there  were  no  seas  other  than  the  ocean,  the  term  "high  seas" 
would  be  limited  to  the  open, "unenclosed  waters  of  the  ocean.  But  as 
there  are  other  seas  besides  the  ocean,  there  must  be  high  seas  other 
than  those  of  the  ocean.  A  large  commerce  is  conducted  on  seas  other 
than  the  ocean  and  the  English  seas,  and  it  is  equally  necessary  to 
distinguish  between  their  open  waters  and  their  ports  and  havens,  and 
to  provide  for  offences  on  vessels  navigating  those  waters  and  for  colli- 
sions between  them.  The  term  "high  seas"  does  not,  in  either  case, 
indicate  any  separate  and  distinct  body  of  water;  but  only  the  open 
waters  of  the  sea  or  ocean,  as  distinguished  from  ports  and  havens  and 
waters  within  narrow  headlands  on  the  coast.  This  distinction  was 
observed  by  Latin  writers  between  the  ports  and  havens  of  the  Medi- 
terranean and  its  open  waters — the  latter  being  termed  the  high  seas.^* 
In  that  sense  the  term  may  also  be  properly  used  in  reference  to  the 
open  waters  of  the  Baltic  and  the  Black  Sea,  both  of  which  are  inland 
seas,  finding  their  way  to  the  ocean  by  a  narrow  and  distant  channel. 
Indeed,  wherever  there  are  seas  in  fact,  free  to  the  navigation  of  all 
nations  and  people  on  their  borders,  their  open  waters  outside  of  the 
portion  "surrounded  or  enclosed  between  narrow  headlands  or  promon- 
tories," on  the  coast,  as  stated  by  Mr.  Justice  Story,  or  "without  the 
body  of  a  county,"  as  declared  by  Sir  Matthew  Hale,  are  properly 
characterized  as  high  seas,  by  whatever  name  the  bodies  of  water  of 
which  they  are  a  part  may  be  designated.    Their  names  do  not  deter- 

2  4  "Insula  portum 

EflBcit  objectu  laterum,  quibus  omnis  ab  alto 

Fraugitur,  inque  sinus  sciudit  sese  unda  reductos." 

—The  iEneid,  Lib.  1,  v.  159-161. 


Ch.  3),  TERRITORY   OF  STATES  225 

mine  their  character.  There  are,  as  said  above,  high  seas  on  the 
Mediterranean  (meaning  outside  o£  the  enclosed  waters  along  its  coast), 
upon  which  the  principal  commerce  of  the  ancient  world  was  conducted 
and  its  great  naval  battles  fought.  To  hold  that  on  such  seas  there 
are  no  high  seas,  within  the  true  meaning  of  that  term,  that  is,  no  open, 
unenclosed  waters,  free  to  the  navigation  of  all  nations  and  people  on 
their  borders,  would  be  to  place  upon  that  term  a  narrow  and  contracted 
meaning.  We  prefer  to  use  it  in  its  true  sense,  as  applicable  to  the 
open,  unenclosed  waters  of  all  seas,  than  to  adhere  to  the  common 
meaning  of  the  term  two  centuries  ago,  when  it  was  generally  limited 
to  the  open  waters  of  the  ocean  and  of  seas  surrounding  Great  Britain, 
the  freedom  of  which  was  then  the  principal  subject  of  discussion.  If 
it  be  conceded,  as  we  think  it  must  be,  that  the  open,  unenclosed  waters 
of  the  Mediterranean  are  high  seas,  that  concession  is  a  sufficient  an- 
swer to  the  claim  that  the  high  seas  always  denote  the  open  waters  of 
the  ocean. 

Whether  the  term  is  applied  to  the  open  waters  of  the  ocean  or  of  a 
particular  sea,  in  any  case,  will  depend  upon  the  context  or  circum- 
stances attending  its  use,  which  in  all  cases  affect,  more  or  less,  the 
meaning  of  language.  It  may  be  conceded  that  if  a  statement  is  made 
that  a^vessel  is  on  the  high  seas,  without  any  qualification  by  language 
or  circumstance,  it  will  be  generally  understood  as  meaning  that  the 
vessel  is  upon  the  open  waters  of  one  of  the  oceans  of  the  world.  It 
is  true,  also,  that  the  ocean  is  often  spoken  of  by  writers  on  public  law 
as  the  sea,  and  characteristics  are  then  ascribed  to  the  sea  generally 
which  are  properly  applicable  to  the  ocean  alone ;  as,  for  instance,  that 
its  open  waters  are  the  highway  of  all  nations.  Still  the  fact  remains 
that  there  are  other  seas  than  the  ocean  whose  open  waters  constitute 
a  free  highway  for  navigation  to  the  nations  and  people  residing  on 
their  borders,  and  are  not  a  free  highway  to  other  nations  and  people, 
except  there  be  free  access  to  those  seas  by  open  waters  or  by  conven- 
tional arrangements. 

As  thus  defined,  the  term  would  seem  to  be  as  applicable  to  the 
open  waters  of  the  great  northern  lakes  as  it  is  to  the  open  waters  of 
those  bodies  usually  designated  as  seas.  The  Great  Lakes  possess 
every  essential  characteristic  of  seas.  They  are  of  large  extent  in 
length  and  breadth;  they  are  navigable  the  whole  distance  in  either 
direction  by  the  largest  vessels  known  to  commerce;  objects  are  not 
distinguishable  from  the  opposite  shores ;  they  separate,  in  manv 
instances,  states,  and  in  some  instances  constitute  the  boundary  be- 
tween independent  nations ;  and  their  waters,  after  passing  long  dis- 
tances, debouch  into  the  ocean.  The  fact  that  their  waters  are  fresh 
and  not  subject  to  the  tides,  does  not  affect  their  essential  character 
as  seas.  Many  seas  are  tideless,  and  the  waters  of  some  are  saline 
only  in  a  very  slight  degree. 
Scott  Int.Law.— 15 


226  RIGHTS  AND  DUTIES   OF  NATIONS   IN   TIME   OF  PEACE       (Parti 

The  waters  of  Lake  Superior,  the  most  northern  of  these  lakes,  after 
traversing  nearly  400  miles,  with  an  average  breadth  of  over  100  miles, 
and  those  of  Lake  Michigan,  which  extend  over  350  miles,  with  an 
average  breadth  of  65  miles,  join  Lake  Huron,  and,  after  flowing  about 
250  miles,  with  an  average  breadth  of  70  miles,  pass  into  the  river  St. 
Clair;  thence  through  the  small  lake  of  St.  Clair  into  the  Detroit 
river;  thence  into  Lake  Erie  and,  by  the  Niagara  river,  into  Lake 
Ontario;  whence  they  pass,  by  the  river  St.  Lawrence,  to  the  ocean, 
making  a  total  distance  of  over  2,000  miles.  Ency.  Britannica,  vol.  21, 
p.  178.  The  area  of  the  Great  Lakes,  in  round  numbers,  is  100,000 
square  miles.  Id.  vol.  14,  p.  217.  They  are  of  larger  dimensions 
than  many  inland  seas  which  are  at  an  equal  or  greater  distance  from 
the  ocean.  The  waters  of  the  Black  Sea  travel  a  like  distance  before 
they  come  into  contact  with  the  ocean.  Their  first  outlet  is  through 
the  Bosphorus,  which  is  about  20  miles  long  and  for  the  greater  part 
of  its  way  less  than  a  mile  in  width,  into  the  Sea  of  Marmora,  and 
through  that  to  the  Dardanelles,  which  is  about  40  miles  in  length  and 
less  than  four  miles  in  width,  and  then  they  find  their  way  through  the 
islands  of  the  Greek  Archipelago,  up  the  Mediterranean  Sea,  past  the 
Straits  of  Gibralter  to  the  ocean,  a  distance,  also,  of  over  2,000 
miles.     *     *     * 

It  is  to  be  observed  also  that  the  term  "high"  in  one  of  its  signifi- 
cations is  used  to  denote  that  which  is  common,  open,  and  public.-'f 
Thus  every  road  or  way  or  navigable  river  which  is  used  freely  by  the 
public  is  a  "high"  way.  So  a  large  body  of  navigable  water  other 
than  a  river,  which  is  of  an  extent  beyond  the  measurement  of  one's 
unaided  vision,  and  is  open  and  unconfined,  and  not  under  the  exclu- 
sive control  of  any  one  nation  or  people,  but  is  the  free  highway  of 
adjoining  nations  or  people,  must  fall  under  the  definition  of  "high 
seas"  within  the  meaning  of  the  statute.  We  may  as  appropriately 
designate  the  open,  unenclosed  waters  /of  the  lakes  as  the  high  seas 
of  the  lakes,  as  to  designate  similar  waters  of  the  ocean  as  the  high 
seas  of  the  ocean,  or  similar  waters  of  the  Mediterranean  as  the  high 
seas  of  the  Mediterranean. 

The  language  of  section  5346,  immediately  following  the  term  "high 
seas,"  declaring  the  penalty  for  violent  assaults  when  committed  on 
board  of  a  vessel  in  any  arm  of  the  sea  or  in  any  river,  haven,  creek, 
basin,  or  bay,  within  the  admiralty  jurisdiction  of  the  United  States, 
and  out  of  the  jurisdiction  of  any  particular  State,  equally  as  when 
committed  on  board  of  a  vessel  on  the  high  seas,  lends  force  to  the 
construction  given  to  that  term.  The  language  used  must  be  read  in 
conjunction  with  that  term,  and  as  referring  to  navigable  waters  out 
of  the  jurisdiction  of  any  particular  state,  but  connecting  with  the 
high  seas  mentioned.  The  Detroit  river,  upon  which  was  the  steamer 
Alaska  at  the  time  the  assault  was  committed,  connects  the  waters  of 
Lake  Huron  (with  which,  as  stated  above,  the  waters  of  Lake  Superior 

Scott  Int.Law 


Ch.  3)  TERRITORY  OF   STATES  227 

and  Lake  Michigan  join)  with  the  waters  of  Lake  Erie,  and  separates 
the  Dominion  of  Canada  from  the  United  States,  constituting  the 
boundary  between  them,  the  dividing  hne  running  nearly  midway  be- 
tween its  banks,  as  estabhshed  by  commissioners,  pursuant  to  the 
treaty  between  the  two  countries.  8  Stat.  274,  276.  The  river  is 
about  22  miles  in  length  and  from  one  to  three  miles  in  width,  and  is 
navigable  at  all  seasons  of  the  year  by  vessels  of  the  largest  size.  The 
number  of  vessels  passing  through  it  each  year  is  immense.  Between 
the  years  1880  and  1892,  inclusive,  they  averaged  from  thirty-one  to 
forty  thousand  a  year,  having  a  tonnage  varying  from  sixteen  to  twen- 
ty-four millions.     *     *     * 

The  statute  under  consideration,  provides  that  every  person  who, 
upon  the  high  seas  or  in  any  river  connecting  with  them,  as  we  construe 
its  language,  within  the  admiralty  jurisdiction  of  the  United  States, 
and  out  of  the  jurisdiction  of  any  particular  state,  commits,  on  board 
of  any  vessel  belonging  in  whole  or  in  part  to  the  United  States,  or 
any  citizen  thereof,  an  assault  on  another  with  a  dangerous  weapon  or 
with  intent  to  perpetrate  a  felony,  shall  be  punished,  etc.  The  Detroit 
river,  from  shore  to  shore,  is  within  the  admiralty  jurisdiction  of  the 
L^nited  States,  and  connects  with  the  open  waters  of  the  lakes — high 
seas,  as  we  hold  them  to  be,  within  the  meaning  of  the  statute.  From 
the  boundary  line,  near  its  center,  to  the  Canadian  shore  it  is  out  of 
the  jurisdiction  of  the  state  of  Michigan.  The  case  presented  is 
therefore  directly  within  its  provisions.  The  act  of  Congress  of  Sep- 
tember 4,  1890,  26  Stat.  424,  c.  874  (1  Sup.  to  the  Rev.  Stat.  c.  874,  p. 
799  [Comp.  St.  §  10445]),  providing  for  the  punishment  of  crimes  sub- 
sequently committed  on  the  Great  Lakes,  does  not,  of  course,  affect 
the  construction  of  the  law  previously  existing.     *     *     * 

As  we  have  before  stated,  a  vessel  is  deemed  part  of  the  territory 
of  the  country  to  which  she  belongs.  Upon  that  subject  we  quote 
the  language  of  Mr.  Webster,  while  Secretary  of  State,  in  his  letter 
to  Lord  Ashburton  of  August,  1842.  Speaking  for  the  government 
of  the  United  States,  he  stated  with  great  clearness  and  force  the 
doctrine  which  is  now  recognized  by  all  countries.  He  said :  "It 
is  natural  to  consider  the  vessels  of  a  nation  as  parts  of  its  territory, 
though  at  sea,  as  the  state  retains  its  jurisdiction  over  them;  and, 
according  to  the  commonly  received  custom,  this  jurisdiction  is  pre- 
served over  the  vessels  even  in  parts  of  the  sea  subject  to  a  foreign  do- 
minion. This  is  the  doctrine  of  the  law  of  nations,  clearly  laid  down 
by  writers  of  received  authority,  and  entirely  conformable,  as  it  is  sup- 
posed, with  the  practice  of  modern  nations.  If  a  murder  be  committed 
on  board  of  an  American  vessel  by  one  of  the  crew  upon  another  or 
upon  a  passenger,  or  by  a  passenger  on  one  of  i  the  crew  or  another 
passenger,  while  such  vessel  is  lying  in  a  port  within  the  jurisdiction 
of  a  foreign  state  or  sovereignty,  the  offence  is  cognizable  and  punish- 
able by  the  proper  court  of  the  United  States  in  the  same  manner  as  if 


228  RIGHTS  AND   DUTIES   OF  NATIONS   IN  TIME  OP   PEACE       (Part  1 

such  offence  had  been  committed  on  board  the  vessel  on  the  high  seas. 
The  law  of  England  is  supposed  to  be  the  same.  It  is  true  that  the 
jurisdiction  of  a  nation  over  a  vessel  belonging  to  it  while  lying  in  the 
port  of  another  is  not  necessarily  wholly  exclusive.  We  do  not  so  con- 
sider or  so  assert  it.  For  any  unlawful  acts  dene  by  her  while  thus  ly- 
ing in  port  and  for  all  contracts  entered  into  while  there  by  her  master 
or  owners,  she  and  they  must,  doubtless,  be  ansvv'erable  to  the  laws  of 
the  place.  Nor  if  her  master  or  crew  while  on  board  in  such  port,  break 
the  peace  of  the  community  by  the  commission  of  crimes,  can  exemp- 
tion be  claimed  for  them.  But,  nevertheless,  the  law  of  nations,  as 
I  have  stated  it,  and  the  statutes  of  governments  founded  on  that  law, 
as  I  have  referred  to  them,  show  that  enlightened  nations,  in  modern 
times,  do  clearly  hold  that  the  jurisdiction  and  laws  of  a  nation  accom- 
pany her  ships  not  only  over  the  high  seas,  but  into  ports  and  harbors, 
or  wheresoever  else  they  may  be  water-borne,  for  the  general  purpose 
of  governing  and  regulating  the  rights,  duties,  and  obligations  of  those 
on  board  thereof,  and  that,  to  the  extent  of  the  exercise  of  this  juris- 
diction, tliev  are  considered  as  parts  of  the  territory  of  the  nation 
herself."    6\Vebster's  Works,  306,  307.     *     *     * 

In  our  judgment  the  District  Court  of  the  Eastern  District  of 
Michigan  had  jurisdiction  to  try  the  defendant  upon  the  indictment 
found,  and  it  having  been  transferred  to  the  Circuit  Court,  that  court 
had  jurisdiction  to  proceed  with  the  trial,  and  the  demurrer  to  its 
jurisdiction  should  have  been  overruled.  Our  opinion,  in  answer  to  the 
certificate,  is  that — 

The  courts  of  the  United  States  have  jurisdiction,  under  section 
5346  of  the  Revised  Statutes,  to  try  a  person  for  an  assault,  with  a 
dangerous  weapon,'  committed  on  a  vessel  belonging  to  a  citizen  of 
the  United  States,  when  such  vessel  is  in  the  Detroit  river,  out  of  the 
jurisdiction  of  any  particular  state,  and  within  the  territorial  limits  of 
the  Dominion  of  Canada,  and  it  will  be  returned  to  the  Circuit  Court 
of  the  United  States  for  the  Sixth  Circuit  and  Eastern  District  of 
Michigan;  and  it  is  so  ordered.^" 

2  5  Dissenting  opinions  of  Mr.  Justice  Gray  and  Mr.  Justice  Brown  omitted. 

Distineruished  in  United  States  v.  Peterson  CD.  C.)  64  Fed.  145  (1S94) ;  Bige- 
low  V.  Nickerson,  70  Fed.  113,  17  C.  C.  A.  1,  30  L.  R.  A.  336  (1895). 

For  international  controversies  concerning  sounds  and  straits,  see  the 
Danislv  Claim  to  sound  dues  (Richard  Henry  Dana's  edition  of  Wheaton,  264- 
267  (1866) ;  Freeman  Snow's  Treaties  and  Topics  in  American  Diplomacy,  pp. 
124-127  (1894).  For  some  of  the  controversies  concerning  the  Bosphorus  and 
Dardanelles,  see  Dana's  Wheaton,  263-264,  273-^74,  Dana's  note  No.  Ill; 
Eugene  Schuyler's  American  Diplomacy  and  the  Furtherance  of  Commerce, 
317  (1886). 

S' o.  also,  John  Bassett  Moore's  Digest  of  International  Law,  vol.  1,  658-668 
(1906). 

In  the  Matter  of  Certain  Craft  Captured  on  the  Victoria  Nyanza,  Law  Re- 
ports, 1919,  Probate  Division,  83  (1918),  it  is  held,  according  to  the  headnote, 
that: 

"Captures  on  inland  waters  are  not  excluded  from  the  operation  of  the  law 
of  maritime  prize,  and  enemy  craft  captured  on  an  inland  lake  (The  Victoria 
Nyanza)  by  His  Majesty's  armed  ships  are  subject  to  condemnation  as  prize." 


Ch.  3)  TEREITORY   OF  STATES  229 

m.  Bays 
SCHOONER  WASHINGTON  CASE. 

(American    and    British    Claims    Commission,    1853-55.      Report    of    Deci- 
sions, 170.) 

To  settle  and  finally  determine  any  and  all  ^laims  between  Great 
Britain  and  the  United  States  not  arising  "out  of  any  transaction  of 
a  date  prior  to  the  24th  of  December,  1814,"  Great  Britain  and  the 
United  States  concluded  the  Claims  Convention  of  February  8,  1853, 
providing  for  the  settlement  oi  such  claimsjBy  a  commission  of  three 
members,  one  to  be  appointed  by  each  government  and  the  unipire  to 
be  selected  by  the  commissioners,  to  hear  and  to  pass  finally  upon 
any  and  all  claims  upon  which  the  commissioners  should  not  agree. 
Pursuant  to  this  convention  the  following  case  was  submitted  to  the 
commissioners : 

The  schooner  Washington,  while  employed  in  fishing  in  the  Bay  of 
Fundy,  ten  miles  distant  from  the  shore,  was  seized  by  her  Britannic 
Majesty's  cruiser,  and  taken  to  Yarmouth,  in  Nova  Scotia,  and  con- 
demned on  the  ground  of  being  engaged  in  fishing  in  British  waters, 
in  violation  of  the  provisions  of  the  treaty  relative  to  the  fisheries, 
entered  into  between  the  United  States  and  the  British  government  on 
October  20,  1818. 

Claim  of  dajnage  was  made  before  the  commission  on  the  ground 
that  the  seizure  was  in  violation  of  the  provisions  of  that  treaty  and 
of  the  law  of  nations. 

It  was  contended  by  the  British  government  that — 

1.  That  the  Bay  of  Fundy  was  an  indentation  of  the  sea,  extend- 
ing up  into  the  land,  both  shores  of  which  belonged  to  Great  Britain, 
and  that  for  this  reason  she  had,  by  virtue  of  the  law  of  nations,  the  ex- 
clusive jurisdiction  over  this  sheet  of  water,  and  the  sole  right  of  taking 
fish  within  it. 

2.  It  was  contended  that,  by  a  fair  construction  of  the  treaty  of 
October  20,  1818,  between  Great  Britain  and  the  United  States,  the 
United  States  had  renounced  the  liberty,  heretofore  enjoyed  or  claimed, 
to  take  fish  on  certain  bays,  creeks,  or  harbors,  including,  as  was  con- 
tended, the  Bay  of  Fundy,  and  other  similar  waters  with  certain  limits 
described  by  the  treaty. 

Bates,  Umpire.  The  schooner  Washington  was  seized  by  the  reve- 
nue schooner  Julia,  Captain  Darby,  while  fishing  in  the  Bay  of  Fundy, 
ten  miles  from  the  shore,  on  the  10th  day  of  May,  1843,  on  the  charge 
of  violating  the  treaty  of  1818.  She  was  carried  to  Yarmouth,  Nova 
Scotia,  and  there  decreed  to  be  forfeited  to  the  crown  by  the  judge 
of  the  vice  admiralty  court,  and  with  her  stores  ordered  to  be  sold. 
The  owners  of  the  Washington  claim  for  the  value  of  the  vessel  and 
appurtenances,   outfits,  and   damages,  $2,483,   and    for   eleven   vears' 


230  RIGHTS  AND   DUTIES   OF   NATIONS   IN  TIME   OF   PEACE       (Part  1 

interest,  $1,638,  amounting  together  to  $4,121.  By  the  recent  reci- 
procity treaty,  happily  conchided  between  the  United  States  and 
Great  Britain,  there  seems  no  chance  for  any  future  disputes  in  re- 
gard to  the  fisheries.  It  is  to  be  regretted,  that  in  that  treaty,  pro- 
vision was  not  made  for  settling  a  few  small  claims  of  no  importance 
in  a  pecuniary  sense,  which  were  then  existing,  but  as  they  have  not 
been  settled,  they  are  now  brought  before  this  commission. 

The  Washington  fishing  schooner  was  seized,  as  before  stated,  in 
the  Bay  of  Fundy,  ten  miles  from  the  shore,  off  Annapolis,  Nova 
Scotia. 

It  will  be  seen  by  the  treaty  of  1783,  between  Great  Britain  and 
the  United  States,  that  the  citizens  of  the  latter,  in  common  with  the 
subjects  of  the  former,  enjoyed  the  right  to  take  and  cure  fish  on 
the  shores  of  all  parts  of  her  Majesty's  dominions  in  America,  used 
by  British  fishermen;  but  not  to  dry  fish  on  the  island  of  Newfound- 
land, which  latter  privilege  was  confined  to  the  shores  of  Nova  Scotia 
in  the  following  words :  "And  American  fishermen  shall  have  liberty 
to  dry  and  cure  fish  on  any  of  the  unsettled  bays,  harbors,  and  creeks 
of  Nova  Scotia,  but  as  soon  as  said  shores  shall  become  settled,  it  shall 
not  be  lawful  to  dry  or  cure  fish  at  such  settlement,  without  a  previous 
agreement  for  that  purpose  with  the  inhabitants,  proprietors,  or  pos- 
sessors of  the  ground." 

The  treaty  of  1818  contains  the  following  stipulations  in  relation  to 
the  fishery:  "Whereas,  differences  have  arisen  respecting  the  liberty 
claimed  by  the  United  States  to  take,  dry,  and  cure  fish  on  certain 
coasts,  bays,  harbors,  and  creeks  of  his  Britannic  Majesty's  dominions 
in  America,  it  is  agreed  that  the  inhabitants  of  the  United  States 
shall  have,  in  common  with  the  subjects  of  his  Britannic  Majesty, 
the  liberty  to  fish  on  certain  portions  of  the  southern,  western,  and 
northern  coast  of  Newfoundland ;  and,  also,  on  the  coasts,  bays,  har- 
bors, and  creeks,  from  Mount  Joly,  on  the  southern  coast  of  Labrador, 
to  and  through  the  straits  of  Belle  Isle;  and  thence  northwardly  in- 
definitely along  the  coast,  and  that  American  fishermen  shall  have 
liberty  to  dry  and  cure  fish  in  any  of  the  unsettled  bays,  harbors,  and 
creeks  of  said  described  coasts,  until  the  same  become  settled,  and 
the  United  States  renounce  the  liberty  heretofore  enjoyed  or  claim.ed  by 
the  inhabitants  thereof,  to  take,  dry,  or  cure  fish,  on  or  within  three 
marine  miles  of  any  of  the  coasts,  bays,  creeks,  or  harbors  of  his 
Britannic  Majesty's  dominions  in  America,  not  included  in  the  above 
mentioned  limits:  Provided,  however,  that  the  American  fishermen 
shall  be  admitted  to  enter  such  bays  or  harbors,  for  the  purpose  of 
shelter,  and  of  repairing  damages  therein,  of  purchasing  wood,  and  of 
obtaining  water,  and  for  no  other  purpose  whatever.  But  they  shall 
be  under  such  restrictions  as  may  be  necessary  to  prevent  their  taking, 
drying,  or  curing  fish  therein,  or  in  any  other  manner  whatever  abus- 
ing the  privileges  hereby  reserved  to  them." 


Ch.  3)  TERRITORY   OF  STATES  231 

The  question  turns,  so  far  as  relates  to  the  treaty  stipulations  on 
the  meaning  given  to  the  word  "bays"  in  the  treaty  of  1783.  By  that 
treaty  the  Americans  had  no  right  to  dry  and  cure  fish  on  the  shores 
and  bays  of  Newfoundland,  but  they  had  that  right  on  the  coasts,  bays, 
harbors,  and  creeks  of  Nova  Scotia;  and  as  they  must  land  to  cure 
fish  on  the  shores,  bays,  and  creeks,  they  were  evidently  admitted  to 
the  shores  of  the  bays,  etc.  By  the  treaty  of  1818,  the  same  right  is 
granted  to  cure  fish  on  the  coasts,  bays,  etc.,  of  Newfoundland,  but  the 
Americans  relinquished  that  right,  and  the  right  to  fish  within  three 
miles  of  the  coasts,  bays,  etc.,  of  Nova  Scotia.  Taking  it  for  granted 
that  the  framers  of  the  treaty  intended  that  the  word  "bay"  or  "bays" 
should  have  the  same  meaning  in  all  cases,  and  no  mention  being  made 
of  headlands,  there  appears  no  doubt  that  the  Washington,  in  fishing 
ten  miles  from  the  shore,  violated  no  stipulations  of  the  treaty. 

It  was  urged  on  behalf  of  the  British  government,  that  by  coasts, 
bays,  etc.,  is  understood  an  imaginary  line,  drawn  along  the  coast 
from  fieadland  to  headland,  and  that  the  jurisdiction  of  her  Majesty 
extends  three  marine  miles  outside  of  this  line;  thus  closing  all  the 
bays  on  the  coast  or  shore,  and  that  great  body  of  water  called  the 
Bay  of  Fundy  against  Americans  and  others,  making  the  latter  a  Brit- 
ish bay.  This  doctrine  of  headlands  is  new,  and  has  received  a  proper 
limit  in  the  convention  between  France  and  Great  Britain  of  2d  August, 
1839,  in  which  "it  is  agreed  that  the  distance  of  three  miles  fixed  as 
the  general  limit  for  the  exclusive  right  of  fishery  upon  the  coasts 
of  the  two  countries  shall,  with  respect  to  bays,  the  mouths  of  which 
do  not  exceed  ten  miles  in  width,  be  measured  from  a  straight  line 
drawn  from  headland  to  headland." 

The  Bay  of  Fundy  is  from  65  to  75  miles  wide,  and  130  to  140 
miles  long,  it  has  several  bays  on  its  coasts;  thus  the  word  bay,  as 
applied  to  this  great  body  of  water,  has  the  same  meaning  as  that  ap- 
plied to  the  Bay  of  Biscay,  the  Bay  of  Bengal,  over  which  no  nation 
can  have  the  right  to  assume  the  sovereignty.  One  of  the  headlands 
of  the  Bay  of  Fundy  is  in  the  United  States,  and  ships  bound  to 
Passamaquoddy  must  sail  through  a  large  space  of  it.  The  island  of 
Grand  Menan  (British)  and  Little  Menan  (American)  are  situated 
nearly  on  a  line  from  headland  to  headland.  These  islands,  as  repre- 
sented in  all  geographies,  are  situate  in  the  Atlantic  Ocean.  The  con- 
clusion is,  therefore,  in  my  mind  irresistible,  that  the  Bay  of  Fundy 
is  not  a  British  bay,  nor  a  bay  within  the  meaning  of  the  word,  as 
used  in  the  treaties  of  1783  and  1818. 

The  owners  of  the  Washington,  or  their  legal  representatives,  are 
therefore  entitled  to  compensation,  and  are  hereby  awarded  not  the 
amount  of  their  claim,  which  is  excessive,  but  the  sum  of  three  thou- 
sand dollars,  due  on  the  15th  January,  1855. 


232  RIGHTS  AND   DUTIES   OP  NATIONS   IN  TIME  OF   PEACE       (Part  1 

STETSON  V.  UNITED  STATES. 
THE  ALLEGANEAN. 

(Court  of  Commissioners  of  Alabama  Claims,  1885.    32  Albany  Law  J.  484.) 20 

Claim  to  recover  damages  for  destruction  of  a  vessel.  The  opinion 
states  the  facts.7     ]     "" 

Henry  M.  Baker,  for  claimants. 

John  H.  A.  Creswell,  for  United  States. 

Draper,  J.,  delivered  the  opinion  of  the  court. 

The  facts  upon  which  a  judgment  to  the  amount  of  $69,334.80  is 
prayed  for  in  this  case  are  substantially  as  follows : 

The  ship  AUeganean,  duly  registered  at  the  port  of  New  York,  and 
being  recently  repaired  and  well  equipped,  and  entitled  to  the  protec- 
tion of  the  United  States,  cleared  with  a  cargo  from  the  port  of  Bal- 
timore on  the  22d  of  October,  1862,  upori^a.  vo}^aige  Td"T-,ondoh.,  Six 
days  later,  at  about  10:30  o'clock  in  the  evening,  being  at_anch'6f, 
through  rough  water  in  Chesapeake  Bay,  south  of  the  mouth  of  the 
Rappahannock  river,  and  opposite  Guinn's  Island,  she  was  boarded 
by  some  eighteen  officers  and  men  of  the  Confederate  navy,  command- 
ed by  Lieutenants  John  Taylor  Wood  and  S.  Smith  Lee.  These 
leaders  were  commissioned  officers  in  the  Confederate  navy,  and  in 
the  attack  upon  the  AUeganean  they  were  acting  under  the  special  or- 
ders of  the  Secretary  of  the  Navy  of  the  Confederate  States,  and  the 
men  accompanying  them  had  been  specially  detailed  from  the  James 
river  squadron,  for  the  purpose  of  preying  upon  United  States  mer- 
chant vessels  in  Chesapeake  Bay.  They  came  overland  to  Chesapeake 
Bay  from  the  Patrick  Henry,  an  armed  and  commissioned  Confederate 
vessel,  and  securing  two  or  three  small  vessels — the  largest  being  of 
fifteen  or  twenty  tons  burden — had  been  cruising  about  two  or  three 
nights  before  the  attack.     *     *     * 

This  force  boarded  the  AUeganean,  as  stated,  speedily  reduced  the 
crew  of  that  vessel  to  subjection  and  the  state  of  prisoners  of  war, 
and  then  burned  the  ship,  totally  destroying  her,  except  that  some  few 
remnants  were  afterwards  picked  up  and  disposed  of,  the  proceeds  of 
which  the  owners  account  for  in  making  up  their  claim. 

The  value  of  the  AUeganean  at  the  time  of  loss  is  placed  by  the 
marine  experts  on  behalf  of  the  government  at  $52,591.03,  and  by  the 
witnesses  for  the  claimants  at  amounts  varying  from  $60,000  to 
$75,000.  The  evidence  seems  to  establish  beyond  question  the  fact 
that  the  vessel  was  more  than  four  miles  from  any  shore  at  the  time 
of  capture  and  destruction.     *     *     * 

The  term  "high  ^eas"  as  used  by  legislative  bodies,  the  courts  and 
text-writers,  has  been  construed  to  express  a  widely  different  meaning. 
As  used  to  define  the  jurisdiction  of  admiralty  courts,  it  is  held  to 

26  See,  also,  4  Moore's  International  Arbitrations,  4332 ;  5  Id.  4675. 


Ch.  3)  TERRITORY   OP   STATES  233 

mean  the  waters  of  the  ocean  exterior  to  low-water  mark.  As  used 
in  international  law,  to  fix  the  limits  of  the  open  ocean,  upon  which 
"all  peoples  possess  common  rights,  the  "great  highway  of  nations," 
it  has  been  held  to  mean  only  so  much  of  the  ocean  as  is  exterior  to 
a  line  running  parallel  with  the  shore,  and  some  distance  therefrom, 
commonly  such  distance  as  can  be  defended  by  artillery  upon  the 
shore,  and,  therefore,  a  cannon-shot  or  a  marine  league  (three  nautical 
or  four  statute  miles).  This  court,  after  very  able  argument  by 
learned  counsel,  and  after  much  deliberation,  has  held  that  the  term 
was  used  in  the  act  of  June  5,  1882,  in  the  same  sense  in  which  it  is 
employed  by  the  international  I'aw  writers.    Rich  v.  United  States. 

From  this  it  necessarily  follows  that  such  portions  of  the  waters  of 
Chesapeake  Bay  as  are  within  four  miles  of  either  shore  form  no  part 
of  the  high  seas.  But  much  of  the  bay  is  more  than  four  miles  from 
shore,  and  is  accessible  from  the  ocean  without  coming  within  that 
distance  of  the  land.  The  distance  between  Cape  Henry  and  Cape 
Charles,  at  the  entrance  of  the  bay,  is  said  to  be  twelve  miles,  and  it 
is  stated  that  lines  starting  from  points  between  the  Capes,  four  miles 
from  each  and  running  up  the  bay  that  distance  from  either  shore, 
would  not  intercept  each  other  within  125,  miles  from  the  starting 
points.  The  evidence  shows  that  the  Alleganean  was  anchored  be- 
tween such  lines  at  the  time  of  destruction.  Was  she  upon  the  high 
seas  as  the  court  defines  the  statutory  term? 

By  common  agreement  all  the  authorities  assert  that  there  are  arms 
or  inlets  of  the  ocean,  which  are  within  territorial  jurisdiction,  and  are 
not  high  seas.  Sir  R.  Phillimore  (1  Int.  Law,  §  200),  says:  "Besides 
the  rights  of  property  and  jurisdiction  within  the  limit  of  cannon-shot 
from  the  shore,  there  are  certain  portions  of  the  sea  which,  though 
they  exceed  this  verge,  may  under  special  circumstances  be  prescribed 
for.  Maritime  territorial  rights  extend,  as  a  general  rule,  over  arms 
of  the  sea,  bays,  gulfs,  estuaries,  which  are  inclosed,  but  not  entirely 
surrounded,  by  lands  belonging  to  one  and  the  same  state.  *  *  * 
Thus  Great  Britain  has  immemorially  claimed  and  exercised  exclusive 
property  and  jurisdiction  over  the  bays  or  portions  of  the  sea  cut  off 
by  lines  drawn  from  one  promontory  to  another,  and  called  the  King's 
Chambers."  Grotius  (bk.  11,  ch.  3,  §§  7,  8),  and  Vattel  (vol.  1,  bk. 
1,  ch.  23,  §  291)  assert  substantially  the  same  doctrine,  and  the  later 
writers  follow  them.    Wheat.  Int.  Law  (Dana's  8th  Ed.)  p.  255,  says: 

"The  maritime  territory  of  every  state  extends  to  the  ports,  harbors, 
bays,  mouths  of  rivers,  and  adjacent  parts  of  the  sea,  inclosed  by 
headlands,  belonging  to  the  same  state.  The  usage  of  nations  super- 
adds to  this  extent  of  territorial  jurisdiction  a  distance  of  a  marine 
league,  or  as  far  as  a  cannon-shot  will  reach  from  the  shore,  along  the 
coasts  of  the  state.  W^ithin  these  limits  its  right  of  property  and 
territorial  jurisdiction  are  absolute,  and  exclude  those  of  every  other 
nation."     Chancellor  Kent  avows  the  general  doctrine  and  makes  very 


234  RIGHTS   AND   DUTIES   OP   NATIONS   IN   TIME   OF   PEACE       (Part  1 

much  broader  claims  in  reference  to  the  jurisdiction  of  the  United 
States  over  adjacent  waters,  and  says  (Com.,  vol.  1,  pp.  29,  30) : 

"Considering  the  great  line  of  the  American  coasts,  we  have  a  right 
to  claim  for  fiscal  and  defensive  regulations  a  liberal  extension  of 
maritime  jurisdiction;  and  it  w^ould  not  be  unreasonable,  as  I  appre- 
hend, to  assume,  for  domestic  purposes  connected  with  our  safety  and 
welfare,  the  control  of  waters  on  our  coasts,  though  included  within 
lands  stretching  from  quite  distant  headlands,  as,  for  instance,  from 
Cape  Ann  to  Cape  Cod,  and  from  Nantucket  to  Montauk  Point,  and 
from  that  point  to  the  Capes  of  the  Delaware,  and  from  the  South 
Cape  of  Florida  to  the  Mississippi." 

Dr.  Woolsey  (Int.  Law,  §  60)  upholds  the  general  doctrine,  but 
thinks  the  claims  of  Chancellor  Kent  are  too  broad,  and  rather  "out  of 
character  for  a  nation  that  has  ever  asserted  the  freedom  of  doubtful 
waters,  as  well  as  contrary  to  the  spirit  of  more  recent  times." 

Dr.  Wharton  (Int.  Law,  §  192)  finishes  the  subject  with  the  con- 
clusion: "That  it  would  seem  more  proper  to  adopt  the  test  of 
cannon-shot,  *  *  *  which  would,  in  case  of  waters  whose  head- 
lands belong  to  the  same  sovereign,  exclude  all  bays  more  than  eight- 
een miles  in  diameter,  assuming  the  range  of  cannon-shot  to  be  nine 
miles.  But  this  should  be  made  to  yield  to  usage.  If  a  particular 
nation  has  exercised  dominion  over  a  bay,  and  this  has  been  acquiesc- 
ed in  by  other  nations,  then  the  bay  is  to  be  regarded  as  belonging  to 
such  nation." 

We  are  quite  certain  that  none  of  the  American  courts  have  passed 
upon  this  subject,  although  decisions  holding  that  specified  waters  are 
within  or  without  the  jurisdiction  of  the  admiralty  courts  are  numer- 
ous. The  question  has,  however,  been  before  the  English  courts  upon 
two  occasions  at  least. 

Reg.  V.  Cunningham,  Bell,  Crown  Cas.  72,  was  the  case  of  a  crime 
committed  upon  an  American  vessel  lying  in  the  Bristol  Channel, 
about  three-quarters  of  a  mile  off  the  shores  of  the  county  of  Glamor- 
gan, in  Wales,  but  below  or  exterior  to  low-water  mark,  and  perhaps 
ten  miles  from  the  shores  of  the  county  of  Somerset,  in  England. 
The  prisoners  were  indicted  and  tried  in  Glamorgan.  The  question 
was  whether  the  crime  was  committed  within  the  county  of  Glamorgan 
or  upon  the  high  seas.  It  was  held  that  it  was  within  the  county. 
This  crime  was  committed,  it  is  true,  within  the  marine  league  from 
shore,  but  the  court  did  not  rest  its  conclusion  upon  that  ground. 
Lord  Chief  Justice  Cockbum,  delivering  the  opinion  of  the  court,  said : 

"Looking  at  the  local  situation  of  this  sea,  it  must  be  taken  to 
belong  to  the  counties,  respectively,  by  the  shores  of  which  it  is 
bounded.  *  *  *  'p^g  whole  of  this  inland  sea,  between  the  coun- 
ties of  Somerset  and  Glamorgan,  is  to  be  considered  as  within  the 
counties  by  the  shores  of  which  its  several  ports  are  respectively 
bounded." 


Ch.  3)  .  TERRITORY  OF   STATES  235 

But  perhaps  the  most  thoroughly  considered  and  important  case  is 
that  of  Direct  U.  S.  Cable  Co.  v.  Anglo-American  Tel.  Co.  (in  the 
House  of  Lords)  2  App.  Cas.  349.  It  came  up  on  an  appeal  from  the 
Supreme  Court  of  Newfoundland,  against  an  order  confirming  an 
injunction  preventing  the  Direct  Cable  Company  from  landing  their 
wire  upon  the  soil  of  Newfoundland,  on  the  ground  that  it  would  be 
an  infringement  of  the  rights  of  the  Anglo-American  Company.  The 
cable,  as  a  matter  of  fact,  was  buoyed  in  Conception  Bay,  more  than 
a  marine  league  from  shore,  and  it  nowhere  came  within  that  distance 
from  the  shore,  purposely  to  avoid  coming  within  territorial  jurisdic- 
tion. But  it  was  asserted  that  the  whole  of  Conception  Bay  was 
within  the  territory  and  jurisdiction  of  Newfoundland.  The  Supreme 
Court  of  the  province  so  held,  and  the  determination  was  upheld  by 
the  House  of  Lords  in  a  somewhat  elaborate  opinion. 

This  opinion  states  that  Conception  Bay  is  a  body  of  water  having 
an  average  width  of  fifteen  miles,  a  distance  of  forty  miles  from  the 
head  to  one  of  the  capes  at  the  entrance,  and  fifty  miles  to  the  other, 
and  a  distance  of  twenty  miles  between  the  headlands.  Coming  to  the 
question,  the  Lords  say  (page  419) : 

"We  find  an  universal  agreement  that  harbors,  estuaries,  and  bays 
landlocked,  belong  to  the  territory  of  the  nation  wjiich  possesses  the 
shores  round  them,  but  no  agreement  as  to  what  is  the  rule  to  deter- 
mine what  is  *a  bay'  for  this  purpose. 

"It  seems  generally  agreed  that  where  the  configuration  and  dimen- 
sions of  the  bay  are  such  as  to  show  that  the  nation  occupying  the 
adjoining  coasts  also  occupies  the  bay,  it  is  part  of  the  territory,  and 
with  this  idea,  most  of  the  writers  on  the  subject  refer  to  defensi- 
bility  from  the  shore  as  the  test  of  occupation;  some  suggesting,  there- 
fore, a  width  of  one  cannon-shot  from  shore  to  shore,  or  three  miles ; 
some  a  cannon-shot  from  each  shore,  or  six  miles ;  some  an  arbitrary 
distance  of  ten  miles.  All  of  these  are  rules  which,  if  adopted,  would 
exclude  Conception  Bay  from  the  territory  of  Newfoundland,  but 
also  would  have  excluded  from  the  territory  of  Great  Britain  that 
part  of  the  Bristol  Channel  which  in  Reg.  v.  Cunningham  was  decided 
to  be  in  the  county  of  Glamorgan.  It  does  not  appear  to  their  lord- 
ships that  jurists  and  text- writers  are  agreed  what  are  the  rules  as  to 
dimensions  and  configuration,  which,  apart  from  other  considerations, 
would  lead  to  the  conclusion  that  a  bay  is  or  is  not  a  part  of  the 
territory  of  the  state  possessing  the  adjoining  coasts;  and  it  has  never, 
that  they  can  find,  been  made  the  ground  of  any  judicial  determination. 
If  it  were  necessary  in  this  case  to  lay  down  a  rule  the  difficulty  of 
the  task  would  not  deter  their  lordships  from  attempting  to  fulfill  it. 
But  in  their  opinion  it  is  not  necessary.  It  seems  to  them  that,  in 
point  of  fact,  the  British  government  has  for  a  long  period  exercised 
dominion  over  this  bay,  and  that  their  claim  has  been  acquiesced  in  by 
other  nations.     *     *     *     This  would  be  very  strong  in  the  tribunals 


236  RIGHTS   AND   DUTIES   OF  NATIONS   IN  TIME  OF  PEACE       (Part  1 

of  any  country  to  show  that  by  prescription  this  bay  is  a  part  of  the  ex- 
clusive territory  of  Great  Britain.    In  a  British  tribunal  it  is  decisive." 

We  must  now  examine  the  local  circumstance,  touching  the  status  of 
Chesapeake  Bay,  and  then  determine  whether  those  waters  should  be 
held  to  be  the  open  ocean  or  jurisdictional  waters  of  the  United  States 
in  the  light  of  these  authorities. 

The  headlands  are  about  twelve  miles  apart,  and  the  bay  is  probably 
nowhere  more  than  twenty  miles  in  width.  The  length  may  be  two 
hundred  miles.  To  call  it  a  bay  is  almost  a  misnomer.  It  is  more  a 
mighty  river  than  an  arm  or  inlet  of  the  ocean.  It  is  entirely  "encom- 
passed about  by  our  own  territory,  and  all  of  its  numerous' branches 
and  feeders  have  their  rise  and  their  progress  wholly  in  and  through 
our  own  soil.  It  cannot  become  an  international  commercial  highway ; 
it  is  not  and  cannot  be  made  a  roadway  from  one  nation  to  anoth-" 

f^t'  't^         'H         ^ 

The  legislation  of  Congress  has  assumed  Chesapeake  Bay  to  be 
within  the  territorial  limits  of  the  United  States.     *     *     * 

The  position  taken  by  this  government  and  by  England  and  France 
in  the  matter  of  the  British  brig  Grange,  captured  in  Delaware  Bay 
in  1793  by  the  French  vessel  [privateer]  I'Embuscade  (1  Am.  State 
Papers,  147,  149),  has,  it  seems  to  us,  an  important  bearing  upon  the 
question  under  discussion.  The  brig  was  seized  and  the  crew  made 
prisoners,  the  two  foreign  governments  being  at  war.  The  British 
government  must  have  demanded  that  the  United  States  compel 
France  to  release  the  captured  vessel  on  the  ground  that  the  seizure 
was  unlawful  as  having  been  made  in  our  territorial  and  neutral  wa- 
ters. The  State  Papers  do  not  show  this  demand,  but  it  is  not  mate- 
rial. The  opinion  of  the  Attorney  General  was  asked,  and  was  given 
somewhat  elaborately  by  Mr.  Randolph.  1  Op.  Attys.  Gen.  32.  It 
quotes  the  text-writers,  and  concludes  that  the  whole  of  Delaware 
Bay  is  within  the  territorial  jurisdiction  of  the  United  States,  regard- 
less of  the  marine  league  or  cannon-shot  limit  from  the  shore.  The 
learned  Attorney  General  says:  "In  like  manner  is  excluded  every 
consideration  of  how  far  the  spot  of  seizure  was  capable  of  being  de- 
fended by  the  United  States  ;  for  although  it  will  not  be  conceded  that 
this  could  not  be  done,  yet  will  it  rather  appear  that  the  mutual  rights 
of  the  states  of  New  Jersey  and  Delaware  up  to  the  middle  of  the 
river  supersede  the  necessity  of  such  an  investigation.  No.  The 
corner-stone  of  our  claim  is  that  the  United  States  are  proprietors  of 
the  lands  on  both  sides  of  the  Delaware  from  its  head  to  its  entrance 
into  the  sea." 

Acting  upon  the  opinion  of  the  Attorney  General,  the  Secretary  of 
State,  Mr.  Jefferson,  demanded  that  France  should  make  restitution  of 
the  Grange,  and  set  the  prisoners  taken  upon  her  at  liberty,  which 
demand  was  promptly  and  cheerfully  complied  with  by  the  French 
government. 


Ch.  3)  TERRITORY  OF   STATES  237 

If  it  be  said  that  the  mere  claims  of  a  nation  to  jurisdiction  over 
adjacent  waters  are  to  be  accepted  with  some  degree  of  hesitation, 
then  the  action  in  reference  to  the  Grange  is  of  much  weight,  for 
there  the  claim  made  by  the  United  States  was  promptly  acquiesced  in 
by  two  great  foreign  powers,  when  passions  were  excited,  and  when 
such  acquiescence  was  greatly  against  the  immediate  interest  of  one  of 
the  combatants,  as  well  as  against  the  general  interest  of  both. 

It  will  hardly  be  said  that  Delaware  Bay  is  any  the  less  an  inland 
sea  than  Chesapeake  Bay.  Its  configuration  is  not  such  as  to  make  it 
so,  and  the  distance  from  Cape  May  to  Cape  Henlopen  is  apparently 
as  great  as  that  between  Cape  Henry  and  Cape  Charles. 

Reflection  upon  the  subject  has  caused  the  court  to  consider  this 
question  of  very  considerable  national  importance.  Contingencies 
might  arise  which  would  make  it  of  very  grave  import.  The  "high 
sea"  belongs  to  all  alike.  It  is  the  great  highway  of  nations.  One 
cannot  lawfully  do  anything  upon  it  which  any  other  has  not  the  right 
to  do.  One  cannot  exercise  sovereignty  over  it.  Can  an  American 
court  concede  as  much  as  to  Chesapeake  Bay  ?  Other  nations,  by  com- 
mon consent  of  all,  have  well-recognized  peaceable  rights  even  in  our 
territorial  waters.  Ought  we  to  admit  that  they  have  any  rights  hos- 
tile to  the  United  States,  or  can  we  permit  belligerent  operations  be- 
tween foreign  nations  within  the  shores  of  this  bay?  What  injustice 
can  be  done  to  any  other  nation  by  the  United  States  exercising  sover- 
eign control  over  these  waters?  What  annoyance  and  what  injury 
may  not  come  to  the  United  States  through  a  failure  to  do  so? 

Considering  therefore  the  importance  of  the  question,  the  configura- 
tion of  Chesapeake  Bay,  the  fact  that  its  headlands  are  well  marked, 
and  but  twelve  miles  apart ;  that  it  and  its  tributaries  are  wholly  with- 
in our  own  territory;  that  the  boundar}^  lines  of  adjacent  states  en- 
compass it;  that  from  the  earliest  history  of  the  country  it  has  been 
claimed  to  be  territorial  waters,  and  that  the  claim  has  never  been 
questioned;  that  it  cannot  become  the  pathway  from  one  nation  to 
another,  and  remembering  the  doctrines  of  the  recognized  authorities 
upon' international  law,  as  well  as  the  holdings  of  the  English  courts 
as  to  the  Bristol  Channel  and  Conception  Bay,  and  bearing  in  mind  the 
matter  of  the  brig  Grange  and  the  position  taken  by  the  government 
as  to  Delaware  Bay,  we  are  forced  to  the  conclusion  that  Chesapeake 
Bay  must  be  held  to  be  wholly  within  the  territorial  jurisdiction  and 
authority  of  the  government  of  the  United  States,  and  no  -part  of  the 
"high  seas"  within  the  meaning  of  the  term  as  used  in  section  5  of 
the  act  of  June  5,'  1872.     *     *     * 

Judgment  will  be  entered  for  the  United  States. 

All  concur.^^ 

2T  In  the  case  of  Dunham  v.  Lamphere,  3  Gray.  2G8  (1855)  before  the  Su- 
preme Judicial  Court  of  Massachusetts,  Shaw,  C.  J.,  said:  "We  suppose  the 
rule  to  be  that  these  limits  extend  a  marine  league,  or  three  geographical 
miles,  from  the  shore;  and  in  ascertaining  the  line  of  shore  this  limit  does 
not  follow  each  narrow  inlet  or  arm  of  the  sea,  but  when  the  inlet  is  so  nar. 


238  RIGHTS  AND   DUTIES   OF   NATIONS   IN  TIME   OF   PEACE       (Part  1 


UNITED  STATES  v.  GREAT  BRITAIN. 

Award  of  ths  Tribunal  of  Arbitration  in  the  Question  Relat- 
ing TO  THE  North  Atlantic  Coast  Fisheries,  The 
Hague,  September  7,  1910. 

(Final  Report  of  the  Agent  of  the  United  States,  1912.    Vol.  1,  p.  64.) 

Preamble :  Whereas,  a  special  agreement  between  the  United  States 
of  America  and  Great  Britain,  signed  at  Washington  the  27th  Janu- 
ary, 1909,  and  confirmed  by  interchange  of  notes  dated  the  4th  March, 
1909,  was  concluded  in  conformity  with  the  provisions  of  the  general 
arbitration  treaty  between  the  United  States  of  America  and  Great 
Britain,  signed  the  4th  April,  1908,  and  ratified  the  4th  June,  1908 ; 

And  whereas,  the  said  special  agreement  for  the  submission  of 
questions  relating  to  fisheries  on  the  North  Atlantic  coast  under  the 
general  treaty  of  arbitration  concluded  between  the  United  States  and 
Great  Britain  on  the  4th  day  of  April,  1908,  is  as  follows : 

Article  1.  Whereas,  by  article  1  of  the  convention  signed  at  London 
on  the  20th  day  of  October,  1818,  between  Great  Britain  and  the 
United  States,  it  was  agreed  as  follows :  ' 

[For  the  material  portion  of  the  text  of  this  article,  see  The  Schooner 
Washington,  ante,  p.  229.] 

"And  whereas,  differences  have  arisen  as  to  the  scope  and  mean- 
ing of  the  said  article,  and  of  the  liberties  therein  referred  to,  and 
otherwise  in  respect  of  the  rights  and  liberties  which  the  inhabitants 
of  the  United  States  have  or  claim  to  have  in  the  waters  or  on  the 
shores  therein  referred  to: 

"It  is  agreed  that  the  following  questions  shall  be  submitted  for 
decision  to  a  tribunal  of  arbitration  constituted  as  hereinafter  pro- 
vided ;     *     *     * 

row  that  persons  and  objects  can  be  discerned  across  It  by  the  naked  eye, 
the  line  of  territorial  jurisdiction  stretches  across  from  one  headland  to  the 
other  of  such  inlet." 

In  Manchester  v.  Massachusetts,  139  U.  S.  240,  11  Sup.  Ct.  559,  35 
L.  Ed.  159  (1890),  the  court  held,  after  an  elaborate  survey  of  English  and 
American  authorities,  that  the  jurisdiction  of  Massachusetts  included  the 
marine  belt  surrounding  it;  that  Buzzard's  Bay,  falling  within  the  principle 
of  Dunham  v.  Lamphere,  should  be  and  is  governed  by  it,  thereby  making 
Buzzard's  Bay  for  jurisdictional  purposes  part  of  Massachusetts;  that,  such 
bay  being  within  Massachusetts,  that  commonwealth  rightfully  exercises  all 
rights  of  ownership  and  possession,  including  fishing  rights  and  privileges, 
therein ;  that  in  the  absence  of  affirmative  legislation  on  the  part  of  Congress, 
vesting  the  regulation  of  fishing  in  such  bays,  state  regulations,  as  in  cases 
of  pilot  legislation,  must  remain  with  the  state'.  Such  bays  therefore  are  not 
high  seas  in  the  sense  of  international  law,  and  the  apportionment  of  juris- 
diction over  such  bodies  of  water  between  the  respective  states  and  the  United 
States  is  a  matter  of  municipal,  not  of  international,  law. 

Shively  v.  Bowlby,  152  U.  S.  1,  14  Sup.  Ct.  548,  38  L.  Ed.  331  (1893),  is  a 
remarkable  case — unfortunately  too  long  to  print — in  which  the  origin,  nature, 
and  extent  of  jurisdiction  of  the  United  States  and  the  states  over  navigable 
waters  are  carefully  and  exhaustively  discussed.  As  it  is  in  large  part  a 
digest  case,  no  short  note  of  it  can  well  be  given. 


Ch.  3)  TERRITORY  OF   STATES  239 

"Question  5.  From  where  must  be  measured  the  'three  maririe  miles 
of  any  of  the  coasts,  bays,  creeks,  or  harbors'  referred  to  in  the  said 
article  ?***», 

And  whereas,  the  parties  to  the  said  agreement  have  by  common 
accord,  in  accordance  with  article  5,  constituted  as  a  tribunal  of 
arbitration  the  following-  members  of  the  Permanent  Court  at  The 
Hague :  Mr.  H.  Lammasch,  Doctor  of  Law,  professor  of  the  Univer- 
sity of  Vienna,  *Aulic  Councilor,  member  of  the  Upper  House  of  the 
Austrian  Parliament;  his  Excellency  Jonkheer  A.  F.  de  Savornin 
Lohman,  Doctor  of  Law,  Minister  of  State,  former  Minister  of  the 
Interior,  member  of  the  Second  Chamber  of  the  Netherlands;  the 
Honorable  George  Gray,  Doctor  of  Laws,  Judge  of  the  United  States 
Circuit  Court  of  Appeals,  former  United  States  Senator;  the  Right 
Honorable  Sir  Charles  Fitzpatrick,  member  of  the  Privy  Council, 
Doctor  of  Laws,  Chief  Justice  of  Canada ;  the  Honorable  Luis  Maria 
Drago,  Doctor  of  Law,  former  Minister  of  Foreign  Aflfairs  of  the 
Argentine  Republic,  member  of  the  Law  Academy  of  Buenos  Aires ; 
And  whereas,  the  agents  of  the  parties  to  the  said  agreement  have 
duly  and  in  accordance  with  the  terms  of  the  agreement  communicated 
to  this  tribunal  their  cases,  counter-cases,  printed  arguments,  and  other 
documents ; 

And  whereas,  counsel  for  the  parties  have  fully  presented  to  this 
tribunal  their  oral  arguments  in  the  sittings  held  between  the  first 
assembling  of  the  tribunal  on  1st  June,  1910,  to  the  close  of  the  hear- 
ings on  12th  August,  1910; 

Now,  therefore,  this  tribunal  having  carefully  considered  the  said 
agreement,  cases,  counter-cases,  printed  and  oral  arguments,  and  the 
documents  presented  by  either  side,  after  due  deliberation  makes  the 
following  decisions  and  awards ;     *     *     * 

Question  5.  FroHUwhere  mustjejiieasured  the  "three  marine  miles 
of  any  of  the  coasts^  bays,  creeks,  or  harbors"  referred  to  in  the  said 
article?  ~^ 

In  regard  to  this  question.  Great  Britain  claims  that  the  renun- 
ciation applies  to  all  bays  generally  and 

The  United  States  contend  that  it  applies  to  bays  of  a  certain  class 
or  condition. 

Now,   considering   that   the   treaty  used   the  general  term   "bays^ 
without  qualification,  the  tribunal  is  of  opinion  that  these  worHsoF 
the  treaty  must  be  interpreted  in  a  general  sense  as  applying  to  every 
bay  on  the  coast  in  question  that  might  be  reasonably  supposed  to  have 
Been  considered  as  a  bay  by  the  negotiators  of  the  treaty  under  the 
general  conditions  then  prevailing,  unless  the  United  States  can  adduce 
satisfactory  proof  that  any  restrictiorts  or  qualifications  of  the  general 
use  of  the  term  were  or  should  have  been  present  to  their  minds. 
And  for  the  purpose  of  such  proof  the  United  States  contend:  *  *  * 
Second.     That  by  the  use  of  the  term  "liberty  to  fish"  the  United 
States  manifested  the  intention  to  renounce  the  liberty  in  the  waters 


240  RIGHTS  AND   DUTIES  OP  NATIONS  IN  TIME  OF   PEACE       (Part  1 

referred  to  only  in  so  far  as  that  liberty  was  dependent  upon  or  derived 
from  a  concession  on  the  part  of  Great  Britain,  and  not  to  renounce  the 
right  to  fish  in  those  waters  where  it  was  enjoyed  by  virtue  of  their 
natural  right  as  an  independent  state. 

But  the  tribunal  is  unable  to  agree  with  this  contention: 

(a)  Because  the  term  "liberty  to  fish"  was  used  in  the  renunciatory 
clause  of  the  treaty  of  1818  because  the  same  term  had  been  previous- 
ly used  in  the  treaty  of  1783  which  gave  the  liberty;  and  it  was  proper 
to  use  in  the  renunciation  clause  the  same  term  that  was  used  in  the 
grant  with  respect  to  the  object  of  the  grant;  and  in  view  of  the  terms 
of  the  grant,  it  would  have  been  improper  to  use  the  term  "right"  in 
the  renunciation.  Therefore  the  conclusion  drawn  from  the  use  of  the 
term  "liberty"  instead  of  the  term  "right"  is  not  justified; 

(b)  Because  the  term  "liberty"  was  a  term  properly  applicable  to 
the  renunciation  which  referred  not  only  to  fishing  in  the  territori- 
al waters  but  also  to  drying  and  curing  on  the  shore.  This  latter 
right  was  undoubtedly  held  under  the  provisions  of  the  treaty  and 
was  not  a  right  accruing  to  the  United  States  by  virtue  of  any  prin- 
ciple of  international  law. 

Third.  The  United  States  also  contend  that  the  term  "bays  of  His 
Britannic  Majesty's  dominions"  in  the  renunciatory  clause  must  be 
read  as  including  only  those  bays  which  were  under  the  territorial 
sovereignty  of  Great  Britain. 

But  the  tribunal  is  unable  to  accept  this  contention : 

(a)  Because  the  description  of  the  coast  on  which  the  fishery  is 
to  be  exercised  by  the  inhabitants  of  the  United  States  is  expressed 
throughout  the  treaty  of  1818  in  geographical  terms  and  not  by  ref- 
erence to  political  control;  the  treaty  describes  the  coast  as  contained 
between  capes ; 

(b)  Because  to  express  the  political  concept  of  dominion  as  equiva- 
lent to  sovereignty,  the  word  "dominion"  in  the  singular  would  have 
been  an  adequate  term  and  not  "dominions"  in  the  plural ;  this  latter 
term  having  a  recognized  and  well-settled  meaning  as  descriptive  of 
those  portions  of  the  earth  which  owe  political  allegiance  to  His  Majes- 
ty;  e.  g.,  "His  Britannic  Majesty's  dominions  beyond  the  seas." 

*  Fourth.  It  has  been  further  contended  by  the  United  States  that 
the  renunciation  applies  only  to  bays  six  miles  or  less  in  width  inter 
fauces  terrae,  those  bays  only  being  territorial  bays,  because  the  three- 
mile  rule  is,  as  shown  by  this  treaty,  a  principle  of  international  law 
applicable  to  coasts  and  should  be  strictly  and  systematically  applied  to 
bays. 

But  the  tribunal  is  unable  to  agree  with  this  contention: 
(a)  Because  admittedly  the  geographical  character  of  a  bay  con- 
tains conditions  which  concern  the  interests  of  the  territorial  sovereign 
to  a  more  intimate  and  important  extent  than  do  those  connected  with 
the  open  coast.     Thus  conditions  of  national  and  territorial  integrity, 


Ch.  3)  TERfaTORY  OF   STATES  241 

of  defense,  of  commerce  and  of  industry  are  all  vitally  concerned 
with  the  control  of  the  bays  penetrating  the  national  coast  Hne.  This 
interest  varies,  speaking  generally  in  proportion  to  the  penetration 
inland  of  the  bay ;  but  as  no  principle  of  international  law  recognizes 
any  specified  relation  between  the  concavity  of  the  bay  and  the  re- 
quirements for  control  by  the  territorial  sovereignty,  this  tribunal  is 
unable  to  qualify  by  the  application  of  any  new  principle  its  inter- 
pretation of  the  treaty  of  1818  as  excluding  bays  in  general  from  the 
strict  and  systematic  application  of  the  three-mile  rule;  nor  can  this 
tribunal  take  cognizance  in  this  connection  of  other  principles  con- 
cerning the  territorial  sovereignty  over  bays  such  as  ten-mile  or 
twelve-mile  limits  of  exclusion  based  on  international  acts  subsequent 
to  the  treaty  of  1818  and  relating  to  coasts  of  a  different  configuration 
and  conditions  of  a  different  character ; 

(b)  Because  the  opinion  of  jurists  and  publicists  quoted  in  the 
proceedings  conduce  to  the  opinion  that  speaking  generally  the  three- 
mile  rule  should  not  be  strictly  and  systematically  applied  to  bays ;  *  *  * 

(f)  IBecause  from  the  information  before  this  tribunal  it  is  evident 
that  the  three-mile  rule  is  not  applied  to  bays  strictly  or  systematically 
either  by  the  United  States  or  by  any  other  power ; 

(g)  It  has  been  recognized  by  the  United  States  that  bays  stand 
apart,  and  that  in  respect  of  them  territorial  jurisdiction  may  be  ex- 
ercised farther  than  the  marginal  belt  in  the  case  of  Delaware  Bay 
by  the  report  of  the  United  States  Attorney  General  of  May  19,  1793; 
and  the  letter  of  Mr.  Jefferson  to  Mr.  Genet  of  November  8,  1793, 
declares  the  bays  of  the  United  States  generally  to  be,  "as  being  land- 
locked, within  the  body  of  the  United  States." 

Fifth.  In  this  latter  regard  it  is  further  contended  by  the  United 
States,  that  such  exceptions  only  should  be  made  from  the  applica- 
tion of  the  three-mile  rule  to  bays  as  are  sanctioned  by  conventions 
and  established  usage ;  that  all  exceptions  for  which  the  United  States 
of  America  were  responsible  are  so  sanctioned;  and  that  His  Majes- 
ty's government  are  unable  to  provide  evidence  to  show  that  the  bays 
concerned  by  the  treaty  of  1818  could  be  claimed  as  exceptions  on  these 
grounds  either  generally,  or  except  possibly  in  one  or  two  cases,  spe- 
cifically. 

But  the  tribunal,  while  recognizing  that  conventions  and  estab- 
lished usage  might  be  considered  as  the  basis  for  claiming  as  terri- 
torial those  bays  which  on  this  ground  might  be  called  historic  bays, 
and  that  such  claims  should  be  held  valid  in  the  absence  of  any  prin- 
ciple of  international  law  on  the  subject;  nevertheless  is  unable  t,o  ap- 
ply this,  a  contrario,  so  as  to  subject  the  bays  in  question  to  the  three- 
mile  rule,  as  desired  by  the  United  States  : 

(a)  Because  Great  Britain  has  during  this  controversy  asserted  a 
claim  to  these  bays  generally,  and  has  enforced  such  claim  specific- 
ScoTT  Int. Law — 16 


242  EIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OP   PEACE       (Part  X 

ally  in  statutes  or  otherwise,  in  regard  to  the  more  important  bays 
such  as  Chaleurs,  Conception  and  Miramichi  j     *     *     * 

Sixth.  It  has  been  contended  by  the  United  States  that  the  words 
"coasts,  bays,  creeks  or  harbors"  are  here  used  only  to  express  different 
parts  of  the  coast  and  are  intended  to  express  and  be  equivalent  to 
the  word  "coast,"  whereby  the  three  marine  miles  would  be  measured 
from  the  sinuosities  of  the  coast  and  the  renunciation  would  apply 
only  to  the  waters  of  bays  within  three  miles. 

But  the  tribunal  is 'unable  to  agree  with  this  contention:     *     *     * 

(f)  Because  the  tribunal  is  unable  to  understand  the  term  "bays" 
in  the  renunciatory  clause  in  other  than  its  geographical  sense,  by  which 
a  bay  is_to  be  considered  as  an  indentation  of  the  coast,  bearing  a  con- 
figuration of  a  particular  character  easy  to  determine  specifically,  but 
difficult  to  describe  generally. 

The  negotiators  of  the  treaty  of  1818  did  probably  not  trouble 
themselves  with  subtle  theories  concerning  the  notion  of  "bays"  ; 
they  most  probably  thought  that  everybody  would  know  what  was 
a  bay.  In  this  popular  sense  the  term  must  be  interpreted  in  the  treaty. 
The  interpretation  must  take  into  account  all  the  individual  circum- 
stances which  for  any  one  of  the  different  bays  are  to  be  appreciated, 
the  relation  of  its  width  to  the  length  of  penetration  -inland,  the  pos- 
sibility and  the  necessity  of  its  being  defended  by  the  state  in  whose 
territory  it  is  indented ;  the  special  value  which  it  has  for  the  industry 
of  the  inhabitants  of  its  shores;  the  distance  which  it  is  secluded  from 
the  highways  of  nations  on  the  open  sea  and  other  circumstances  not 
possible  to  enumerate  in  general. 

For  these  reasons  the  tribunal  decides  and  awards : 

In  case  of  bays  the  three  marine  miles  are  to  be  measured  from  a 
straight  line  drawn  across  the  body  of  water  at  the  place  where  it  ceases 
to  have  the  configuration  and  characteristics  of  a  bay.  At  all  other 
places  the  three  marine  miles  are  to  be  measured  following  the  sinu- 
osities of  the  coast.     *     *     * 

It  is  understood  that  nothing  in  these  rules  refers  either  to  the 
Bay  of  Fundy  considered  as  a  whole  apart  from  its  bays  and  creeks 
or  as  to  the  innocent  passage  through  the  Gut  of  Canso,  which  were 
excluded  by  the  agreement  made  by  exchange  of  notes  between  Mr. 
Bacon  and  Mr.  Bryce  dated  February  21,  1909,  and  March  4,  1909; 
or  to  Conception  Bay,  which  was  provided  for  by  the  decision  of 
the  Privy  Council  in  the  case  of  the  Direct  United  States  Cable  Com- 
pany v.  The  Anglo  American  Telegraph  Company,  in  which  decision 
the  United  States  have  acquiesced, 

Scott  Int.Law 


Ch.  3)  TERRITORY  OF  STATES  243 


IV.  Marginal  Seas — Thre;k-Mile;  Limit 
THE  QUEEN  v.  KEYN. 

(Court  of  Crown  Cases  Reserved,  1876.    L.  R.  2  Exch.  Div.,  63.) 

Case  stated  by  Pollock,  B. 

Ferdinand  Keyn  was  tried  at  the  April  sittings  of  the  Central  Crimi- 
nal Court  for  the  manslaughter  of  Jessie  Dorcas  Young. 

On  the  part  of  the  prosecution  it  was  proved  that  Jessie  Dorcas 
Young  was  a  passenger  by  a  British  steamer  called  the  Strathclyde, 
from  Lon'doiTt'o'Bombay,  and  that  when  off  Dover  the  Strathclyde  was 
run  into  by  a  steamer  called  the  Franconia,  whilst  she  was  under  the 
command  and  immediate  direction  of  the  prisoner,  whereby  the_Stratb- 
clyde  was  sunk,  and  Jessie  Dorcas  Young  was  drowned. 

The  Franconia  was  a  Germanjyessel,  carrying  the  German  flag.  She 
sailed  from  Hamburg  with  the  prisoner,  who  is  a  German,  in  command, 
and  a  crew  of  seventy-three,  nearly  all  of  whom  were  Germans,  and  a 
French  pilot.  She  was  carrying  the  mail  from  Hamburg  to  St.  Thomas 
in  the  West  Indies,  and'put  inlo  Grimsby  to  take  on_board_  an  English 
pilot,  whose  duty  it  was  to  conduct  her  down  channel  as  far  as  the  South 
Sand  light,  after  which  she  would  proceed  to^  and  touch  at  Havre, 
where  she  would  land  the  English  pilot  and  the  French  pilot,  whose  duty 
it  was  to  conduct  her  from  off  Dungeness  to  Havre,  and  thence  go  to 
St.  Thomas. 

The  Franconia  had  performed  the  same  voyage  six  times. 

The  point  at  which  the  Strathclyde  was  run  down  by  the  Franconia 
was  one  mile  and  nine  tenths  of  a  mile  S.  S.  E.  from  Dover  pier-head, 
and  within  two  and  a  half  miles  from  Dover  beach. 

At  the  close  of  the  case  for  the  prosecution,  the  counsel  for  the  pris- 
oner objected  that  the  Court  had  no  jurisdiction.  The  learned  judge, 
without  expressing  any  opinion,  ruled  that  the  Court  had  jurisdiction. 

Witnesses  were  called  for  the  prisoner.    The  jury  found  him  guilty,     ic;  cnp 

The  question  for  the  opinion  for  the'Court  for  Crown  Cases  Reserved 
was  whether  the  Central  Criminal  Court  had  jurisdiction. 

May  6,  13.  The  case  was  argued  before  Kelly,  C.  B.,  Sir  R.  Philli- 
more.  Lush,  Field,  and  Lindley,  JJ.,  and  Pollock,  B.,  by  Benjamin,  Q. 
C.  (Cohen,  Q.  C,  Phillimore,  and  Stubbs  with  him),  for  the  prisoner, 
and  by  Sir  H.  Giffard,  S.  G.  (Poland,  C.  Bowen,  and  Straight  with 
him),  for  the  prosecution. 

The  Court  being  divided,  the  case  was  directed  to  be  reargued. 

June  16,  17,  21,  22,  23.  The  case  was  again  argued  before  Cockburn, 
C.  J.,  Lord  Coleridge,  C.  J.,  Kelly,  C.  B.,  Sir  R.  Phillimore,  Bramwell, 
Pollock,  and  Amphlett,  BB.,  and  Lush,  Brett,  Grove,  Denman,  Archi- 
bald (1),  Field  and  Lindley,  JJ. 


244  RIGHTS  AND   DUTIES  OF  NATIONS   IN  TIME  OF  PEACE       (Part  I 

The  arguments  and  the  authorities  cited  sufficiently  appear  from  the 
judgments. 

Cur.  adv.  vult. 

Nov.  11,  13.    The  following  judgments  were  delivered:     *     *     * 

Lord  Coleridge,  C.  J.^*  I  have  had  the  advantage  of  reading  and 
considering  the  judgments  which  have  been  already  delivered,  and  that 
also  which  will  be  delivered  after  mine  by  the  head  of  this  Court. 
*  *  *  I  agree  in  thinking  it  clear  that  unless  the  place  where  the 
offense  was  committed  was  part  of  the  realm  of  England  locally,  or 
unless  the  offense  itself  was  committed  on  board  a  British  ship,  whether 
the  British  ship  was  locally  within  the  realm  of  England,  or  without  it, 
the  conviction  cannot  stand. 

But,  first,  I  think  the  offense  was  committed  within  the  realm  of_ 
England;  and  if  so,  there  was  jurisdiction  to  try  jt.  *  *  *  Now 
the  offense  was  committed  much  nearer  to  the  line  of  low-water 
mark  than  three  miles;  and  therefore,  in  my  opinion,  upon  Enghsh 
territory.  I  pass  by  for  the  moment  the  question  of  the  exact  limit  of 
the  realm  of  England  beyond  low-water  mark,  I  am  of  opinion  that  it 
does  go  beyond  low-water  mark;  and  if  it  does,  no  limit  has  ever  been 
suggested  which  would  exclude  from  the  realm  the  place  where  this 
offense  was  committed.  But  for  the  difference  of  opinion  upon  the 
Bench,  and  for  the  great  deference  which  is  due  to  those  who  differ 
from  me,  I  should  have  said  it  was  impossible  to  hold  that  England  end- 
ed with  low- water  mark.  I  do  not  of  course  forget  that  it  is  freely 
admitted  to  be  within  the  competency  of  Parliament  to  extend  the  realm 
how  far  soever  it  pleases  to  extend  it  by  enactments,  at  least  so  as  to 
bind  the  tribunals  of  the  country ;  and  I  admit  equally  freely  that  no 
statute  has  in  plain  terms,  or  by  definite  limits,  so  extended  it. 

But,  in  my  judgment,  no  Act  of  Parliament  was  required.  The  prop- 
osition contended  for,  as  I  understand,  is  that  for  any  act  of  violence 
committed  by  a  foreigner  upon  an  English  subject  within  a  few  feet  of 
low-water  mark,  unless  it  happens  on  board  a  British  ship,  the  foreign- 
er cannot  be  tried,  and  is  dispunishable.     *     *     * 

By  a  consensus  of  writers,  without  one  single  authority  to  the 
contrary,  some  portion  of  the  coast-waters  of  a  country  is  considered 
for  some  purposes  to  belong  to  the  country  the  coast  of  which  they 
wash.  *  *  *  This  is  established  as  solidly,  as,  by  the  very  nature 
of  the  case,  any  proposition  of  international  law  can  be.  Strictly  speak- 
ing, international  law  is  an  inexact  expression  and  it  is  apt  to  mislead 
if  its  inexactness  is  not  kept  in  mind.  Law  implies  a  law-giver,  and  a 
tribunal  capable  of  enforcing  it  and  coercing  its  transgressors.  But 
there  is  no  common  law-giver  to  sovereign  states  and  no  tribunal 
has   the   power   to   bind   them   by   decrees   or   coerce   them   if   they 

28  Parts  of  the  opinion  of  Lord  Chief  Justice  Coleridge  and  the  opinions  of 
!  Brett  and  Amphlett,  J.  A.,  Grove,  Deuman,  and  Lindley,  JJ.,  to  the  same  ef- 
\iect  as  the  opinion  of  Lord  Chief  Justice  Coleridge,  are  omitted. 


^Ch.  3)  TERRITORY   OP   STATES  245 

transgress.  The  law  of  nations  is  that  collection  of  usages  which  civil- 
ized states  have  agreed  to  observe  in  their  dealings  with  one  another. 
What  these  usages  are,  whether  a  particular  one  has  or  has  not  been 
agreed  to,  must  be  matter  of  evidence.  Treaties  and  acts  of  state  are  but 
evidence  of  the  agreement  of  nations,  and  do  not  in  this  country  at  least 
per  se  bind  the  tribunals.  Neither,  certainly  does  a  consensus  of  jurists ; 
but  it  is  evidence  of  the  agreement  of  nations  on  international  points ; 
and  on  such  points,  when  they  arise,  the  English  courts  give  effect,  as 
part  of  English  law,  to  such  agreement.     *     *     * 

We  find  a  number  of  men  of  education,  of  many  different  nations, 
most  of  them  quite  uninterested  in  maintaining  any  particular  thesis  as 
to  the  matter  now  in  question,  agreeing  generally  for  nearly  three  cen- 
turies in  the  proposition  that  the  territory  of  a  maritime  country  ex- 
tends beyond  low-water  mark.  I  can  hardly  myself  conceive  stronger 
evidence  to  show  that,  as  far  as  it  depends  on  the  agreement  of  nations, 
the  territory  of  maritime  countries  does  so  extend.  *  *  *  if  the 
matter  were  to  be  determined  for  the  first  time,  I  should  not  hesi- 
tate to  hold  that  civilized  nations  had  agreed  to  this  prolongation 
of  the  territory  of  maritime  states,  upon  the  authority  of  the  writers 
who  have  been  cited  in  this  argument  as  laying  down  the  affirmative 
of  this  proposition.     *     *     * 

Furthermore,  it  has  been  shown  that  English  judges  have  held  re- 
peatedly that  these  coast-waters  are  portions  of  the  realm.  It  is  true 
that  this  particular  point  does  not  seem  ever  distinctly  to  have  arisen. 
But  Lord  Coke,  Lord  Stowell,  Dr.  Lushington,  Lord  Hatherley,  L.  C, 
Erie,  C.  J.,  and  Lord  Wensleydale  (and  the  catalogue  might  be  largely 
extended)  have  all,  not  hastily,  but  in  writing,  in  prepared  and  deliber- 
ate judgments,  as  part  of  the  reasoning  necessary  to  support  their  con- 
clusions, used  language,  some  of  them  repeatedly,  which  I  am  unable 
to  construe,  except  as  asserting,  on  the  part  of  these  eminent  persons, 
that  the  realm  of  England,  the  territory  of  England,  the  property  of 
the  state  and  Crown  of  England  over  the  water  and  the  land  beneath 
it,  extends  at  least  so  far  beyond  the  line  of  low  water  on  the  Enghsh 
coast,  as  to  include  the  place  where  this  offense  was  committed.  *  *  * 
The  English  and  American  text  writers,  and  two  at  least  of  the  most 
eminent  American  judges,  Marshall  and  Story,  have  held  the  same 
thing. 

Further — at  least  in  one  remarkable  instance — the  British  Parlia- 
ment has  declared  and  enacted  this  to  be  the  law.  In  the  present  reign 
two  questions  arose  between  Her  Majesty  and  the  Prince  of  Wales  as 
to  the  property  in  minerals  below  high-water  mark  around  the  coast 
of  Cornwall.  The  first  question  was  as  to  the  property  in  minerals  be- 
tween high-  and  low-water  mark  around  the  coasts  of  that  country ;  and 
as  to  the  property  in  minerals  below  low-water  mark  won  by  an  exten- 
sion of  workings  begun  above  low-water  mark.  *  *  *  f  hg  whole 
argument  on  the  part  of  the  Crown  was  founded  on  the  proposition 


246  RIGHTS  AND   DUTIES  OF  NATIONS   IN  TIME  OF  PEACE       (Part  I 

that  the  fundus  maris  below  low-water  mark,  and  therefore  beyond 
the  limits  of  the  county  of  Cornwall,  belonged  in  property  to  the 
Crown,  The  Prince  was  in  possession  of  the  disputed  mines ;  he  had 
worked  them  from  land  undoubtedly  his  own;  and,  therefore,  unless 
the  Crown  had  a  right  of  property  in  the  bed  of  the  sea,  not  as  first 
occupier — for  the  Prince  was  first  occupier,  and  was  in  occupation 
— the  Crown  must  have  failed.  *  *  *  gjj.  John  Patterson 
*  *  *  thus  expressed  himself :  "I  am  of  opinion,  and  so  decide, 
that  the  right  to  the  minerals  below  low-water  mark  remains  and  is 
vested  in  the  Crov/n,  although  those  minerals  may  be  won  by  workings 
commenced  above  low-water  mark  and  extended  below  it,"  and  he 
recommended  the  passing  of  an  Act  of  Parliament  to  give  practical 
effect  to  his  decision,  so  far  as  it  was  in  favor  of  the  Crown.  The  Act 
of  Parliament  accordingly  was  passed,  the  21  and  22  Vict.  c.  109.  *  *  * 

We  have  therefore,  it  seems,  the  express  and  definite  authority  of 
Parliament  for  the  proposition  that  the  realm  does  not  end  with  low- 
water  mark,  but  that  the  open  sea  and  the  bed  of  it  are  part  of  the 
realm  and  of  the  territory  of  the  sovereign.  If  so,  it  follows  that 
British  law  is  supreme  over  it,  and  that  the  law  must  be  administered 
by  some  tribunal.  It  cannot,  for  the  reasons  assigned  by  my  Brother 
Brett,  be  administered  by  the  judges  of  oyer  and  terminer;  it  can  be, 
and  always  could  be,  by  the  Admiralty^  and  if  by  the  Admiralty,  then 
by  the  Central  Criminal  Court.     *     *     * 

Lush,  J.^^  I  have  already  announced  that,  although  I  had  prepared 
a  separate  judgment,  I  did  not  feel  it  necessary  to  deliver  it,  because, 
having  since  perused  the  judgment  which  the  Lord  Chief  Justice  has 
just  read,  I  found  that  we  agreed  entirely  in  our  conclusions,  and  that 
I  agreed  in  the  main  with  the  reasons  upon  which  those  conclusions  are 
founded.  I  wish,  however,  to  guard  myself  from  being  supposed  to 
adopt  any  words  or  expressions  which  may  seem  to  imply  a  doubt  as 
to  the  competency  of  Parliament  to  legislate  as  it  may  think  fit  for 
these  waters.  I  think  that  usage  and  the  common  consent  of  nations, 
which  constitute  international  law,  have  appropriated  these  waters 
to  the  adjacent  State  to  deal  with  them  as  the  State  may  deem  expedient 
for  its  own  interests.  They  are,  therefore,  in  the  language  of  diplomacy 
and  of  international  law,  termed  by  a  convenient  metaphor  the  terri- 
torial waters  of  Great  Britain,  and  the  same  or  equivalent  phrases  are 
used  in  some  of  our  statutes  denoting  that  this  belt  of  sea  is  under  the 
exclusive  dominion  of  the  State.  But  the  dominion  is  the  dominion 
of  Parliament,  not  the  dominion  of  the  common  law.  That  extends  no 
further  than  the  limits  of  the  realm.  In  the  reign  of  Richard  II,  the 
realm  consisted  of  the  land  within  the  body  of  the  counties.  All  be- 
yond low-water  mark  was  part  of  the  high  seas.     At  that  period 

2  9  The  opinion  of  Cockburn,  C.  J.,  and  the  concurring  opinions  of  Kelly, 
C.  B.,  Bramwell,  J.  A.,  Field,  J.,  Sir  R.  Phillimore  and  Pollock,  B.,  are 
omitted. 


Ch.  3)  TERRITORY   OF    STATES  247 

the  three-mile  radius  had  not  been  thought  of.  International  law, 
which,  upon  this  subject  at  least,  has  grown  up  since  that  period^-' 
cannot  enlarge  the  area  of  our  municipal  law,  nor  could  treaties  with 
all  the  nations  of  the  world  have  that  effect.  That  can  only  be  done 
by  Act_of  Parliament.  As  no  such  act  has  Seen  passed,  i^  follows 
tEaTwhat  was  out  of  the  realm  then  is  out  of  the  realm  now,  and 
what  was  part  of  the  high  seas  then  is  part  of  the  high  seas  now; 
aM  upon  the  high  seas  the  Admiralty  jurisdiction  was  confined  to 
British  ships.  Therefore,  although,  as  between  nation  and  nation, 
these  waters  are  British  territory,  as  being  under  the  exclusive  domin- 
ion of  Great  Britain,  in  judicial  language  they  are  out  of  the  realm, 
and  any  exercise  of  criminal  jurisdiction  over  a  foreign  ship  in  these 
waters  must  in  my  judgment  be  authorized  by  an  Act  of  Parliament. 
Conviction  quashed.^" 

30  Tije  Franconia  was  really  decided,  as  pointed  out  by  W.  E.  Hall,  Interna- 
tional Law  (4th  Ed.  1895)  213,  note,  "upon  grounds  of  municipal  and  not  of 
international  law." 

In  consequence  of  this  decision  the  Territorial  Waters  Jurisdiction  Act 
of  1878  (41  and  42  Vict.  c.  73)  was  passed,  which  would  seem  to  adopt  the 
opinion  of  the  minority  judges.  The  preamble  to  this  important  stat- 
ute declares  that  "the  rightful  jurisdiction  of  her  majesty,  her  heirs  and 
successors  extends  and  has  always  extended  over  the  open  seas  adjacent  to 
the  coasts  of  the  United  Kingdom,  and  of  all  other  parts  of  her  majesty's 
dominions  to  such  a  distance  as  is  necessary  for  the  defence  and  secux-ity  of 
such  dominions,"  and  that  "it  is  expedient  that  all  offenses  committed  on  the 
open  sea  within  a  certain  distance  of  the  coasts  of  the  United  Kingdom  and  of 
all  other  parts  of  her  majesty's  dominions,  by  whomsoever  committed,  should 
be  dealt  with  according  to  law." 

For  the  proper  exercise  of  jurisdiction  in  such  cases  it  is  provided  by  the 
act  that, 

"An  offense  committed  by  a  person,  whether  he  is  or  is  not  a  subject  of  her 
majesty,  on  the  open  sea  within  the  territorial  waters  of  her  majesty's  do- 
minions, is  an  offense  within  the  jurisdiction  of  the  admiral,  although  it  may 
have  been  committed  on  board  or  by  means  of  a  foreign  ship,  and  the  person 
who  committed  such  o'ttense  may  be  arrested,  tried,  and  punished  accordingly." 

But  no  proceedings  under  this  act  are  to  be  instituted  against  a  foreigner, 
without  the  consent  and  certificate  of  a  secretary  of  state,  or  in  the  case  of  a 
colony,  the  certificate  of  the  governor, 

"  'The  territorial  waters  of  her  majesty's  dominions,'  in  reference  to  the  sea, 
means  such  part  of  the  sea  adjacent  to  the  coast  of  the  United  Kingdom,  or  the 
coast  of  some  other  part  of  her  majesty's  dominions,  as  is  deemed  by  inter- 
national law  to  be  within  the  territorial  sovereignty  of  her  majesty ;  and  for 
the  purpose  of  any  offense  declared  by  this  act  to  be  within  the  jurisdiction 
of  the  admiral,  any  part  of  the  open  sea  within  one  marine  league  of  the  coast 
measured  from  low-water  mark  shall  be  deemed  to  be  open  sea  within  the 
territorial  waters  of  her  majesty's  dominions." 

See  Mortensen  v.  Peters,  14  Scots  L.  T.  R.  227  (1906),  1  American 
Journal  of  International  Law,  526  (1907),  in  which  it  was  held,  according  to 
A.  Pearce  Higgins'  note  to  Hall's  International  Law  (7th  Ed.  1917)  160,  that: 
"An  alien  could  be  convicted  of  fishing  in  a  manner  contrary  to  52  &  53  Vict, 
c.  23,  §  6,  which  prohibits  beam  and  other  trawling  within  specified  areas,  one 
of  which  is  the  Moray  Firth ;  and  that  it  was  no  defence  that  the  act  had 
been  committed  beyond  the  three-mile  limit  though  within  the  limits  of  the 
Moray  Firth.  On  diplomatic  representations  being  made  to  the  Foreign 
Otfice,  the  fine  was  remitted.  The  Trawling  in  Prohibited  Areas  Prevention 
Act,  1909  (9  Ed.  VII,  c.  S),  to  some  extent  meets  the  difficulty  raised  in  the 
belore-meniioued  case.    Oppeuheim,  I,  §  192.    Cf.  \A'estlake,  Peace,  203." 


248  EIGHTS  AND   DUTIES  OF  NATIONS   IN  TIME   OF  PEAQB       (Part  1 

GREAT  BRITAIN  v.  UNITED  STATES. 
BEHRING  SEA  ARBITRATION. 

'Award  of  the  Tribunal  of  Arbitration  Constituted  under  the  Treaty  Con- 
cluded at  Washington,  February  29,  1892,  1893.  1  Malloy's  Treaties,  Con- 
ventions, International  Acts,  Protocols,  and  Agreements  between  the  Unit- 
ed States  and  Other  Powers,  1776-1909,  751.) 

Whereas,  by  a  Treaty  between  the  United  States  of  America  and 
Great  Britain,  signed  at  Washington,  February  29,  1892,  the  ratifica- 
tions  of  which  by  the  governments  of  the  two  countries  were  ex- 
changed at  London  on  May  7,  1892,  jt  was,  amongst  other  things, 
agreed  and  concluded  that  the  questions  which  had  arisen  between 
the  government  of  the  United  States  of  America  and  the  government 
of  Her  Britannic  Majesty,  concerning  the  jurisdictional  rights  of  the 
United  States  in  the  waters  of  Behring's  Sea,  and  concerning  also  the 
preservation  of  the  fur-seal  in  or  habitually  resorting  to  the  said  sea, 
and  the  rights  of  the  citizens  and  subjects  of  either  country  as  re- 
gards the  taking  of  fur-seals  in  or  habitually  resorting  to  the  said 
waters,  should  be  submitted  to  a  Tribunal  of  Arbitration  to  be  com- 
posed of  seven  arbitrators,  who  should  be  appointed  in  the  following 
manner,  that  is  to  say:  Two  should  be  named  by  the  President  of 
the  United  States;  two  should  be  named  by  Her  Britannic  Majesty; 
His  Excellency  the  President  of  the  French  Republic  should  be  joint- 
ly requested  by  the  high  contracting  parties  to  name  one;  His  Majesty 
the  King  of  Italy  should  be  so  requested  to  name  one ;  His  Majesty  the 
King  of  Sweden  and  Norway  should  be  so  requested  to  name  one; 
the  seven  arbitrators  to  be  so  named  should  be  jurists  of  distinguished 
reputation  in  their  respective  countries,  and  the  selecting  powers 
should  be  requested  to  choose,  if  .possible,  jurists  who  are  acquainted 
with  the  English  language. 

And  whereas,  it  was  further  agreed  by  article  II  of  the  said  Treaty 
that  the  arbitrators  should  meet  at  Paris  within  twenty  days  after  the 
delivery  of  the  counter-cases  mentioned  in  article  IV,  and  should  pro- 
ceed im.partially  and  carefully  to  examine  and  decide  the  questions 
which  had  been  or  should  be  laid  before  them  as  in  the  said  Treaty 
provided  on  the  part  of  the  governments  of  the  United  States  and  of 
Her  Britannic  Majesty  respectively,  and  that  all  questions  considered 
by  the  tribunal,  including  the  final  decision,  should  be  determined  by  a 
majority  of  all  the  arbitrators; 

And  whereas,  by  article  VI  of  the  said  Treaty,  it  was  further  pro- 
vided as  follows:  "In  deciding  the  matters  submitted  to  the  said  ar- 
bitrators, it  is  agreed  that  the  following  five  points  shall  be  submitted 
to  them  in  order  that  their  award  shall  embrace  a  distinct  decision 
upon  each  of  said  five  points,  to  wit : 

"1.  What  exclusive  jurisdiction  in  the  sea  now  known  as  the  Behr- 
ing's Sea,  and  what  exclusive  rights  in  the  seal  fisheries  therein,  did 


Ch.  3)  TERRITORY   OF   STATES  249 

Russia  assert  and  exercise  prior  and  up  to  the  time  of  the  cession  of 
Alaska  to  the  United  States? 

"2.  How  far  were  these  claims  of  jurisdiction  as  to  the  seal  fish- 
eries recognized  and  conceded  by  Great  Britain? 

"3.  Was  the  body  of  water  now  known  as  Behring's  Sea  included 
in  the  phrase  Pacific  Ocean,  as  used  in  the  Treaty  of  1825  between 
Great  Britain  and  Russia;  and  what  rights,  if  any  in  the  Behring's 
Sea  were  held  and  exclusively  exercised  by  Russia  after  said  Treaty? 

"4.  Did  not  all  the  rights  of  Russia  as  to  jurisdiction  and  as  to  the 
seal  fisheries  in  Behring's  Sea  east  of  the  water  boundary,  in  the  Treaty 
between  the  United  States  and  Russia  of  the  30th  of  March,  1867, 
pass  unimpaired  to  the  United  States  under  that  Treaty? 

"5.  Has  the  United  States  any  right,  and.  if  so,  what  right,  of 
protection  or  property  in  the  fur-seals  frequenting  the  islands  of  the 
United  States  in  Behring's  Sea  when  such  seals  are  found  outside  the 
ordinary  three-mile  limit?" 

"And  whereas,  by  article  VH  of  the  said  Treaty,  it  was  further 
agreed  as  follows: 

"If  the  determination  of  the  foregoing  questions  as  to  the  exclusive 
jurisdiction  of  the  United  States  shall  leave  the  subject  in  such  posi- 
tion that  the  concurrence  of  Great  Britain  is  necessary  to  the  estab- 
lishment of  regulations  for  the  proper  protection  and  preservation  of 
the  fur-seal  in,  or  habitually  resorting  to  the  Behring's  Sea,  the  ar- 
bitrators shall  then  determine  what  concurrent  regulations,  outside 
the  jurisdictional  limits  of  the  respective  governments,  are  necessary, 
and  over  what  waters  such  regulations  should  extend. 

"The  high  contracting  parties  furthermore  agree  to  co-operate  in 
securing  the  adhesion  of  other  powers  to  such  regulations ;" 

And  whereas,  by  article  VHI  of  the  said  Treaty,  after  reciting  that 
the  high  contracting  parties  had  found  themselves  unable  to  agree 
upon  a  reference  which  should  include  the  question  of  the  liability  of 
each  for  the  injuries  alleged  to  have  been  sustained  by  the  other,  or  by 
its  citizens,  in  connection  with  the  claims  presented  and  urged  by  it, 
and  that  "they  were  solicitous  that  this  subordinate  question  should 
not  interrupt  or  longer  delay  the  submission  and  determination  of  the 
main  questions,"  the  high  contracting  parties  agreed  that  "either  of 
them  might  submit  to  the  arbitrators  any  question  of  fact  involved  in 
said  claims  and  ask  for  a  finding  thereon,  the  question  of  the  liability 
of  either  government  upon  the  facts  found,  to  be  the  subject  of  further 
negotiation" ; 

And  whereas,  the  President  of  the  United  States  of  America  named 
the  Honorable  John  M.  Harlan,  Justice  of  the  Supreme  Court  of  the 
United  States,  and  the  Honorable  John  T.  Morgan,  Senator  of  the 
United  States,  to  be  two  of  the  Said  arbitrators,  and  Her  Britannic 
Majesty  named  the  Right  Honorable  Lord  Hannen  and  the  Honorable 
Sir  John  Thompson,  Minister  of  Justice  and  Attorney  General  for 
Canada,  to  be  two  of  the  said  arbitrators,  and  His  Excellency  the 


250  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Parti 

President  of  the  French  Republic  named  the  Baron  De  Courcel,  Sen- 
ator, Ambassador  of  France,  to  be  one  of  the  said  arbitrators,  and 
His  Majesty  the  King  of  Italy  named  the  Marquis  Emilio  Visconti 
Venosta,  former.  Minister  of  Foreign  Affairs  and  Senator  of  the  King- 
dom of  Italy,  to  be  one  of  the  said  arbitrators,  and  His  Majesty  the 
King  of  Sweden  and  Norway  named  Mr.  Gregers  Gram,  Minister 
of  State,  to  be  one  of  the  said  arbitrators ; 

And  whereas,  we,  the  said  arbitrators  so  named  and  appointed,  hav- 
ing taken  upon  ourselves  the  burden  of  the  said  arbitration,  and  having 
duly  met  at  Paris,  proceeded  impartially  and  carefully  to  examine 
and  decide  all  the  questions  submitted  to  us  the  ^aid  arbitrators,  under 
the  said  Treaty,  or  laid  before  us  as  provided  in  the  said  Treaty  on 
the  part  of  the  governments  of  Her  Britannic  Majesty  and  the  United 
States  respectively: 

Now  we,  the  said  arbitrators,  having  impartially  and  carefully  ex- 
amined the  said  questions,  do  in  like  manner  by  this  our  award  de- 
cide and  determine  the  said  questions  in  the  manner  following,  that  is 
to  say:  We  decide  and  determine  as  to  the  five  points  mentioned  in 
article  VI  as  to  which  our  award  is  to  embrace  a  distinct  decision 
upon  each  of  them  : 

As  to  the  first  of  the  said  five  points,  we,  the  said  Baron  De  Courcel, 
Mr.  Justice  Harlan,  Lord  Hannen,  Sir  John  Thompson,  Marquis  Vis- 
conti Venosta,  and  Mr.  Gregers  Gram,  being  a  majority  of  the  said 
arbitrators,  do  decide  and  determine  as  follows : 

J  By  the  Ukase  of  1821,  Russia  claimed  jurisdiction  in  the  sea  now 
known  as  the  Behring's  Sea,  to  the  extent  of  100  Italian  miles  from 
the  coasts  and  islands  belonging  to  her,  but,  in  the  course  of  the  nego- 
tiations which  led  to  the  conclusion  of  the  Treaties  of  1824  with  the 
United  States  and  of  1825  with  Great  Britain,  Russia  admitted  that 
her  jurisdiction  in  the  said  sea  should  be  restricted  to  the  reach  of 
cannon  shot  from  shore,  and  it  appears  that,  from  that  time  up  to  the 
time  of  the  cession  of  Alaska  to  the  United  States,  Russia  never  as- 
serted in  fact  or  exercised  any  exclusive  jurisdiction  in  Behring's  Sea 
or  any  exclusive  rights  in  the  seal  fisheries  therein  beyond  the  ordinary 
limit  of  territorial  waters. 

31,  As  to  the  second  of  the  said  five  points,  we,  the  said  Baron  de 
Courcel,  Mr,  Justice  Harlan,  Lord  Hannen,  Sir  John  Thompson, 
Marquis  Visconti  Venosta,  and  Mr.  Gregers  Gram,  being  a  majority 
of  the  said  arbitrators,  do  decide  and  determine  that  Great  Britain 
did  not  recognize  or  concede  any  claim,  upon  the  part  of  Russia,  to 
exclusive  jurisdiction  as  to  the  seal  fisheries  in  Behring  Sea,  outside 
of  ordinary  territorial  waters.  J  ^""^-.^ 

lU:  As  to  the  third  of  the  said  five  points,  as  to  so  much  thereof  as  re- 
quires us  to  decide  whether  the  body  of  water  now  known  as  Behring 
Sea  was  included  in  the  phrase  "Pacific  Ocean"  as  used  in  the  Treaty 
of  1825  between  Great  Britain  and  Russia,  we,  the  said  arbitrators, 
do  unanimously  decide  and  determine  that  the  body  of  water  no\» 


Ch.  3)  TERRITORY   OP   STATES  251 

known  as  the  B  eh  ring  Sea  was  included  in  the  phrase  "Pacific  Ocean" 
as  used  in  the  said  Treaty. 

And  as  to  so  much  of  the  said  third  point  as  requires  us  to  decide 
what  rights,  if  any,  in  the  Behring  Sea  were  held  and  exchisively 
exercised  by  Russia  after  the  said  Treaty  of  1825,  we,  the  said  Baron 
de  Courcel,  Mr.  Justice  Harlan,  Lord  Hannen,  Sir  John  Thompson, 
Marquis  Visconti  Venosta,  and  Mr.  Gregers  Gram,  being  a  majority 
of  the  said  arbitrators,  do  decide  and  determine  that  no  exclusive 
rights  of  jurisdiction  in  Behring  Sea  and  no  exclusive  rights  as  to 

jthe  seal  fisheries  therein,  were  held  or  exercised  by  Russia  outside  of 
ordinary  territorial  waters  after  the  Treaty  of  1825. 

TV'  As  to  the  fourth  of  the  said  five  points,  we,  the  said  arbitrators,  do 
unanimously  decide  and   determine  that  all  the  rights  of  Russia  as 

_to  jurisdiction  and  as  to  the  seal  fisheries  in  Behring  Sea,  east  of  the 
water  boundary,_in  the  Treaty  between  the  United  States  and  Russia 
of  the  30th  of  March,  1867,  did  pass  unimpaired  to  the  United  States 
under  the  said  Treaty.    . 

:^V'  As  to  the  fifth  of  the  said  five  points,  we,  the  said  Baron  de  Courcel, 
Lord  Hannen,  Sir  John  Thompson,  Marquis  Visconti  Venosta,  and 
Mr.  Gregers  Gram,  being  a  majority  of  the  said  arbitrators,  do  decide 
and  determine  that  the  United  States  has  not  any  right  of  protection 
or  property  in  the  fur-seals  frequenting  the  islands  of  the  United 
States  in  Behring  Sea,  when  such  seals  are  found  outside  the  ordinary 
three-mile  limit.     *     *     *  ^^ 

31  In  United  States  v.  Bull,  15  Philippine  Reports,  7,  15  (1010),  the  Supreme 
Court  of  the  Philippine  Islands  sustained  an  indictment  under  a  statute  of  the 
Philippine  Islands  for  failure  to  provide  suitable  means  for  securing  animals, 
although  transported  from  Formosa  upon  a  foreign  vessel  to  the  Philippine 
Islands. 

Mr.  Justice  Elliott  held,  for  the  court,  that  the  statute  was  not  applicable 
until  the  vessel  came  within  American  jurisdiction,  but  that  it  began  to  apply 
the  moment  the  vessel  entered  American  jurisdiction.  In  the  course  of  his 
opinion  the  learned  Justice  said : 

"The  United  States  has  adhered  consistently  to  the  view  that  when  a  mer- 
chant vessel  enters  a  foreign  port  it  is  subject  to  the  jurisdiction  of  the  local 
authorities,  unless  the  local  sovereignty  has  by  act  of  acquiescence  or  through 
treaty  arrangements  consented  to  waive  a  portion  of  such  jurisdiction.  15  Op. 
Atty.  Gen.  U.  S.  178 ;  2  Moore,  Int.  Law  Dig.  §  204 ;  article  by  Dean  Gregory, 
Mich.  Law  Review,  vol.  II,  No.  5." 

See,  The  Elida,  Supreme  Prize  Court  of  Berlin,  1915,  Entscheidungen  des 
Oberprisengerichts  in  Berlin,  1918,  9,  holding  that  jurisdiction  universally 
exercised  within  three  miles  from  low-water  mark  cannot  be  extended  without 
the  consent  of  the  nation  sought  to  be  affected,  and  that  the  general  rule  can 
only  be  varied  by  general  agreement. 


252  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  PEACE       (Part  1 

V.  Prescription  " 
VIRGINIA  V.  TENNESSEE. 

(Supreme  Court  of  the  United  States.  1892.    14S  U.  S.  503,  13  Sup.  Ct.  728,  37 

L.  Ed.  537.) 

In  1802  the  states  of  Tennessee  and  Virginia  settled  a  protracted 
boundary  dispute  between  the  two  states  which  had  lasted  over  a 
century  between  them  or  their  predecessors  in  interest.  A  line  was  run 
by  the  commissioners  of  both  states  and  solemnly  ratified  in  1803  by 
both  Legislatures.  In  1856,  on  account  of  the  old  marks  being  some- 
what effaced,  duly  authorized  commissioners  of  the  two  states  re-mark- 
ed the  old  line,  which  action  was  approved  by  Tennessee.  Virginia 
withdrew  her  approval,  and  demanded  that  a  new  set  of  commission- 
ers re-run  and  re-mark  the  line. 

Virginia  in  the  bill  filed  in  this  court  asked  that  the  agreement  of 
1803  be  declared  null  and  void,  as  being  made  without  the  consent  of 
Congress,  and  claimed  that  it  ran  too  far  north,  so  as  unjustly  to  include 
a  strip  of  land  varying  from  two  to  eight  miles  in  width  and  one  hun- 
dred and  thirteen  miles  in  length.  The  bill  of  complaint  prays  that 
this  court  establish  the  true  boundary  line  in  accordance  with  the 
ancient  chartered  rights  of  the  commonwealth. 

Mr.  Justice  Fie^ld  delivered  the  opinion  of  the  court.^' 

This  is  a  suit  to  establish  by  judicial  decree  the  true  boundary  line 
between  the  states  oL  Virginia  and  Tennessee.  It  embraces  a  contro- 
versy of  which  this  court  has  original  jurisdiction,  and  in  this  respect 
the  judicial  department  of  our  government  is  distinguished  from  the 
judicial  department  of  any  other  country,  drawing  to  itself  by  the 
ordinary  modes  of  peaceful  procedure  the  settlement  of  questions  as 
to  boundaries  and  consequent  rights  of  soil  and  jurisdiction  between 
states,  possessed,  for  purposes  of  internal  government,  of  the  powers 
of  independent  communities,  which  otherwise  might  be  the  fruitful 
cause  of  prolonged  and  harassing  conflicts.     *     *     * 

Independently  of  any  eft'ect  due  to  the  compact  as  such,  a  boundary 
line  between  states  or  provinces,  as  between  private  persons,  which 
has  been  run  out,  located  and  marked  u^n^the  earth,  and  afterwards 
recognized  and  acquiesced  in  by  the  parties  for  a  long  course  of  years, 
is  conclusive,  even  if  it  be  ascertained  that  it  varies  somewhat  from 
the  courses  given  in  the  original  grant;  and  the  line  so  established  takes 
effect,  not  as  an  alienation  of  territory,  but  as  a  definition  of  the  true 
and  ancient  boundary.     Lord  Hardwicke,  in  Penn  v.  Lord  Baltimore, 

^2  For  a  consideration  of  the  doctrine  of  prescription  and  laches,  and  their 
application  to  the  relations  of  nations,  see  the  opinion  of  Ralston,  Lmpire  of 
the  Italian- Venezuelan  Arbitration  Commission  of  1903  in  the  Gentini  Case, 
Balston's  Venezuelan  Arbitrations  of  1903,  p.  720. 

*3,  The  statement  of  facts  is  rewritten  and  parts  of  the  opinion  are  omitted. 


Ch.  3)  TERRITORY  OF    STATES  253 

1  Vesey,  Sen.  444,  448;  Boyd  v.  Graves,  4  Wheat.  513,  4  L.  Ed.  628; 
Rhode  Island  v.  Massachusetts,  12  Pet.  657,  734,  9  L.  Ed.  1233 ;  Unit- 
ed States  V.  Stone,  2  Wall.  525,  537,  17  L.  Ed.  765 ;  Kellogg  v.  Smith, 
7  Cush.  (Mass.)  375,  382 ;  Chenery  v.  Waltham,  8  Cush.  (Mass.)  327 ; 
Hunt  on  Boundaries  (3d  Ed.)  306. 

As  said  by  this  court  in  the  recent  case  of  the  State  of  Indiana  v. 
Kentucky,  136  U.  S.  479,  510,  10  Sup.  Ct.  1051,  34  L.  Ed.  329:  "It  is 
a  principle  of  public  law,  universally  recognized,  that  long  acquiescence 
in  the  possession  of  territory,  and  in  the  exercise  of  dominion  and  sov- 
ereignty over  it,  is  conclusive  of  the  nation's  title  and  rightful  authori- 
ty." In  the  case  of  Rhode  Island  v.  Massachusetts,  4  How.  591,  639,  11 
L.  Ed.  1116,  this  court,  speaking  of  the  long  possession  of  Massachu- 
setts, and  the  delays  in  alleging  any  mistake  in  the  action  of  the  commis- 
sioners of  the  colonies,  said:  "Surely  this,  connected  with  the  lapse  of 
time,  must  remove  all  doubts  as  to  the  right  of  the  respondent  under 
the  agreements  of  1711  and  1718.  No  human  transactions  are  unaffected 
by  time.  Its  influence  is  seen  on  all  things  subject  to  change.  And 
this  is  peculiarly  the  case  in  regard  to  matters  which  rest  in  memory, 
and  which  consequently  fade  with  the  lapse  of  time  and  fall  with  the 
lives  of  individuals.  For  the  security  of  rights,  whether  of  states  or  in- 
dividuals, long  possession  under  a  claim  of  title  is  protected.  And  there 
is  no  controversy  in  which  this  great  principle  may  be  invoked  with 
greater  justice  and  propi^iety  than  in  a  case  of  disputed  boundary." 

Vattel,  in  his  Law  of  Nations,  speaking  on  this  subject,  says:    "The 
tranquilHty  of  the  people,  the  safety  of  states,  the  happiness  of  the 
human  race,  do  not  allow  that  the  possessions,  empire,  and  other  rights 
of  nations  should  remain  uncertain,  subject  to  dispute  and  ever  ready , 
to  occasion  bloody  wars.    Between  nations,  therefore,  it  becomes  nee- 1 
essary  to  admit  prescription  founded  on  length  of  time  as  a  valid  and 
incontestable  title."     Book  II,  c.    11,  §   149.     And  Wheaton,  in  his  j 
International  Law,  says :    "The  writers  on  natural  law  have  questioned  ' 
how  far  that  peculiar  species  of  presumption,  arising  from  the  lapse 
of  time,  which  is  called  'prescription,'  is  justly  applicable  as  between  na- 
tion and  nation;    but  the  constant  and  approved  practice  of  nations 
shows  that  by  whatever  name  it  be  called,  the  uninterrupted  possession 
of  territory  or  other  property  for  a  certain  length  of  time  by  one 
state  excludes  the  claim  of  every  other  in  the  same  manner  as,  by  the 
law  of  nature  and  the  municipal  code  of  every  civilized  nation,  a  simi- 
lar possession  by  an  individual  excludes  the  claim  of  every  other  person 
to  the  article  of  property  in  question."    Part  II,  c.  4,  §  164. 

There  are  also  moral  considerations  which  should  prevent  any  dis- 
turbance of  long  recognized  boundary  lines ;  considerations  springing 
from  regard  to  the  natural  sentiments  and  affections  which  grow  up 
for  places  on  which  persons  have  long  resided ;  the  attachments  to 
country,  to  home  and  to  family,  on  which  is  based  all  that  is  dearest 
and  most  valuable  in  life. 


254  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

Notwithstanding  the  legislative  declaration  of  Virghiia  in  1803  that 
the  line  marked  by  the  joint  commissioners  of  the  two  states  was  rati- 
fied as  the  true  and  real  boundary  between  them,  and  the  repeated  re- 
affirmation of  the  same  declaration  in  her  laws  since  that  date,  notably 
in  the  Code  of  1858,  in  the  Code  of  1860  and  in  the  Code  of  1887; 
notwithstanding  that  the  state  has  in  various  modes  attested  to  the 
correctness  of  the  boundaiy — by  solemn  affirmation  in  terms,  by  legis- 
lation, in  the  administration  of  its  government,  in  the  levy  of  taxes  and 
the  election  of  officers,  and  in  its  acquiescence  for  over  eighty-five 
years,  embracing  nearly  the  lives  of  three  generations,  she  now,  by  her 
bill,  seeks  to  throw  aside  the  obligation  from  her  legislative  declaration, 
because,  as  alleged,  not  made  upon  the  express  consent,  in  terms,  of 
Congress,  although  such  consent  has  been  indicated  by  long  acquies- 
cence in  the  assumption  of  the  validity  of  the  proceedings  resulting  in 
the  establishment  of  the  boundary,  and  to  have  a  new  boundary  line 
between  Virginia  and  Tennessee  established  running  due  east  and  west 
on  latitude  thirty-six  degrees  thirty  minutes  north.  But  to  this  position 
there  is,  in  addition  to  what  has  already  been  said,  a  conclusive  answer 
in  the  language  of  this  court  in  Poole  v.  Fleeger,  11  Pet.  185,  209,  9 
h.  Ed.  680.  In  that  case  Mr.  Justice  Story,  after  observing  that  "it  is 
a  part  of  the  general  right  of  sovereignty  belonging  to  independent  na- 
tions to  establish  and  fix  the  disputed  boundaries  between  their  re- 
spective territories,  and  the  boundaries  so  established  and  fixed  by  com- 
pact between  nations  become  conclusive  upon  all  the  subjects  and  citi- 
zens thereof,  and  bind  their  rights  and  are  to  be  treated  to  all  intents 
and  purposes,  as  the  true  and  real  boundary,"  adds :  "This  is  a  doc- 
trine universally  recognized  in  the  law  and  practice  of  nations.  It  is 
a  right  equally  belonging  to  the  states  of  this  Union,  unless  it  has  been 
surrendered  under  the  Constitution  of  the  United  States.  So  far  from 
there  being  any  pretence  of  such  a  general  surrender  of  the  right,  it 
is  expressly  recognized  by  the  Constitution,  and  guarded  in  its  exercise 
by  a  single  limitation  or  restriction,  requiring  the  consent  of  Congress." 
The  Constitution  in  imposing  this  limitation  plainly  admits  that  with 
such  consent  a  compact  as  to  boundaries  may  be  made  between  two 
states ;  and  it  follows  that  when  thus  made  it  has  full  validity,  and 
all  the  terms  and  conditions  of  it  are  equally  obligatory  upon  the  citi- 
zens of  both  states. 

The  compact  in  this  case  having  received  the  consent  of  Congress, 
though  not  in  express  terms,  yet  impliedly,  and  subsequently,  which  is 
equally  effective,  became  obligatory  and  binding  upon  all  the  citizens 
of  both  Virginia  and  Tennessee.  Nor  is  it  any  objection  that  there 
may  have  been  errors  in  the  demarcation  of  the  line  which  the  states 
thus  by  their  compact  sanctioned.  After  such  compacts  have  been  ad- 
hered to  for  years,  neither  party  can  be  absolved  from  them  upon  show- 
ing errors,  mistakes  or  misapprehension  of  their  terms,  or  in  the  line 


Ch.  3)  TERRITORY   OF   STATES  255 

established ;  and  this  is  a  complete  and  perfect  answer  to  the  complain- 
ant's position  in  this  case.     *     *     * 

Our  judgment,  therefore,  is  that  the  boundary  line  established  by 
the  states  of  Virginia  and  Tennessee  by  the  compact  of  1803  is  the  true 
boundary  between  them,  and  that  on  a  proper  application,  based  upon 
a  showing  that  any  marks  for  the  identification  of  that  line  have  been 
obliterated  or  have  become  indistinct,  an  order  may  be  made,  at  any 
time  during  the  present  term,  for  the  restoration  of  such  marks  with- 
out any  change  of  the  line.     *     *     * 


SECTION  3.— SERVITUDES 


UNITED  STATES  v.  WIN  AN  S. 

(Supreme  Court  of  the  United  States,  1905.     198  U.  S.  371,  25  Sup.  Ct.  662, 

49  L.  Ed.  1089.) 

The  facts  are  stated  in  the  opinion. 

Mr.  Justice  McKe^nna  delivered  the  opinion  of  the  court. 

This  suit  was  brought  to  enjoin  the  respondents  from  obstructing 
certain  Indians  of  the  Yakima  Nation  in  the  state  of  Washington  from 
exercising  fishing  rights  and  privileges  on  the  Columbia  river  in  that 
state,  claimed  under  the  provisions  of  the  treaty  between  the  United 
States  and  the  Indians,  made  in  1859. 

There  is  no  substantial  dispute  of  facts,  or  none  that  is  important 
to  our  inquiry. 

The  treaty  is  as  follows : 

"Article  I.  The  aforesaid  confederated  tribes  and  bands  of  Indians 
hereby  cede,  relinquish,  and  convey  to  the  United  States  all  their  right, 
title,  and  interest  in  and  to  the  lands  and  country  occupied  and  claimed 
by  them.     *     *     * 

"Article  II.  There  is,  however,  reserved  from  the  lands  above  ceded 
for  the  use  and  occupation  of  the  aforesaid  confederated  tribes  and 
bands  of  Indians,  the  tract  of  land  included  within  the  following 
boundaries ;     *     *     * 

"All  of  which  tract  shall  be  set  apart,  and,  so  far  as  necessary,  sur- 
veyed and  marked  out,  for  the  exclusive  use  anS  benefit  of  said  con- 
federated tribes  and  bands  of  Indians  as  an  Indian  reservation ;  nor 
shall  any  white  man,  excepting  those  in  the  employment  of  the  Indian 
Department,  be  permitted  to  reside  upon  the  said  reservation  without 
permission  of  the  tribe  and  the  superintendent  and  agent.  And  the  said 
confederated  tribes  and  bands  agree  to  remove  to,  and  settle  upon,  the 
same,  within  one  year  after  the  ratification  of  this  treaty.    In  the  mean- 


256  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

time  it  shall  be  lawful  for  them  to  reside  upon  any  ground  not  in  the  ac- 
tual claim  and  occupation  of  citizens  of  the  United  States ;  and  upon 
any  ground  claimed  or  occupied,  if  with  the  permission  of  the  owner 
or  claimant. 

"Guaranteeing,  however,  the  right  to  all  citizens  of  the  United  States 
to  enter  upon  and  occupy  as  settlers  any  lands  not  actually  occupied  and 
cultivated  by  said  Indians  at  this  time,  and  not  included  in  the  reserva- 
tion above  named.     *     *     * 

"Article  III.  And  provided,  that,  if  necessary  for  the  public  con- 
venience, roads  may  be  run  through  the  said  reservation;  and,  on  the 
other  hand,  the  right  of  way,  with  free  access  from  the  same  to  the 
nearest  public  highway,  is  secured  to  them ;  as  also  the  right,  in  com- 
mon with  citizens  of  the  United  States,  to  travel  upon  all  public  high- 
ways. 

"The  exclusive  right  of  taking  fish  in  all  the  streams  where  running 
through  or  bordering  said  reservation,  is  further  secured  to  said  con- 
federated tribes  and  bands  of  Indians,  as  also  the  right  of  taking  fish  at 
all  usual  and  accustomed  places,  in  common  with  citizens  of  the  terri- 
tory, and  of  erecting  temporary  buildings  for  curing  them;  together 
with  the  privilege  of  hunting,  gathering  roots  and  berries,  and  pas- 
turing their  horses  and  cattle  upon  open  and  unclaimed  land.     *     *     * 

"Article  X.  And  provided,  that  there  is  also  reserved  and  set  apart 
from  the  lands  ceded  by  this  treaty,  for  the  use  and  benefit  of  the 
aforesaid  confederated  tribes  and  bands,  a  tract  of  land  not  exceeding 
in  quantity  one  township  of  six  miles  square,  situated  at  the  forks  of 
the  Pisquouse  or  Wenatshapam  river,  and  known  as  the  "Wenatshap- 
am  fishery,"  which  said  reserv^ation  shall  be  surveyed  and  marked  out 
whenever  the  President  may  direct,  and  be  subject  to  the  same  pro- 
visions and  restrictions  as  other  Indian  reservations."     12  Stat..  951. 

The  respondents  or  their  predecessors  in  title  claim  under  patents 
of  the  United  States  the  lands  bordering  on  the  Columbia  river  and 
under  grants  from  the  state  of  Washington  to  the  shore  land  which,  it 
is  alleged,  fronts  on  the  patented  land.  They  also  introduced  in  evi- 
dence licenses  from  the  state^  maintain  devices  for  taking  fish,  called 
fish  wheels.  "" 

At  the  time  the  treaty  was  made  the  fishing  places  were  part  of  the 
Indian  country,  subject  to  the  occupancy  of  the  Indians,  with  all  the 
rights  such  occupancy  gave.  The  object  of  the  treaty  was  to  limit 
ihe  occupancx  to  certain  lands  and  to  define  rights  outside  of  them. 

The  pivot  O'f  the  controversy  is  the  construction  of  the  second  para- 
graph. Respondents  contend  that  the  words  "the  right  of  taking  fish 
at  all  usual  and  accustomed  places  in  common  with  the  citizens  of  the 
territory"  confer  only  such  rights  as  a  white  man  would  have  under  the 
conditions  of  ownership  of  the  lands  bordering  on  the  river,  and  under 
the  laws  of  the  state,  and,  such  being  the  rights  conferred,  the  respond- 
ents further  contend  that  they  have  the  power  to  exclude  the  Indians 


Ch.  3)  TERRITORY   OF   STATES  257 

from  the  river  by  reason  of  such  ownership.  Before  filing  their  answer 
respondents  demurred  to  the  bill.  The  court  overruled  the  demurrer, 
holding  that  the  bill  stated  facts  sufficient  to  show  that  the  Indians 
were  excluded  from  the  exercise  of  the  rights  given  them  by  the  treaty. 
The  court  further  found,  however,  that  it  w^ould  "not  be  justified 
in  issuing  process  to  compel  the  defendants  to  permit  the_  Indians  to 
make  a  camping  ground  of  their  property  while  engaged  in  fishing." 
United  States  v.  Winans  (C.  C.)  73  Fed.  72.  The  injunction  that  had 
been  granted  upon  the  filing  of  the  bill  was  modified  by  stipulation  in 
accordance  with  the  view  of  the  court. 

Testimony  was  taken  on  the  issues  made  by  the  bill  and  answer, 
and  upon  the  submission  of  tlie  case  the  bill  was  dismissed,  the  court 
applying  the  doctrine  expressed  bv  it  in  the  United  States  v.  Alaska 
Packers' .Ass'n  (C.  C.)  79  Fed.  152;  The  James  G.  Swan  (D.  C.)  50 
Fed.  .108,  expressing  its  views  as  follows : 

"After  the  ruling  on  the  demurrer  the  only  issue  left  for  determina- 
tion in  this  case  is  as  to  whether  the  defendants  have  interfered  or 
threatened  to  interfere  with  the  rights  of  the  Indians  to  share  in  the 
common  right  of  the  public  of  taking  fish  from  the  Columbia  river,  and 
I  have  given  careful  consideration  to  the  testimony  bearing  upon  this 
qvtestion.  I  find  from  the  evidence  that  the  defendants  have  excluded 
the  Indians  from  their  own  lands,  to  which  a  perfect  absolute  title  has 
been  acquired  from  the  United  States  government  by  patents,  and 
they  have  more  th^n  once  instituted  legal  proceedings  against  the  In- 
dians for  trespassing,  and  the  defendants  have  placed  in  the  river  in 
front  of  their  lands  fishing  wheels  for  which  licenses  were  granted 
to  them  by  the  state  of  Washington,  and  they  claim  the  right  to  oper- 
ate these  fishing  wheels,  which  necessitates  the  exclusive  possession 
of  the  space  occupied  by  the  wheels.  Otherwise  the  defendants  have 
not  molested  the  Indians  nor  threatened  to  do  so.  The  Indians  are  at 
the  present  time  on  an  equal  footing  with  the  citizens  of  the  United 
States  who  have  not  acquired  exclusive  proprietary  rights,  and  this  it 
seems  to  me  is  all  that  they  can  legally  demand  with  respect  to  fishing 
privileges  in  waters  outside  the  limits  of  Indian  reservations  under  the 
terms  of  their  treaty  with  the  United  States." 

The  remarks  of  the  court  clearly  stated  the  issue  and  the  grounds 
of  decision.  The  contention  of  the  respondents  was  sustained.  In 
other  words,  it  was  decided  that  the  Indians  acquired  no  rights  but 
what  any  inhabitant  of  the  territory  or  st^te  would  have;  indeed, 
acquired  no  rights  but  such  ap  they  would  have  without  the  treaty. 
This  is  certainly  an  impotent  outcome  to  negotiations  and  a  convention, 
which  seemed  to  promise  more  and  give  the  word  of  "the  nation  for 
more.  And  we  have  said  we  will  construe  a  treaty  with  the  Indians 
as  "that  unlettered  people''  understood  it.  and  ''as  justice  and  reason 
demand  in  all  cases  where  power  is  exerted  by  tlie  strong  over  tliose 
Scott  Int. Law — 17 


258  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   PEACE       (Part  T 

to  whom  they  owe  care  and  protection,"  and  counterpoise  the  inequali- 
ty "by  the  superior  justice  which  looks  only  to  the  substance  of  the 
right  without  regard  to  technical  rules."  Choctaw  Nation  v.  United 
States,  119  U.  S.  1,  7  Sup.  Ct.  75,  30  L.  Ed.  306;  Jones  v.  Meehan, 
1/5  U.  S.  1,  20  Sup.  Ct.  1,  44  L.  Ed.  49.  How  the  treaty  in  question 
was  understood  may  be  gathered  from  the  circumstances. 

The  right  to  resort  to  the  fishing  places  in  controversy  was  a  part  of 
larger  rights  possessed  by  the  Indians  upon  the  exercise  of  which 
there  was  not  a  shadow  of  impediment,  and  which  were  not  much 
less  necessary  to  the  existence  of  the  Indians  than  the  atmosphere 
they  breathed.  New  conditions  came  into  existence,  to  which  those 
rights  had  to  be  accommodated.  Only  a  limitation  of  them,  however, 
was  necessary  and  intended,  not  a  taking  away.  In  other  words,  the 
treaty  was  not  a  grant  of  rights  to  the  Indians,  but  a  grant  .of  rights 
from  them — a  reservation  of  those  not  granted.  And  the  form  of  the 
instrument  and  its  language  was  adapted  to  that  purpose.  Reservations 
were  not  of  particular  parcels  of  land,  and  could  not  be  expressed  in 
deeds  as  dealings  between  private  individuals.  The  reservations  were  in 
large  areas  of  territory  and  the  negotiations  were  with  the  tribe.  They 
reserved  rights,  however,  to  every  individual  Indian,  as  though  named 
therein.  They  imposed  a  servitude jipon  every  piece  of  land  as  though 
described  therein.  There  was  an  exclusive. right.  ol_fisbing  reserved 
within  certain  boundaries.  There  was  a  right  outside  of  those  bound- 
aries reserved  "in  common  with  citizens  of  the  territory."  As  a  mere 
right,  it  was  not  exclusive  in  the  Indians.  Citizens  might  share  it,  but 
_the  Indians  were  secured  in_i^s  enjoyment  by  a  special  provision  of 
means  for  its  exercise.  They  were  given  "the  right  of  taking  fish  at 
all  usual  and  accustomed  places,"  and  the  right  "of  erecting  temporary 
_^buildings  for  curing  them."  The  contingency  of  the  future  ownership 
of  the  lands,  therefore,  was  foreseen  and  provided  for;  in  other  words, 
the  Indians  were  given  a  right  in  the  land — the  right  of  crossing  it  to 
the  river — the  right  to  occupy  it  to  the  extent  and  for  the  purpose 
mentioned.  No  other  conclusion  would  give  effect  to  the  treaty.  And 
the  right  was  intended  to  be  continuing  against  the  United  States  and 
its  grantees  as  well  as  against  the  state  and  its  grantees. 

The  respondents  urge  an  argument  based  upon  the  different  capac- 
ities of  white  men  and  Indians  to  devise  and  make  use  of  instrumen- 
talities to  enjoy  the  common  right.  Counsel  say :  "The  fishing  right 
was  in  common,  and  aside  from  the  right  of  the  state  to  license  fish 
wheels  the  wheel  fishing  is  one  of  the  civilized  man's  methods,  as 
legitimate  as  the  substitution  of  the  modern  combined  harvester  for  the 
ancient  sickle  and  flail."  But  the  result  does  not  follow  that  the 
Indians  may  be  absolutely  excluded.  It  needs  no  argument  to  show 
that  the  superiority  of  a  combined  harvester  over  the  ancient  sickle 
neither  increased  nor  decreased  rights  to  the  use  of  land  held  in  com- 

ScoTT  Int.Law 


Ch.  3)  TERRITORY  OF   STATES  259 

mon.  In  the  actual  taking  of  fish  white  men  may  not  be  confined  to 
a  spear  or  crude  net,  but  it  does  not  follow  that  they  may  construct 
and  use  a  device  which  gives  them  exclusive  possession  of  the  fishing 
places,  as  it  is  admitted  a  fish  wheel  does.  Besides,  the  fish  wheel 
is  not  relied  on  alone.  Its  monopoly  is  made  complete  by  a  license  from 
the  state.  The  argument  based  on  the  inferiority  of  the  Indians  is 
peculiar.  If  the  Indians  had  not  been  inferior  in  capacity  and  power, 
what  the  treaty  would  have  been,  or  that  there  would  have  been  any 
treaty,  would  be  hard  to  guess. 

The  construction  of  the  treaty  disposes  of  certain  subsidiary  con- 
tentions of  respondents.  The  Land  Department  could  grant  no  ex- 
emptions from  its  provisions.  It  makes  no  difference,  therefore,  that 
the  patents  issued  by  the  department  are  absolute  in  form.  They  are 
subject  to  the  treaty  as  to  the  other  laws  of  the  land. 

It  is  further  contended  that  the  rights  conferred  upon  the  Indians  are 
subordinate  to  the  powers  acquired  by  the  state  upon  its  admission  into 
the  Union.  In  other  words,  it  is  contended  that  the  state  acquired, 
by  its  admission  into  the  Union  "upon  an  equal  footing  with  the  orig- 
inal states,"  the  power  to  grant  rights  in  or  to  dispose  of  the  shore  lands 
upon  navigable  streams,  and  such  power  is  subject  only  to  the  para- 
mount authority  of  Congress  with  regard  to  public  navigation  and 
commerce.  The  United  States,  therefore,  it  is  contended,  could  nei- 
ther grant  nor  retain  rights  in  the  shore  or  to  the  lands  vmder  water. 

The  elements  of  this  contention  and  the  answer  to  it  are  expressed 
in  Shively  v.  Bowlby,  152  U.  S.  1,  14  Sup.  Ct.  548,  38  L.  Ed.  331.  It 
is  unnecessary,  and  it  would  be  difficult,  to  add  anything  to  the  reason- 
ing of  that  case.  The  power  and  rights  of  the  states  in  and  over 
shore  lands  were  carefully  defined,  but  the  power  of  the  United  States, 
while  it  held  the  country  as  a  territory,  to  create  rights  which  would 
be  binding  on  the  states  was  also  announced,  opposing  the  dicta  scat- 
tered through  the  cases,  which  seemed  to  assert  a  contrary  view.  It 
was  said  by  the  court,  through  Mr.  Justice  Gray : 

"Notwithstanding  the  dicta  contained  in  some  of  the  opinions  of  this 
court,  already  quoted,  to  the  effect  that  Congress  has  no  power  to  grant 
any  land  below  high  water  mark  of  navigable  waters  in  a  Territory  of 
the  United  States,  it  is  evident  that  this  is  not  strictly  true.  *  *  * 
By  the  Constitution,  as  is  now  well  settled,  the  United  States,  having 
rightfully  acquired  the  Territories,  and  being  the  only  Government 
which  can  impose  laws  upon  them,  have  the  entire  dominion  and 
sovereignty,  national  and  municipal,  Federal  and  State,  over  all  the 
Territories,  so  long  as  they  remain  in  a  territorial  condition.  Amer- 
ican Ins.  Co.  V.  Canter,  1  Pet.  511,  542  [7  L.  Ed.  242]  ;  Benner  v.  Por- 
ter, 9  How.  235,  242  [13  L.  Ed.  119]  ;  Cross  v.  Harrison,  16  How. 
164,  193  [14  L.  Ed.  889];  National  Bank  v.  Yankton  County,  101 
U.  S.  129,  133  [25  L.  Ed.  1046]  ;  Murphy  v.  Ramsey,  114  U.  S.  15,  44 
[5  Sup.  Ct.  747,  29  h.  Ed.  47] ;   Mormon  Church  v.  United  States, 


260  RIGHTS  AND  DUTIES   OF  NATIONS   IN  TIME  OF   PEACE       (Part  t 

136  U.  S.  1,  42,  43  [10  Sup.  Ct.  792,  34  L.  Ed.  478]  ;  McAllister 
V.  United  States,  141  U.  S.  174,  181  [11  Sup.  Ct.  949,  35  L.  Ed.  693]." 

Many  cases  were  cited.    And  it  was  further  said : 

"We  cannot  doubt,  therefore,  that  Congress  has  the  power  to  make 
grants  of  land  below  high-water  mark  of  navigable  waters  in  any 
territory  of  the  United  States,  whenever  it  becomes  necessary  to  do  so 
in  order  to  perform  international  obligations,  or  to  effect  the  improve- 
ment of  such  lands  for  the  promotion  and  convenience  of  commerce 
^wlth  foreign  nations  and  among  the  several  states,  or  to  carry  out 
other  public  purposes  appropriate  to  the  objects  for  which  the  United 
States  hold  the  territory." 

The  extinguishment  of  the  Indian  title,  opening  the  land  for  settle- 
ment and  preparing  the  way  for  future  states,  were  appropriate  to 
the  objects  for  which  the  United  States  held  the  territory.  And  surely 
it  was  within  the  competency  of  the  nation  to  secure  to  the  Indians  such 
a  remnant  of  the  great  rights  they  possessed  as  "taking  fish  at  ail  usual 
and  accustomed  places."  Nor  does  it  restrain  the  state  unreasonably, 
if  at  all,  in  the  regulation  of  the  right.  It  only  fixes  in  the  land  such 
easements  as  enables  the  right  to  be  exercised. 

The  license  from  the  state,  which  respondents  plead  to  maintain  a 
fishing  wheel,  gives  no  power  to  them  to  exclude  the  Indians,  nor  was 
it  intended  to  give  such  power.  It  was  the  permission  of  the  state 
to  use  a  particular  device.  What  rights  the  Indians  had  were  not  de- 
termined or  limited.  This  was  a  matter  for  judicial  determination 
regarding  the  rights  of  the  Indians  and  rights  of  the  respondents. 
And  that  there  may  be  an  adjustment  and  accommodation  of  them  the 
Solicitor  General  concedes  and  points  out  the  way.  We  think,  however, 
that  such  adjustment  and  accommodation  are  more  within  the  province 
of  the  Circuit  Court  in  the  first  instance  than  of  this  court. 

Decree  reversed  and  the  case  remanded  for  further  proceedings  in 
accordance  with  this  opinion. 

Mr.  Justice  White  dissents. 


UNITED  STATES  v.  GREAT  BRITAIN. 

(Award  of  the  Tribunal  of  Arbitration  in  the  Question  Relating  to  the  North 

Atlantic  Coast  Fisheries,  The  Hague,  September  7,  1910.     Final  Report 

of  the  Agent  of  the  United  States,  1912,  vol.  1,  p.  64.) 

By  a  special  agreement  between  the  two  countries,  dated  January 
27,  1909,  the  following  question  was  submitted  for  their  determina- 
tion: ^*     Is  the  exercise  of  the  fishing  liberty,  under  the  convention  of 
October  20,  1818,^^, subject,  "withoikt  the  consent  of  the  United  States, 
jto  reasonable  regulation  by  Great  Britain,  Qanada,  or 

3*  For  a  statement  of  the  agreement  to  stibmit  this  phase  of  the  North  At- 
lantic Coast  Fisheries  dispute  to  arbitration,  see  ante,  p.  238. 

3  5  For  the  text  of  the  convention  of  October  20,  1918,  and  the  composition 
of  the  Tribunal,  see  ante,  p.  23S. 


Ch,  3)  TERRITORY   OF   STATES  261 

in  the  form  of  municipal  laws^  ordinances,  or  rules,  as,  for  example,  to 
regulations  in  respect  of  (ij  the  hours,  days,  or  seasons  when  fish  may 
be  taken  on  the  treaty  coasts ;  (2)  the  method,  means  and  implements 
to  be  used  in  the  taking  of  fish  or  in  the  carrying  on  of  fishing  opera- 
tions on  such  coasts;  (3)  any  other  matters  of  a  similar  character  re- 
lating to  fisWng^;_such_regulations  being  reasp^^^  *     *•    * " 

Counsel  for  the  United  States  contended  that  the  fishing  liberty  in 
question  was  an  international  servitude  and  that  as  such  its  exercise 
was  not  subject  to  local  legislation  without  the  consent  of  the  United 
States  had  and  received.  Counsel  for  Great  Britain  denied  that  the 
liberty  in  question  was  an  international  servitude  and  that,  if  it  were, 
its  exercise  was  subject  to  the  local  laws  of  Great  Britain  or  its  colonies. 
On  tlie  question  of  an  international  servitude  the  tribunal  delivered  the 
following  award  on  September  7,  1910: 

Question  I,  thus  submitted  to  the  Tribunal,  resolves  itself  into  two 
main  contentions : 

First.  Whether  the  right  of  regulating  reasonably  the  liberties  con- 
ferred by  the  Treaty  of  1818  resides  in  Great  Britain; 

Second.  And,  if  such  right  does  so  exist,  -yvhether  such  reasonable 
exercise  of  the  right  is  permitted  to  Great  Britain  without  the  accord 
and  concurrence  of  the  United  States. 

The  Treaty  of  1818  contains  no  explicit  disposition  in  regard  to 
the  right  of  regulation,  reasonable  or  otherwise;  it  neither  reserves 
that  right  in  express  terms,  nor  refers  to  it  in  any  way.  It  is  there- 
fore incumbent  on  this  Tribunal  to  answer  the  two  questions  above 
indicated  by  interpreting  the  general  terms  of  article  I  of  the  Treaty, 
and  more  especially  the  words  "the  inhabitants  of  the  United  States 
shall  have,  for  ever,  in  common  with  the  subjects  of  His  Britannic 
Majesty,  the  liberty  to  take  fish  of  every  kind."  This  interpretation 
must  be  conformable  to  the  general  import  of  the  instrument,  the 
general  intention  of  the  parties  to  it,  the  subject  matter  of  the  contract, 
the  expressions  actually  used  and  the  evidence  submitted. 

Now  in  regard  to  the  preliminary  question  as  to  whether  the  right 
of  reasonable  regulation  resides  in  Great  Britain : 

Considering  that  the  right  to  regulate  the  liberties  conferred  by  the 
Treaty  of  1818  is  an  attribute  of  sovereignty,  and  as  such  must  be 
held  to  reside  in  the  territorial  sovereign,  unless  the  contrary  be  pro- 
vided ;  and  considering  that  one  of  the  essential  elements  of  sover- 
eignty is  that  it  is  to  be  exercised  within  territorial  limits,  and  that, 
failing  proof  to  the  contrary,  the  territory  is  coterminous  with  the 
sovereignty,  it  follows  that  the  burden  of  the  assertion  involved  in 
the  contention  of  the  United  States  (viz.  that  the  right  to  regulate  does 
not  reside  independently  in  Great  Britain,  the  territorial  sovereign) 
must  fall  on  the  United  States.  And  for  the  purpose  of  sustaining 
this  burden,  the  United  States  have  put  forward  the  following  series 
of  propositions,  each  one  of  which  must  be  singly  considered. 

It  is  contended  by  the  United  States : 


262  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

(1)  That  the  French  right  of  fishery  under  the  treaty  of  1713  des- 
ignated also  as  a  liberty,  was  never  subjected  to  regulation  by  Great 
Britain,  and  therefore  the  inference  is  warranted  that  the  American 
liberties  of  fishery  are  similarly  exempted. 

The  Tribunal  is  unable  to  agree  with  this  contention.     *     *     * 
For  the  further  purpose  of  such  proof  it  is  contended  by  the  United 
States : 

(2)  That  the  liberties  of  fishery,  being  accorded  to  the  inhabitants 
of  the  United  States  "forever,"  acquire,  by  being  in  perpetuity  and 
unilateral,  a  character  exempting  them  from  local  legislation. 

The  Tribunal  is  unable  to  agree  with  this  contention:     *     *     * 
For  the  further  purpose  of  such  proof,  the  United  States  allege : 

(3)  That  the  liberties  of  fishery  granted  to  the  United  States  con- 
stitute an  International  servitude  in  their  favour  over  the  territory 
of  Great  Britain,  thereby  involving  a  derogation  from  the  sovereignty 
of  Great  Britain,  the  servient  state,  and  that  therefore  Great  Britain 
is  deprived,  by  reason  of  the  grant,  of  its  independent  right  to  regulate 
the  fishery. 

The  Tribunal  is  unable  to  agree  with  this  contention: 

(a)  Because  there  is  no  evidence  that  the  doctrine  of  international 
servitudes  was  one  with  which  either  American  or  British  statesmen 
were  conversant  in  1818,  no  English  publicists  employing  the  term 
before  1818,  and  the  mention  of  it  in  Mr.  Gallatin's  report  being  in- 
sufficient ; 

(b)  Because  a  servitude  in  the  French  law,  referred  to  by  Mr.  Gal- 
latin, can,  since  the  Code,  be  only  real  and  cannot  be  personal  (Code 
Civil,  art.  686) ; 

(c)  Because  a  servitude  in  international  law  pi'edicates  an  express 
grant  of  a  sovereign  right  and  involves  an  analogy  to  the  relation  of 
a  prsedium  dominans  and  a  prgedlum  serviens ;  whereas  by  the  Treaty 
of  1818  one  state  grants  a  liberty  to  fish,  which  is  not  a  sovereign  right, 
but  a  purely  economic  right,  to  the  inhabitants  of  another  state ; 

(d)  Because  the  doctrine  of  international  servitude  in  the  sense 
which  is  now  sought  to  be  attributed  to  it  originated  in  the  peculiar 
and  now  obsolete  conditions  prevailing  in  the  Holy  Roman  Empire 
of  which  the  domini  terrse  were  not  fully  sovereigns ;  they  holding 
territory  under  the  Roman  empire,  subject  at  least  theoretically,  and 
in  some  respects  also  practically,  to  the  courts  of  that  Empire ;  their 
right  being,  moreover,  rather  of  a  civil  than  of  a  public  nature,  par- 
taking more  of  the  character  of  dominium  than  of  im.perium,  and 
therefore  certainly  not  a  complete  sovereignty.  And  because  in  con- 
tradistinction to  this  quasi  sovereignty  with  its  incoherent  attributes 
acquired  at  various  times,  by  various  means,  and  not  impaired  in  its 
character  by  being  incomplete  in  any  one  respect  or  by  being  limited 
in  favour  of  another  territory  and  its  possessor,  the  modern  state,  and 
particularly  Great  Britain,  has  never  admitted  partition  of  sovereignty, 


Ch.  3)  TERRITORY   OF   STATES  263 

owing  to  the  constitution  of  a  modern  state  requiring  essential  sov- 
ereignty and  independence ; 

(e)  Because  this  doctrine  being  but  little  suited  to  the  principle  of 
sovereignty  which  prevails  in  states  under  a  system  of  constitutional 
government  such  as  Great  Britain  and  the  United  States,  and  to  the 
present  international  relations  of  sovereign  states,  has  found  little, 
if  any,  support  from  modern  publicists.  It  could  therefore  in  the 
general  interest  of  the  community  of  nations,  and  of  the  parties  to 
this  Treaty,  be  affirmed  by  this  Tribunal  only  on  the  express  evidence 
of  an  international   contract ; 

(f)  Because,  even  if  these  liberties  of  fishery  constituted  an  inter- 
national servitude,  the  ser\atude  would  derogate  from  the  sovereignty 
of  the  servient  state  only  in  so  far  as  the  exercise  of  the  rights  of 
sovereignty  by  the  servient  state  would  be  contrary  to  the  exercise  of 
the  servitude  right  by  the  dominant  state;  whereas  it  is  evident  that, 
though  every  regulation  of  the  fishery  is  to  some  extent  a  limitation, 
as  it  puts  limits  to  the  exercise  of  the  fishery  at  will,  yet  such  regula- 
tions as  are  reasonable  and  made  for  the  purpose  of  securing  and 
preserving  the  fishery  and  its  exercise  for  the  common  benefit,  are 
clearly  to  be  distinguished  from  those  restrictions  and  "molestations," 
the  annulment  of  which  was  the  purpose  of  the  American  demands 
formulated  by  Mr.  Adams  in  1782,  and  such  regulations  consequently 
cannot  be  held  to  be  inconsistent  with  a  servitude ; 

(g)  Because  the  fishery  to  which  the  inhabitants  of  the  United 
States  were  admitted  in  1783,  and  again  in  1818,  was  a  regulated 
fishery,  as  is  evidenced  by  the  following  regulations ;     *     *     * 

(h)  Because  the  fact  that  Great  Britain  rarely  exercised  the  right 
of  regulation  in  the  period  immediately  succeeding  1818  is  to  be  ex- 
plained by  various  circumstances  and  is  not  evidence  of  the  non- 
existence of  the  right ; 

(i)  Because  the  words  "in  common  with  British  subjects"  tend  to 
confirm  the  opinion  that  the  inhabitants  of  the  United  States  were 
admitted  to  a  regulated  fishery ; 

(j)  Because  the  statute  of  Great  Britain,  1819,  which  gives  legis- 
lative sanction  to  the  Treaty  of  1818,  provides  for  the  making  of 
"regulations  with  relation  to  the  taking,  drying  and  curing  of  fish  by 
inhabitants  of  the  United  States  in  'common.' "     *     *     * 

In  the  course  of  the  argument  it  has  also  been  alleged  by  the  Unit- 
ed States : 

(5)  That  the  Treaty  of  1818  should  be  held  to  have  entailed  a  trans- 
fer or  partition  of  sovereignty,  in  that  it  must  in  respect  to  the  liberties 
of  fishery  be  interpreted  in  its  relation  to  the  Treaty  of  1783;  and 
tliat  this  latter  Treaty  was  an  act  of  partition  of  sovereignty  and  of 
separation,  and  as  such  was  not  annulled  by  the  War  of  1812. 

Although  the  Tribunal  is  not  called  upon  to  decide  the  issue  whether 
the  Treaty  of  1783  was  a  treaty  of  partition  or  not,  the  questions  in- 
volved therein  having  been  set  at  rest  by  the  subsequent  Treaty  of 


264  RIGHTS   AND   DUTIES  OF   NATIONS   IN  TIME  OF   PEACE       (Part  1 

1818,  nevertheless  the  Tribunal  could  not  forbear  to  consider  the  con- 
tention on  account  of  the  important  bearing  the  controversy  has  upon 
the  true  interpretation  of  the  Treaty  of  1818.  In  that  respect  the  Tri- 
bunal is  of  opinion : 

(a)  That  the  right  to  take  fish  was  accorded  as  a  condition  of  peace 
to  a  foreign  people ;  wherefore  the  British  negotiators  refused  to  place 
the  right  of  British  subjects  on  the  same  footing  with  those  of  Amer- 
ican inhabitants ;  and  further,  refused  to  insert  the  words  also  pro- 
posed by  Mr.  Adams — "continue  to  enjoy" — in  the  second  branch 
of  article  III  of  the  Treaty  of  1783; 

(b)  That  the  Treaty  of  1818  was  in  different  terms,  and  very  dif- 
ferent in  exteijt,  from  that  of  1783,  and  was  made  for  different  consid- 
erations.   It  was,  in  other  words,  a  new  grant.     *     *     * 

Now  therefore  this  Tribunal  decides  and  awards  as  follows : 
The  right  of  Great  Britain  to  make  regulations  without  the  consent 
of  the  United  States,  as  to  the  exercise  of  the  liberty  to  take  fish 
referred  to  in  article  I  of  the  Treaty  of  October  20,  1818,  in  the  form 
of  municipal  laws,  ordinances  or  rules  of  Great  Britain,  Canada  or 
Newfoundland    is    inherent    to    the    sovereignty    of     Great     Brit- 

3 «  Notwithstanding  tlie  rule  in  the  principal  case,  the  Oberlande?gericlit  of 
Cologne  decided  in  1914,  in  Aix  la  Chapelle-Maastricht  Railroad  Company  v. 
Thewis  (Royal  Netherland  Government,  Intervener),  that  the  treaty  of  June 
26,  1816,  between  Prussia  and  the  Netherlands  created  a  servitude  in  favor  of 
the  Netherland  government.     In  the  course  of  its  opinion,  the  court  said : 

"The  opinion  of  the  judge  of  first  instance,  to  the  effect  that  the  authority 
of  the  Netherlands  govenmient,  herewith  defined,  must  be  regarded  as 
a  mining  concession  which  has  been  transferred  to  the  defendant,  is  incorrect. 
The  plea  of  the  intervener,  that  in  conformity  with  all  the  circumstances  in 
the  case,  this  boundary  treaty  between  Prussia  and  the  Netherlands  bears  the 
character  of  an  agreement  in  international  law,  whereby  the  territorial 
sovereignty  of  the  two  neighboring  states  has  been  mutually  delimited,  must 
be  accepted.  Parts  of  the  communes  of  Kerkrade  and  Rolduc  fall  to  Prussia, 
but  the  Netherlands  government  retains  the  right  to  carry  on  mining  in  these 
ceded  parts.  This  means,  as  the  intervener  correctly  argues,  not  what  might 
be  termed  a  mining  concession  of  the  Netherland  state  granted  by  Prussia  in 
accordance  with  private  law,  but  the  exclusion  of  certain  rights  of  sovereignty 
over  the  ceded  parts  emanating  from  the  possession  of  territorial  sovereignty. 
In  this  case  a  portion  of  the  territorial  sovereignty  over  the  ceded  parts  has 
remained  in  the  possession  of  Holland,  namely,  in  so  far  as  the  right  to  mine 
coal  and  other  minerals  contained  in  this  coal  field  comes  into  question. 
Hereby  a  species  of  international  servitude  has  arisen,  whereby  Holland,  as  a 
lawfully  entitled  state,  has  the  right  to  exercise  its  own  legislative  jurisdiction 
and  police  supeiwision  with  regard  to  this  mine,  now  as  previously ;  that  is,  it 
has  real  sovereign  rights  with  regard  to  the  object  situated  within  the  terri- 
tory of  the  foreign  state.     See  Ullmann,  Yolkerrecht.  p.  320ff." 

For  the  text  of  this  case,  see  8  Zeitschrift  fiir  Yolkerrecht,  437,  English 
translation,  8  American  Journal  of  International  Law,  907   (1914). 


Ch.  4)  JURISDICTION   or   STATES  265 

CHAPTER  IV 
JURISDICTION  OF  STATES 


SECTION  1.— IN  GENERAI, 


CALDWELL  V.  VANVLISSENGEN. 
SAME  V.  VERBECK. 

SAME  V.  ROLFE. 
(Court  of  Chancery,  1851.    9  Hare.  415.) 

These  were  motions  on  the  part  of  the  plaintiffs  in  three  several  caus- 
es, for  injunctions  to  restrain  the  respective  defendants  from  using 
or  exercising,  within  the  Hmits  of  that  part  of  the  United  Kingdom 
called  England,  the  dominion  of  Wales,  and  the  town  of  Berwick-upon- 
Tweed,,  including  the  seas,  rivers  and  havens  thereof,  the  invention 
of  James  Lowe,  or  any  mode  of  process  for  the  propulsion  of  vessels 
merely  colourably  differing  therefrom,  and  from  using  or  employing. 
or  permitting  to  be  used  and  employed,  within  the  limits  aforesaid, 
any  vessel  fitted  or  provided  with  a  propeller  constructed  and  applied, 
without  the  license  of  the  plaintiffs,  according  to  the  form  and  mode 
respectively  described  in  the  specification  of  James  Lowe's  patent,  or 
merely  colourably  dift'ering  therefrom,  and  particularly  from  permitting 
certain  vessels  mentioned  in  the  several  notices  of  motion,  or  any  other 
vessel  or  vessels  within  the  limits  aforesaid,  under  the  command  or 
control  of  the  defendants,  and  fitted  or  provided  with  a  propeller  or 
propellers  constructed  and  applied,  without  thd  license  of  the  plaintiff's, 
according  to  the  form  and  mode  aforesaid,  or  merely  colourably  differ- 
ing therefrom,  to  proceed  on  any  voyage  or  voyages. 

The  plaintiffs  were  the  assignees  of  James  Lowe's  patent  (which  was 
granted  in  the  year  1838)  for  a  mode  of  propelling  vessels  by  means  of 
one  or  more  curved  blades,  set  or  affixed  on  a  revolving  shaft  below  the 
water-line  of  the  vessel,  and  running  from  stem  to  stern  of  the  vessel. 
The  defendants  in  the  two  first  causes  were  the  owners  of  vessels  call- 
ed the  "Burgemeester  Huidekoper"  and  "Stad  Dordrecht,"  trading  be- 
tween Holland  and  this  country ;  and  the  defendant  in  the  third  cause 
was  or  had  been  the  captain  of  a  vessel  called  the  "Fyenoord,"  en- 
gaged in  the  same  trade.     *     *     * 

The  Vicu-Chancellor  [Sir  G.  J.  TuRNivRj.^     *     *     *     It  was  in- 

^  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


26G  RIGHTS   AND   DUTIES   OF   NATIONS    IN   TIME   OF   PEACE       (Part  1 

sisted,  on  the  part  of  the  defendants,  that  there  was  in  each  of  these 
cases  a  sufficient  ground  for  the  interference  of  the  Court  being  with- 
held. *  *  *  It  is  to  be  observed  that  in  none  of  these  cases  is  it 
attempted  to  be  denied,  on  the  part  of  the  defendants,  that  the  screw 
propellers  used  in  their  respective  vessels  fall  within  the  invention  claim- 
ed by  this  patent ;  and,  after  anxiously  considering  the  case,  I  am  of 
opinion  that  I  cannot  withhold  these  injunctions  upon  the  grounds  which 
are  stated. 

I  take  the  rule  to  be  universal  that  foreigners  are  in  all  cases  subject 
to  the  laws  of  the  country  in  which  they  may  happen  to  be ;  and  if  in 
any  case,  when  they  are  out  of  their  own  country,  their  rights  are 
regulated  and  governed  by  their  own  laws,  I  take  it  to  be  not  by  force 
of  those  laws  themselves,  but  by  the  law  of  the  country  in  which  they 
may  be  adopting  those  laws  as  part  of  their  own  law  for  the  purpose 
of  determining  such  rights.  Mr.  Justice  Story,  in  his  treatise  on  the 
Conflict  of  Laws,  addressing  .himself  to  this  subject  (s.  541),  says: 
"In  regard  to  foreigners  resident  in  a  country,,  although  some  jurists 
deny  the  right  of  a  nation  generally  to  legislate  over  them,  it  would 
seem  clear,  upon  general  principles  of  international  law,  that  such  a 
right  does  exist,  and  the  extent  to  which  it  should  be  exercised  is  a 
matter  purely  of  municipal  arrangement  and  policy.  Huberus  lays 
down  the  doctrine  in  his  second  axiom:  'All  persons  who  are  found 
within  the  limits  of  a  government,  whether  their  residence  is  permanent 
or  temporary,  are  to  be  deemed  subject  thereof.'  Boullenois  says : 
'That  the  sovereign  has  a  right  to  make  laws  to  bind  foreigners  in  re- 
lation to  their  property  within  his  domains,  in  relation  to  contracts  and 
acts  done  therein,  and  in  relation  to  judicial  proceedings  if  they  im- 
plead before  his  tribunals.  And,  further,  that  he  may  of  strict  right 
make  laws  for  all  foreigners  who  merely  pass  through  his  domains, 
although  commonly  this  authority  is  exercised  only  as  to  matters  of 
police.'  Vattel  asserts  the  same  general  doctrine,  and  says  that  foreign- 
ers are  subject  to  the  1^'s  of  a  state  while  they  reside  in  it"  (page  789, 
2d  Edit.  Lond.).  In  this  country,  indeed,  the  position  of  foreigners  is 
not  left  to  rest  upon  this  general  law,  but  is  provided  for  by  statute; 
for,  by  the  32  Hen.  8,  c.  16,  s.  9,  it  is  enacted:  "That  every  alien  and 
stranger  born  out  of  the  King's  obeisance,  not  being  denizen,  which  now 
or  hereafter  shallcome  in  or  to  this  realm  or  elsewhere  within  the 
King's  dominions  shall,  after  the  1st  of  September  next  coming,  be 
bounden  by  and  unto  the  laws  and  statutes  of  this  realm,  and  to  all 
and  singular  the  contents  of  the  same."  Natural  justice,  indeed,  seems 
to  require  that  this  should  be  the  case :  when  countries  extend  to  for- 
eigners the  protection  of  their  laws  they  may  well  require  obedience  to 
those  laws  as  the  price  of  that  protection.  These  defendants,  there- 
fore, whilst  in  this  country,  must,  I  think,  be  subject  to  its 
laws.     *     *     * 


'Ch.  4)  JUKISDICTION  OF   STATES  267 

We  must  consider,  then,  what  is  the  effect  of  this  grant?  It  purports 
to  give  to  the  grantee,  his  executors,  administrators  and  assigns,  spe- 
cial Hcense,  full  power,  sole  privilege  and  authority,  that  he,  his  execu- 
tors, administrators  and  assigns,  and  every  of  them,  by  himself  and 
themselves,  or  by  his  and  their  deputy  and  deputies,  servants  or  agents, 
or  such  others  as  he,  his  executors,  administrators  or  assigns  shall 
at  any  time  agree  with,  and  no  others,  from  time  to  time,  and  at  all 
times  thereafter,  during  the  term  of  years  therein  expressed,  lawfully 
to  make,  use,  exercise  and  vend  his  said  invention,  within  that  part  of 
the  United  Kingdom  of  Great  Britain  and  Ireland  called  England,  the 
dominion  of  Wales,  and  the  town  of  Berwick-upon-Tweed.  x\nd  un- 
doubtedly this  grant  gives  to  the  grantee  a  right  of  action  against  per- 
sons who  infringe  upon  the  sole  and  exclusive  right  purported  to  Ue 
granted  by  it.  Foreigners  coming  into  this  country  are,  as  I  apprehend, 
subject  to  actions  for  injuries  done  by  them  whilst  Tiere  to  the  subjects 
of  the  Crown.  Why  then  are  they  not  to  be  subject  to  actions  for  the 
injury  done  by  their  infringing  upon  the  sole  and  exclusive  right,  which 
I  have  shewn  to  be  grant-ed  in  conformity  with  the  laws  and  constitu- 
tion of  this  country?  And  if  they  are  subject  to  such  actions,  why  is 
not  the  power  of  this  Court,  which  is  founded  upon  the  insufBciency  of 
the  legal  remedy,  to  be  applied  against  them  as  well  as  against  the 
subjects  of  the  Crown.  It  was  said  that  the  prohibitory  words  of  the 
patent  were  addressed  only  to  the  subjects  of  the  Crown;  but  these 
prohibitory  words  are  in  aid  of  the  grant  and  not  in  derogation  of 
it;  and  they  were  probably  introduced  at  a  time  when  the  prohibition 
of  the  Crown  could  be  enforced  -personally  against  parties  who  ven- 
tured to  disobey  it.  The  language  of  this  part  of  the  patent,  therefore, 
does  not  appear  to  me  to  alter  the  case,     *     *     * 

In  the  argument  on  the  part  of  the  defendants  much  was  said  on 
the  hardship  of  this  Court's  interfering  against  them,  and  upon  the  in- 
conveniences which  would  result  from  it;  and  some  reference  was 
made  to  the  policy  of  this  country :  but  it  must  be  remembered  that 
British  ships  certainly  cannot  use  this  invention  without  the  license  of 
the  patentees,  and  the  burthens  incident  to  such  license ;  and  foreign- 
ers cannot,  I  think,  justly  complain  that  their  ships  are  not  permitted 
to  enjoy,  without  license  and  without  payment,  advantages  which  the 
ships  of  this  country  cannot  enjoy  otherwise  than  under  license  and 
upon  payment.  It  must  be  remembered  that  foreigners  may  take  out 
patents  in  this  country,  and  thus  secure  to  themselves  the  exclusive  use 
of  their  inventions  within  Her  Majesty's  dominions ;  and  that,  if  they 
neglect  to  do  so,  they,  to  this  extent,  withhold  their  invention  from  the 
subjects  of  this  country.  It  is  to  be  observed  also  that  the  enforcement 
of  the  exclusive  right  under  a  patent  does  not  take  away  from  foreign- 
ers any  privilege  which  they  ever  enjoyed  in  this  country;  for,  if 
the  invention  was  used  by  them  in  this  country  before  the  granting  of 
the  patent,  the  patent,  I  apprehend,  would  be  invalid. 


2*J8  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

One  principal  ground  of  inconvenience  suggested  was  that,  if  for- 
eign ships  were  restrained  from  using  this  invention  in  these  dominions, 
English  ships  might  equally  be  restrained  from  using  it  in  foreign  do- 
minions; but  I  think  this  argument  resolves  itself  into  a  question  of 
national  policy,  and  it  is  for  the  Legislature,  and  not  for  the  Courts,  to 
deal  with  that  question :  my  duty  is  to  administer  the  law  and  not  to 
make  it. 

Upon  the  grounds  which  I  have  referred  to  I  think  that  the  facts 
stated  in  the  affidavits  and  answer  do  not  furnish  sufficient  grounds  for 
refusing  these  injunctions.     *      *      *  2 


THE  BETSEY. 

GLASS  et  al.  v.  THE  BETSEY  et  al. 

(Supreme  Court  of  the  United  States,  1794.    3  Dall.  6,  1  L.  Ed.  485.) 

Captain  Pierre  Arcade  Johannene,  the  commander  of  a  French  priva- 
teer, called  the  Citizen  Genet,  having  captured  as  prize,  on  the  high 
seas,  the  sloop  Betsey,  sent  the  vessel  into  Baltimore ;  but  upon  her  ar- 
rival there,  the  owners  of  the  sloop  and  her  cargo  filed  a  libel  in  the 
District  Court  of  Maryland,  claiming  restitution,  because  the  vessel 
belonged  to  subjects  of  the  king  of  Sweden,  a  neutral  power,  and  the 
cargo  was  owned  jointly  by  Swedes  and  Americans.  The  captor  filed 
a  plea  to  the  jurisdiction  of  the  court,  which,  after  argument,  was  al- 
lowed ;  the  Circuit  Court  affirmed  the  decree ;  and  thereupon,  the  pres- 
ent appeal  was  instituted. 

The  general  question  was — Whether  under  the  circumstances  of  this 
case,  an  American  Court  of  Admiralty,  had  jurisdiction  to  entertain  the 
complaint,  or  libel  of  the  owners,  and  to' decree  restitution  of  the  pro]>- 

£»'j"lT    p  't^  -P  ^T* 

The  Court,  having  kept  the  cause  under  advisement  for  several  days, 
informed  the  counsel,  that  besides  the  question  of  jurisdiction  as  to  the 
District  Court,  another  question  fairly  arose  upon  the  record, — whether 

2  "The  case  of  Caldwell  v.  Vlissengen.  9  Hare.  416.  9  Eng.  L.  and  Eq.  Rep. 
51,  and  the  statute  passed  by  the  British  Parliament  in  consequence  of  that 
decision,  have  been  referred  to  and  relied  on  in  the  argument.  The  reasoning 
of  the  Vice  Chancellor  is  certainly  entitled  to  much  respect,  and  it  is  not 
for  this  court  to  question  the  correctness  of  the  decision,  or  the  construction 
given  to  the  statute  of  Henry  VIII. 

"But  we  must  interpret  our  patent  laws  wit!)  reference  to  our  own  Constitu- 
tion and  laws  and  judicial  decisions.  And  the  court  are  of  opinion  that  the 
rights  of  property  and  exclusive  use  granted  to  a  patentee  does  not  extend  to  a 
foreign  vessel  lawfully  entering  one  of  our  ports ;  and  that  the  use  of  such  im- 
provement, in  the  construction,  fitting  out,  or  equipment  of  such  vessel,  while 
she  is  coming  into  or  going  out  of  a  port  of  the  United  States,  is  not  an  in- 
fringement of  the  rights  of  an  American  patentee,  provided  it  was  placed  ui)on 
her  in  a  foreign  port,  and  authorized  by  the  laws  of  the  country  to  which  she 
belongs."  Per  Mr.  Chief  Justice  Taney  in  Brown  v.  Duchesne,  19  How.  183, 
198,  199,  15  L.  Ed.  593  (1S56). 


Ch.  4)  JURISDICTION   OF   STATES  269 

any  foreign  nation  had  a  right,  without  the  positive  stipulations  of 
a  treaty,  to  estabhsh  in  this  country,  an  admirahy  jurisdiction  for  tak- 
ing cognizance  of  prizes  captured  on  the  high  seas,  by  its  subjects  or 
citizens,  from  its  enemies  ?  Though  this  question  had  not  been  agitated, 
the  court  deemed  it  of  great  pubHc  importance  to  be  decided;  and, 
meaning  to  decide  it,  they  declared  a  desire  to  hear  it  discussed.  Du 
Ponceau,  however,  observed,  that  the  parties  to  the  appeal  did  not 
conceive  themselves  interested  in  the  point ;  and  that  the  French  minis- 
ter had  given  no  instructions  for  arguing  it.  Upon  which  Jay,  Chief 
Justice,  proceeded  to  deliver  the  following  unanimous  opinion. 

By  the  Court:  The  Judges  being  decidedly  of  opinion,  that  every 
JDistrict  Court  in  the  United  States,  possesses  all  the  powers  of  a.  court 
of^  Admiralty,  whether  considered  as  an  instance,  or  as  a  prize  court; 
and  that  the  plea  of  the  aforesaid  appellee,  Pierre  Arcade  Johannene, 
to  the  jurisdiction  of  the  District  Court  of  Maryland,  is  insufficient: 
Therefore  it  is  considered  by  the  Supreme  Court  aforesaid,  and  now 
finally  decreed  and  adjudged  by  the  same,  that  the  said  plea  be,  and 
the  same  is  hereby  overruled  and  dismissed,  and  that  the  decree  of  the 
said  District  Court  of  Maryland,  founded  thereon,  be,  and  the  same  is 
hereby  revoked,  reversed  and  annulled. 

And  the  said  Supreme  Court  being  further  clearly  of  opinion,  that 
the  District  Court  of  Maryland  aforesaid,  has  jurisdiction  competent  to 
inquire,  and  to  decide,  whether,  in  the  present  case,  restitution  ought  to 
be  made  to  the  claimants,  or  either  of  them,  in  whole  or  in  part  (that  is 
whether  such  restitution  can  be  made  consistently  with  the  laws  of  na- 
tions and  the  treaties  and  laws  of  the  United  States)  therefore  it  is 
ordered  and  adjudged  that  the  said  District  Court  of  Maryland  do  pro- 
ceed to  determine  upon  the  libel  of  the  said  Alexander  S.  Glass,  and  oth- 
ers, agreeably  to  law  and  right,  the  said  plea  to  the  jurisdiction  of 
the  said  court,  notwithstanding. 

And  the  said  Supreme  Court  being-  further  of  opinion,  that  no  foreign 
power  can  of  right  institute,  or  erect,  any  court  of  judicature  of  any 
kind,  within  the  jurisdiction  of  the  United  States,  but  such  only  as  may 
be  warranted  by,  and  be  in  pursuance  of  treaties,  it  is  thei^efore  decreed 
and  adjudged  that  the  admiralty  jurisdiction,  which  has  been  exercised 
inthe  United  States  by  the  Consuls  of  France,  not  being  so  warranted, 
is  notof  right. 

It  is  further  ordered  by  the  said  Supreme  Court,  that  this  cause  be, 
and  it  is  hereby,  remanded  to  the  District  Court,  for  the  Maryland 
District,  for  a  final  decision,  and  that  the  several  parties  to  the  same  do 
each  pay  their  own  costs. 


270  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME   OP  PEACE       (Part  1 

STRATHEARN  S.  S.  CO.,  Limited,  v.  DILLON. 

(Supreme  Court  of  the  United  States,(l^a)  252  U.  S.  348,  40  Sup.  Ct.  350,  64 

L.  Ed.  (jOTT) 

Mr.  Justice  Day  delivered  the  opinion  of  the  court.^ 

This  case  presents  qviestions  arising  under  the  Seamen's  Act  of 
March  4,  1915,  c.  153,  38  Stat.  1164.  It  appears  that  Dillon,  the  re- 
spondent, was  a  British  subject,  and  shipped  at  Liverpool  on  the  eighth 
of  May,  1916,  on  a  British  vessel.  The  shipping  articles  provided  for 
a  voyage  of  not  exceeding  three  years^  commencing  at  Liverpool  and 
ending  at  such  port  in  the  United  Kingdom  as  might  be  required  by 
the  master,  the  voyage  including  ports  of  the  United  States.  The 
wages  which  were  fixed  by  the  articles  were  made  payable  at  the  end  of 
the  voyage.  At  the  time  of  the  demand  for  one-half  wages,  and  at  the 
time  of  the  beginning  of  the  action,  the  period  of  the  voyage  had  not 
been  reached.  The  articles  provided  that  no  cash  should  be  advanced 
abroad  or  liberty  granted  other  than  at  the  pleasure  of  the  master. 
This,  it  is  admitted,  was  a  valid  contract  for  the  payment  of  wages 
under  the  laws  of  Great  Britain.  The  ship  arrived  at  the  Port  of  Pen- 
sacola,  Florida,  on  July  31,  J9T^and  while  she  was  in  that  port,  Dil- 
lon, still  in  the  employ  of  tneship,  demanded  from  her  master  one-  _ 
half  part  of  the  wages  theretofore  earned,  and  payment  was  refused. 
Dillon  had  received  nothing  for  about  two  months,  and  after  the  re- 
fusal of  the  master  to  comply  with  his  demand  for  one-half  wages,  he 
filed  in  the  District  Court  of  the  United  States  a  libel  against  the  ship, 
claiming  $125.00,  the  amount  of  wages  earned  at  the  time  of  de- 
mand and  refusal. 

The  District  Court  found  against  Dillon  upon  the  ground  that  his 
demand  was  premature.  The  Circuit  Court  of  Appeals  reversed  this 
decision,  and  held  that  Dillon  was  entitled  to  recover.  256  Fed.  631, 
168  C.  C.  A.  25.  A  writ  of  certiorari  brings  before  us  for  review  the 
decree  of  the  Circuit  Court  of  Appeals. 

In  Sandberg  v.  McDonald,  248  U.  S.  185,  39  Sup.  Ct.  84,  6Z  L.  Ed. 
200,  and  Neilson  v.  Rhine  Shipping  Co.,  248  U.  S.  205,  39  Sup.  Ct. 
89,  63  L.  Ed.  208,  we  had  occasion  to  deal  with  section  11  of  the  Sea- 
men's Act  (Comp.  St.  §  8323),  and  held  that  it  did  not  invalidate  ad- 
vancement of  seamen's  wages  in  foreign  countries  when  legal  where 
made.  The  instant  case  requires  us  to  consider  now  section  4  of  the 
same  act  (Comp.  St.  §  8322).  That  section  amends  section  4530, 
Rev.  Stats.  (Comp.  St.  §  8322),  and  so  far  as  pertinent  provides : 

"Sec.  4530.  Every  seaman  on  a  vessel  of  the  United^Slates  shall 
be  entitled  to  receive  on  dernand  from  the  master  of  the  vessel  to  which 
he  belongs  one-half  part  of  the  wages  which  he  shall  have  then  earned  at 
every  port  where  such  vessel,  after  the  voyage  has  been  commenced, 

3  Part  of  tlie  opinion  is  omitted. 


Ch.  4)  JURISDICTION   OF   STATES  271 

shall  load  or  deliver  cargo  before  the  voyage  is  ended  and  all  stipu- 
lations in  the  contract  to  the  contrary  shall  be  void:  Provided,  such  a 
demand  shall  not  be  made  before  the  expiration  of,  nor  oftener  than 
once  in  five  days.  Any  failure  on  the  part_of  th^  master  to  comply 
w^ith  this  demand  shall  release  the  seaman  from  his  contract,  and  he 
shall  be  entitled  to  full  payment  of  wages  earned.  *  *  *  And  pro- 
vided further,  that  this  section  shall  apply  to  seamen  on  foreign  ves- 
sels while  in  harbors  of  the  United  States,  and  the  courts  of  the  United 
States  shall  be  open  to  such  seamen  for  its  enforcement." 

This  section  has  to  do  with  the  recovery  of  wages  by  seamen,  and 
by  its  terms  gives  to  every  seaman  on  a  vessel  of  the  United  States  the 
right  to  demand  one-half  the  wages  which  he  shall  have  then  earned  at 
every  port  where  such  vessel,  after  the  voyage  has  been  commenced, 
shall  load  or  deliver  cargo  before  the  end  of  the  voyage,  and  stipula- 
tions in  the  contract  to  the  contrary  are  declared  to  be  void.  A  fail- 
ure of  the  master  to  comply  with  the  demand  releases  the  seaman  from 
his  contract  and  entitles  him  to  recover  full  payment  of  the  wages,  and 
the  section  is  made  applicable  to  seamen  on  foreign  vessels  while  in 
harbors  of  the  United  States,  and  the  courts  of  the  United  States  are 
open  to  such  seamen  for  enforcement  of  the  act. 

This  section  is  an  amendment  of  section  4530  of  the  Revised  Stat- 
utes, it  was  intended  to  supplant  that  section,  as  amended  by  the  Act 
of  December  21,  1898,  c..28,  30  Stat.  756,  which  provided:  "Every 
seaman  on  a  vessel  of  the  United  States  shall  be  entitled  to  receive 
from  the  master  of  the  vessel -to  which  he  belongs  one-half  part  of  the 
wages  which  shall  be  due  him  at  every  port  where  such  vessel,  after 
the  voyage  has  been  commenced,  shall  load  or  deliver  cargo  before  the 
voyage  is  ended  unless  the  contrary  be  expressly  stipulated  in  the 
contract,"  etc. 

The  section,  of  which  the  statute  now  under  consideration  is  an 
amendment,  expressly  excepted  from  the  right  to  recover  one-half  of 
the  wages  those  cases  in  which  the  contract  otherwise  provided.  In 
the  amended  section  all  such  contract  provisions  are  expressly  rendered 
void,  and  the  right  to  recover  is  given  the  seamen  notwithstanding 
contractual  obligations  to  the  contrary.  The  language  applies  to  all 
seamen  on  vessels  of  the  United  States,  and  the  second  proviso  of  the 
section  as  it  now  reads  makes  it  applicable  to  seamen  on  foreign  ves- 
sels while  in  harbors  of  the  United  States.  The  proviso  does  not  stop 
there,  for  it  contains  the  express  provision  that  the  courts  of  the 
United  States  shall  be  open  to  seamen  on  foreign  vessels  for  its  en- 
forcement. The  latter  provision  is  of  the  utmost  importance  in  de- 
termining the  proper  construction  of  this  section  of  the  act.  It  mani- 
fests the  purpose  of  Congress  to  give  the  benefit  of  the  act  to  seamen 
on  foreign  vessels,  and  to  open  the  doors  of  the  federal  courts  to  for- 
eign seamen.  No  such  provision  was  necessary  as  to  American  seamen 
for  they  had  the  right  independently  of  this  statute  to  seek  redress 
in  the  courts  of  the  United  States,  and,  if  it  were  the  intention  of 


272  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

Congress  to  limit  the  provision  of  the  act  to  American  seamen,  this  fea- 
ture would  have  been  wholly  superfluous. 

It  is  said  that  it  is  the  purpose  to  limit  the  benefit  of  the  act  to  Amer- 
ican seamen,  notwithstanding  this  provision  giving  access  to  seamen  on 
foreign  vessels  to  the  courts  of  the  United  States,  because  of  the 
title  of  the  act  in  which  its  purpose  is  expressed  "to  promote  the  wel- 
fare of  American  seamen  in  the  merchant  marine  of  the  United 
States."  But  the  title  is  more  than  this,  and  not  only  declares  the 
purposes  to  promote  the  welfare  of  American  seamen  but  further  to 
abolish  arrest  and  imprisonment  as  a  penalty  for  desertion  and  to  se- 
cure the  abrogation  of  treaty  provisions  in  relation  thereto;  and  to 
promote  safety  at  sea.  But  the  title  of  an  act  cannot  limit  the  plain 
meaning  of  its  text,  although  it  may  be  looked  to  to  aid  in  construction 
in  cases  of  doubt.  Cornell  v.  Coyne,  192  U.  S.  418,  530,  24  Sup.  Ct. 
383,  48  L.  Ed.  504',  and  cases  cited.  Apart  from  the  text,  which  we 
think  plain,  it.  is  by  no  means  clear  that  if  the  act  were  given  a  con- 
struction to  limit  its  application  to  American  seamen  only,  the  purposes 
of  Congress  would  be  subserved,  for  such  limited  construction  would 
have  a  tendency  to  prevent  the  employment  of  American  seamen,  and 
to  promote  the  engagement  of  those  who  were  not  entitled  to  sue  for 
one-half  wages  under  the  provisions  of  the  law.  But,  taking  the  pro- 
visions of  the  act  as  the  same  are  written,  we  think  it  plain  that  it_ 
manifests  the  purpose  of  Congress  to  place  American  and  foreign 
seamen  on  an  equality  of  right  in  so  far  as  the  privileges  of  this  section 
are  concerned,  with  equal  opportunity  to  resort  to  the  courts  of  the 
Unite?  States  lor  the  enforcement  of  the  act.  Before  the  amendment, 
as  we  have  already  pointed  out,  the  right  to  recover  one-half  the  wages 
could  not  be  enforced  in  face  of  a  contractual  obligation  to  the  con- 
trary. Congress,  for  reasons  which  it  deemicd  sufficient,  amended  the 
act  so  as  to  permit  the  recovery  upon  the  conditions  named  in  the  stat- 
ute. In  the  case  of  Sandberg  v.  AIcDonald.  248  U.  S.  185,  39  Sup.  Ct. 
84,  63  L.  Ed.  200,  supra,  we  found  no  purpose  manifested  by  Congress 
in  section  11  to  interfere  with  wages  advanced  in  foreign  ports  under 
contracts  legal  where  made.  That  section  dealt  with  advancements, 
and  contained  no  provision  such  as  we  find  in  section  4.  Under  section 
4  all  contracts  are  avoided  which  run  counter  to  the  purposes  of  the 
statute.  Whether  consideration  for  contractual  rights  under  engage- 
ments legally  made  in  foreign  countries  would  suggest  a  different 
course  is  not  our  province  to  inquire.  It  is  sufficient  to  say  that  Con- 
gress has  otherwise  declared  by  the  positive  terms  of  this  enactment, 
and  if  it  had  authority  to  do  so,  the  law  is  enforceable  in  the  courts. 

We  come  then  to  consider  the  contention  that  this  construction  ren- 
ders the  statute  unconstitutional  as  being  destructive  of  contract  rights. 
But  we  think  this  contention  must  be  decided  adversely  to  the  petitioner 
upon  the  authority  of  previous  cases  in  this  court.  The  matter  was 
fully  considered  in  Patterson  v.  Bark  Eudora,  190  U.  S.  169,  23  Sup. 
Ct.  821,  47  L.  Ed.  1002,  in  which  the  previous  decisions  of  this  court 


Ch.  4)  JURISDICTION   OF   STATES  273 

were  reviewed,  and  the  conclusion  reached  that  the  jurisdiction,  of 
this  Government  over  foreign  nierchajnt.v:f^seJsJjiJmr_ports.JKas--such 
-as  to  give  authority  to  Congress  to  make  provisions  of  the  character 
now  under  consideration ;  that  it  was  for  this  Government  to  determine 
upon  what  terms  and  conditions  vessels  of  other  countries  might  be 
permitted  to  enter  our  harbors,  and  to  impose  conditions  upon  the 
shipment  of  sailors  in  our  own  ports,  and  make  them  applicable  to 
foreign  as  well  as  domestic  vessels.  Upon  the  authority  of  that  case, 
and  others  cited  in  the  opinion  therein,  we  have  no  doubt  as  to  the 
authority  of  Congress  to  pass  a  statute  of  this  sort,  applicable  to  for- 
eign vessels  in  our  ports  and  controlling  the  employment  and  payment 
of  seamen  as  a  condition  of  the  right  of  such  foreign  vessels  to 
enter  and  use  the  ports  of  the  United  States. 

But,  it  is  insisted,  that  Dillon's  action  was  premature  as  he  made  a 
demand  upon  the  master  within  less  than  five  days  after  the  vessel  ar- 
rived in  an  American  port.  This  contention  was  sustained  in  the 
District  Court,  but  it  was  ruled  otherwise  in  the  Court  of  Ap- 
peals.    *     *     * 

We  agree  with  the  Circuit  Court  of  Appeals  of  the  Fifth  Circuit, 
whose  judgment  wq  are  now  reviewing,  that  the  demand  was  not  pre- 
mature. It  is  true  that  the  Circuit  Court  of  Appeals  for  the  Second 
Circuit  held  in  the  case  of  The  Itaher,  257  Fed.  712,  168  C.  C.  A. 
662,  that  demand,  made  before  the  vessel  had  been  in  port  for  five 
days,  was  premature;  this  was  upon  the  theory  that  the  law  was  not 
in  force  until  the  vessel  had  arrived  in  a  port  of  the  United  States. 
But,  the  limitation  upon  demand  has  no  reference  to  the  length  of  stay 
in  the  domestic  port.  The  right  to  recover  wages  is  controlled  by  the 
provlsrons  of  the  statute  and  includes  wages  earned  from  the  begin- 
ning of  the  voyage.  It  is  the  right  to  demand!  and  recover  such  wages 
with  the  limitation  of  the  intervals  of  demand  as  laid  down  in  the 
statute,  which  is  given  to  the  seaman  while  the  ship  is  in  a  harbor  of  the 
United  States. 

We  find  no  error  in  the  decree  of  the  Circuit  Court  of  Appeals  and 
the  same  is  affirmed. 


THE  CREOLE. 

(American-British  Claims  Commission,  1855.    Rep.  Decisions  of  Com'n,  241.) 

Bates,  Umpire.  This  case  having  been  submitted  to  the  umpire 
for  his  decision,  he  hereby  reports  that  the  claim  has  grown  out  of 
the  following  circumstances : 

The  American  brig  Creole,  Captain  Ensor,  sailed  from  Hampton 

Roads,  in  the  State  of  Virginia,  on  the  27th  October,  1841,  having 

on  board  one  hundred  and  thirty-five  slaves  bound  for  New  Orleans. 

On  the  7th  of  November,  at  nine  o'clock  in  the  evening,  a  portion  of 

Scott  Int.Law — 18 


274  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF  PEACE       (Part  1 

the  slaves  rose  against  the  officers,  crew,  and  passengers,  wounding 
severely  the  captain,  the  chief  mate  and  twT)  of  the  crew,  and  murder- 
ing one  of  the  passengers ;  the  mutineers,  having  got  complete  posses- 
sion of  the  vessel,  ordered  the  mate,  under  threat  of  instant  death 
should  he  disobey  or  deceive  them,  to  steer  for  Nassau,  in  the  island 
of  New  Providence,  where  the  brig  arrived  on  the  9th  November,  1841. 

The  American  consul  was  apprised  of  the  situation  of  the  vessel,  and 
requested  the  governor  to  take  measures  to  prevent  the  escape  of  the 
slaves,  and  to  have  the  murderers  secured.  The  consul  received  reply 
from  the  governor,  stating  that  under  the  circumstances  he  would  com- 
ply with  the  request. 

The  consul  went  on  board  the  brig,  placed  the  mate  in  command  in 
place  of  the  disabled  master,  and  found  the  slaves  all  quiet. 

About  noon  twenty  African  soldiers,  with  an  African  sergeant 
and  corporal,  commanded  by  a  white  officer,  came  on  board.  The 
officer  was  introduced  by  the  consul  to  the  mate  as  commanding  officer 
of  the  vessel. 

The  consul,  on  returning  to  the  shore,  was  summoned  to  attend  the 
governor  and  council,  who  were  in  session,  who  informed  the  consul 
that  they  had  come  to  the  following  decision  : 

"1st.  That  the  courts  of  law  have  no  jurisdiction  over  the  alleged 
offences. 

"2d.  That,  as  an  information  had  been  lodged  before  the  governor, 
charging  that  the  crime  of  murder  had  been  committed  on  board  said 
vessel  while  on  the  high  seas,  it  was  expedient  that  the  parties,  impli- 
cated in  so  grave  a  charge,  should  not  be  allowed  to  go  at  large,  and 
that  an  investigation  ought  therefore  to  be  made  into  the  charges,  and 
examinations  taken  on  oath ;  when,  if  it  should  appear  that  the  origi- 
nal information  was  correct,  and  that  a  murder  had  actually  been 
committed,  that  all  the  parties  implicated  in  such  crime,  or  other  acts 
of  violence,  should  be  detained  here  until  reference  could  be  made 
to  the  Secretary  of  State  to  ascertain  whether  the  parties  should  be  de- 
livered over  to  the  United  States  government ;  if  not,  how  otherwise  to 
dispose  of  them. 

"3d.  That  as  soon  as  such  examinations  should  be  taken,  all  per- 
sons on  board  the  Creole,  not  implicated  in  any  of  the  offences  al- 
leged to  have  been  committed  on  board  that  vessel,  must  be  released 
from  further  restraint." 

Then  two  magistrates  were  sent  on  board.  The  American  consul 
went  also.  The  examination  was  commenced  on  Tuesday,  the  9th,  and 
was  continued  on  Wednesday,  the  10th,  and  then  postponed  until  Fri- 
day, on  account  of  the  illness  of  Captain  Ensor.  On  Friday  morning 
it  was  abruptly,  and  without  any  explanation,  terminated. 

On  the  same  day,  a  large  number  of  boats  assembled  near  the  Creole, 
filled  with  colored  persons  armed  with  bludgeons.     They  were  under 

Scott  Int.Law 


Ch.  4)  JURISDICTION   OF   STATES  275 

the  immediate  command  of  the  pilot  who  took  the  vessel  into  the  port, 
who  was  an  officer  of  the  government,  and  a  colored  man.  A  sloop 
or  larger  launch  was  also  towed  from  the  shore  and  anchored  near  the 
brig.  The  sloop  was  filled  with  men  armed  with  clubs,  and  clubs  were 
passed  from  her  to  the  persons  in  the  boats.  A  vast  concourse  of  peo- 
ple were  collected  on  shore  opposite  the  brig. 

During  the  whole  time  the  officers  of  the  government  were  on  board 
.jthey  encouraged  the  insubordination  of  the  slaves. 

The  Americans  in  port  determined  to  unite  and  furnish  the  neces- 
sary aid  to  forward  the  vessel  and  negroes  to  New  Orleans.  The 
consul  and  the  officers  and  crews  of  two  other  American  vessels  had, 
in  fact,  united  with  the  officers,  men,  and  passengers  of  the  Creole 
to  effect  this.  They  were  to  conduct  her  first  to  Indian  quay,  Florida, 
where  there  was  a  vessel  of  war  of  the  United  States. 

On  Friday  morning,  the  consul  was  informed  that  attempts  would 
be  made  to  liberate  the  slaves  by  force,  and  from  the  mate  he  received 
information  of  the  threatening  state  of  things.  The  result  was,  the 
attorney  general  and  other  officers  went  on  board  the  Creole.  The 
slaves,  identified  as  on  board  the  vessel  concerned  in  the  mutiny,  were 
sent  on  shore,  and  the  residue  of  the  slaves  were  called  on  deck  by 
direction  of  the  attorney  general,  who  addressed  them  in  the  following 
terms :  "My  friends,"  or  "my  men,  you  have  been  detained  a  short 
time  on  board  the  Creole  for  the  purpose  of  ascertaining  what  individ- 
uals were  concerned  in  the  murder.  They  have  been  identified,  and 
will  be  detained.  The  rest  of  you  are  free,  and  at  liberty  to  go  on 
shore,  and  wherever  you  please." 

The  liberated  slaves,  assisted  by  the  magistrates,  were  then  taken 
on  board  the  boats,  and  when  landed  were  conducted  by  a  vast  as- 
semblage to  the  superintendent  of  police,  by  whom  their  names  were 
registered.  They  were  thus  forcibly  taken  from  the  custody  of  the 
master  of  the  Creole,  and  lost  to  the  claimants. 

I  need  not  refer  to  authorities  to  show  that  slavery,  however  odious 
and  contrary  to  the  principles  of  justice  and  humanity  may  be  estab- 
lished by  law  in  any  country ;  and,  having  been  so  established  in  many 
countries,  it  cannot  be  contrary  to  the  law  of  nations. 

The  Creole  was  on  a  voyage,  sanctioned  and  protected  by  the  laws 
of  the  United  States,  and  by  the  law  of  nations.  Her  right  to  navigate 
the  ocean  could  not  be  questioned,  and  as  growing  out  of  that  right, 
the  right  to  seek  shelter  or  enter  the  ports  of  a  friendly  power  in  case 
of  distress  or  any  unavoidable  necessity. 

A  vessel  navigating  the  ocean  carries  with  her  the  laws  of  her  own 
country,  so  far  as  relates  to  the  persons  and  property  on  board,  and 
to  a  certain  extent,  retains  those  rights  even  in  the  ports  of  the  foreign 
nations  she  may  visit.  Now,  this  being  the  state  of  the  law  of  nations, 
what  were  the  duties  of  the  authorities  at  Nassau  in  regard  to  the 
Creole?    It  is  submitted  that  mutineers  could  not  be  tried  by  the  courts 


276  RIGHTS  AND   DUTIES  OP  NATIONS   IN  TIME  OF  PEACE       (Part  1 

of  that  island,  the  crime  having  been  committed  on  the  high  seas.  All 
that  the  authorities  could  lawfully  do,  was  to  comply  with  the  request 
of  the  American  consul,  and  keep  the  mutineers  in  custody  until  a 
conveyance  could  be  found  for  sending  them  to  the  United  States. 

The  other  slaves,  being  perfectly  quiet,  and  under  the  command 
of  the  captain  and  owners,  and  on  board  an  American  ship,  the  au- 
thorities should  have  seen  that  they  *  were  protected  by  the  law  of 
nations ;  their  rights  under  which  cannot  be  abrogated  or  varied,  ei- 
ther by  the  emancipation  act  or  any  other  act  of  the  British  Parliament. 

Blackstone,  4th  volume,  speaking  of  the  law  of  nations,  states : 
"Whenever  any  question  arises,  which  is  properly  the  object  of  its 
jurisdiction,  such  law  is  here  adopted  in  its  full  extent  by  the  common 
law." 

The  municipal  law  of  England  cannot  authorize  a  magistrate  to 
violate  the  law  of  nations  by  invading  with  an  armed  force  the  ves- 
sel of  a  friendly  nation  that  has  committed  no  ofifence,  and  forcibly 
dissolving  the  relations  which  by  the  laws  of  his  country  the  captain 
is  bound  to  preserve  and  enforce  on  board. 

These  rights,  sanctioned  by  the  law  of  nations — viz.  the  right  to  navi- 
gate the  ocean,  and  to  seek  shelter  in  case  of  distress  or  other  unavoid- 
able circumstances,  and  to  retain  over  the  ship,  her  cargo,  and  passen- 
gers, the  laws  of  her  own  country — must  be  respected  by  all  nations; 
for  no  independent  nation  would  submit  to  their  violation. 

Having  read  all  the  authorities  referred  to  in  the  arguments  on  both 
sides,  I  have  come  to  the  conclusion  that  the  conduct  of  the  authorities 
^LiiaiSsau  was_in  violation  of  the  established  law  of  nations,  and  that 
the  claimants  are  justly  entitled  to  compensation  for  their  losses.  I 
therefore  award  to  the  undermentioned  parties,  their  assigns,  or  legal 
representatives,  the  sums  set  opposite  their  names,  due  on  the  15th  of 
January,  1855. '^ 

*  Meaning  the  owners. 

5  Se6  elaborate  opinion  on  the  same  subject  in  The  Brig  Enterprise,  pp. 
1S7-237,  and  the  shorter  one  in  The  Hermosa,  pp.  238-240,  Report  of  the  Com- 
mission. Compare  In  re  Moncan  (C.  C.)  14  Fed.  44  (1882),  and  In  re  Ah 
Kee  (D.  C.)  22  Fed.  519  (18S4). 

In  an  action  to  recover  insurance  effected  on  the  slaves  and  cargo  of  the 
Creole,  the  same  doctrine  was  enforced.  The  Supreme  Court  of  Louisiana  held 
inter  alia  that  where  slaves  were  shipped  from  one  part  of  the  United  States 
to  another,  and  they  rose  against  the  officer  of  the  vessel,  and  took  it  into  a 
British  port,  they  were  still  slaves,  though  in  a  state  of  insui'rectiou ;  that 
they  did  not  cease  to  be  the  property  of  their  owners,  though  the  right  of 
property  could-  not  be  asserted  in  a  British  court,  nor  enjoyed  within  the  ex- 
clusive influence  of  British  law.  McCargo  v.  N.  O.  Ins.  Co.,  10  Rob.  (La.) 
202.  312-332,  43  Am.  Dec.  180  (1845). 

"In  obedience  to  your  Lordship's  commands,  we  have  taken  the  papers  into 
consideration,  and  have  the  honor  to  report  that,  assuming  the  Industria  to 
have  come  into  Black  river,  in  the  island  of  Jamaica,  through  distress,  we 
apprehend  that  she  could  not  be  deemed  to  have  thereby  committed  any 
otience  against  the  laws  of  Great  Britain,  and  therefore  think  that  she  was  not 
liable  to  seizure  and  confiscation  by  the  civil  authorities  of  the  island.  We 
are,  however,  of  opinion,  that  she  might  have  been  seized  by  a  British  cruiser, 


Ch.  4)  JURISDICTION   OF   STATES  277 

duly  commissioned,  under  the  treaty  with  Spain  for  the  abolition  of  the 
slave-trade  and  carried  before  a  court  of  mixed  commission  for  adjudication. 

"The  prior  release  of  a  vessel  does  not  prevent  a  subsequent  lawful  seizure." 

Joint  Opinion  of  the  Queen's  Advocate,  Sir  John  Dodson,  and  the  Attorney 
and  Solicitor  General,  Sir  John  Campbell,  and  Sir  Thomas  Wilde,  on  the 
seizure  of  a  Spanish  vessel  which  had  put  into  a  port  of  Jamaica  in  distress 
with  five  slaves  on  board.  Opinion  dated  March  2,  1841,  addressed  to  the  right 
Honorable  Lord  J.  Russell.  William  Forsyth's  Cases  and  Opinions  on  Consti- 
tutional Law,  399.  400  (1869). 

To  the  same  effect  is  the  opinion  of  Hugh  S.  Legar6,  Attorney  General  of 
the  United  States,  in  the  case  of  The  Creole,  under  date  of  July  20,  1842 : 

"The  principle  is,  that  If  a  ves.sel  be  driven  by  stress  of  weather,  or  forced 
by  vis  major,  or,  in  short,  be  compelled  by  any  overruling  necessity,  to  take 
refuge  in  the  ports  of  another,  she  is  not  considered  as  subject  to  the  municipal 
law  of  that  other,  so  far  as  concerns  any  penalty,  prohibition,  tax,  or  in- 
capacity that  would  otherwise  be  incurred  by  entering  the  ports :  Provided 
she  do  nothing  further  to  violate  the  municipal  law  during  her  stay.  The 
comity  of  nations — which  is  the  usage,  the  common  law,  of  civilized  nations, 
and  a  breach  of  which  would  now  be  justly  regarded  as  a  grave  offence — has 
gone  very  far  on  this  point.  *  *  *  When  a  ship  is  driven  into  port  by 
stress  of  weather,  and  then  there  unloads  her  cargo,  she  is  not  bound  to  pay 
duties  or  customs  in  that  place,  because  she  came  there  by  force ;  nor  is  she 
liable  to  forfeiture ;  neither  are  duties  to  be  paid  on  goods  forcibly  driven  into 
port.  If  there  is  a  case  in  which  the  excuse  of  necessity  would  be  regarded 
with  suspicion,  and  received  with  disfavor,  it  is  undoubtedly  a  breach  of  block- 
ade, one  of  the  extreme  cases  of  the  law  of  war,  involving  in  its  own  nature  a 
necessity  that  would  seem  to  supersede  all  others.  Tet  Sir  William  Scott 
admits  it  to  be  a  good  plea  when  the  facts  fully  support  it.  See  5  Rob.  27, 
The  Fortune  (1803)."  Mr.  Legare  to  Lord  Ashburton,  4  Op.  Attys.  Gen.  98, 
104  (1842). 

"But  despite  these  opinions,  and  notwithstanding  that  this  principle  is  fre- 
quently cited  with  approval,  it  would  seem  that  such  an  immunity  is  not  well 
founded,  or  in  any  sense  obligatory,  and  that  whilst  putting  into  port  under 
constraint  might  be  a  good  ground  in  comity  for  excusing  such  infringements 
of  local  regulations  as  were  due  to  the  exigencies  of  her  position  (such  as 
harbour  or  quarantine  rules),  it  would  certainly  not  carry  any  legal  right  to 
exemption  from  the  local  law  or  local  jurisdiction.  Nor  would  such  an  ex- 
cuse, in  any  case,  serve  to  exempt  a  vessel  from  the  conseqviences  of  offences 
previously  committed  in  violation  of  the  law  of  nations.  The  Carlo  Alberto, 
Sirey,  Recueil,  part  1,  1852,  578."  Pitt  Cobbett's  Cases  and  Opinions  on  Inter- 
national Law,  part.  1,  Peace   (3d  edition,  1909)   283. 

Mr.  Dana,  in  his  edition  of  Wheaton's  International  Law,  (1866)  p.  167,  note, 
thus  criticises  the  decision  of  the  umpire  in  The  Creole :  "It  may  be  conceded, 
as  a  general  statement,  that  local  authorities  ought  to  give  active  aid  to  a 
master  in  defending  and  enforcing,  against  the  inmates  of  his  vessel,  the  rights 
with  which  his  own  nation  has  intrusted  him.  if  these  rights  are  of  a  char- 
acter generally  recognized  among  all  nations,  and  not  prohibited  by  the  law 
of  the  place.  But  it  may  well  admit  of  doubt,  whether  the  local  authorities 
must  give  active  aid  to  the  master  against  persons  on  board  his  vessel  who 
are  doing  no  more  than  peacefully  and  quietly  dissolving,  or  refusing  to 
recognize,  a  relation  which  exists  only  by  force  of  the  law  of  the  nation  to 
which  the  vessel  belongs,  if  the  law  is  peculiar  to  that  nation,  and  one  which 
the  law  of  the  other  country  regards  as  against  common  right  and  public 
morals.  The  local  authorities  might  not  interfere  to  dissolve  such  relation.s. 
where  the  peace  of  the  port  or  the  public  morals  ai-e  not  put  in  peril ;  but 
they  might,  it  would  seem,  decline  to  lend  force  to  compel  their  continuance." 

See,  also,  the  adverse  criticism  of  William  E.  Hall  in  his  International  Law 
(4th  edition,  1895)  p.  209,  and  note. 


278  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME   OF  PEACE       (Part  1 

SECTION  2.— IMMUNITY  FROM  JURISDICTION 
I.  States  and  Chiefs  of  State 


DE  HABER  v.  THE  QUEEN  OF  PORTUGAL. 

(Queen's  Bench,  1851.    17  Q.  B.  196.) 

The  plaintiff  commenced  an  action  of  debt  in  the  court  of  the  Lord 
iMayor  of  London  against  the  Queen  of  Portugal.  It  appears  that 
he  brought  action  for  £12,136  sterling  which  he  had  left  in  the  hands 
of  Ferreiri,  a  Lisbon  banker  and  which  Ferreiri  paid  over  to  the 
Portuguese  government.  The  plaintiff,  proceeding  according  to  the 
custom  of  foreign  attachment  in  London,  sent  out  a  summons  for  the 
defendant  to  appear.  The  defendant  being  called  and  not  appearing, 
the  plaintiff  alleged  that  Senhor  Guilherne  Candida  Xavier  De  Brito, 
of  London,  the  garnishee  had  money  and  effects  of  the  defendant  in 
his  hands,  and  prayed  to  attach  the  defendant  by  that  money.  The 
judge  awarded  an  attachment  as  prayed. 

Thereupon  the  award  was  obtained  to  show  cause  why  a  writ  of 
prohibition  should  not  issue  to  the  Lord  Mayor's  Court.® 

Lord  Campbell.  C.  J.,  in  this  term  (May  28tli),  delivered  the  judg- 
ment of  the  Court  in  both  cases. 

We  are  of  opinion  that  the  rule  for  a  prohibition  in  this  case  ought 
to  be  made  absolute.     *     *     * 

In  the  first  place,  it  is  quite  certain,  upon  general  principles,  and 
upon  the  authority  of  the  case  of  The  Duke  of  Brunswick  v.  The 
King  of  Hanover,  2  H,  L.  Cas.  1  [affirming  the  decree  of  the  Master 
of  the  Rolls  in  s.  c,  6  Beav.  1],  recently  decided  in  the  House  of 
Lords,  that  an  action  cannot  be  maintained  in  any  English  Court 
against  a  foreign  .potentate,  for  anything  done  or  omitted  to  be  done 
by  him  in  his  public  capacity  as  representative  of  the  nation  of  which 
he  is  the  head;  and  that  no  English  court  has  jurisdiction" to  entertain' 
any  complaints  against  him  in  that  capacity.  Redress  for  such  com- 
plaints affecting  a  British  subject  is  only  to  be  obtained  by  the  laws  and 
tribunals  of  the  country  which  the  foreign  potentate  rules,  or  by  the 
representations,  remonstrances  or  acts  of  the  British  Government.  To 
cite  a  foreign  potentate  in  a  municipal  court,  for  any  complaint  against 
him  in  his  public  capacity,  is  contrary  to  the  law  of  nations,  and  an 
insult  which  he  is  entitled  to  resent. 

The  statute  7  Anne,  c.  12,  passed  on  the  arrest  of  the  Russian  Am- 
bassador, to  appease  the  Czar,  has  always  been  said  to  be  merely  de- 
claratory of  the  law  of  nations,  recognised  and  enforced  by  our  mu- 

6  A  shortened  statement  of  the  case  is  substituted  for  that  of  the  original 
report  and  part  of  the  opinion  is  omitted. 


Ch.  4)  JURISDICTION   OF   STATES  279 

nicipal  law ;  and  it  •provides  (section  3)  that  all  process,  whereby  the 
person  of  any  ambassador,  or  of  his  domestic  servar^t,  may  be  ar- 
rested, or  his  goods  distrained  or  seized,  shall  be  utterly  null  and  void. 
On  the  occasion  of  the  outrage  which  gave  rise  to  the  statute.  Lord 
Holt  was  present  as  a  Privy  Councillor  to  advise  the  Government  as 
to  the  fit  steps  to  be  taken ;  and,  with  his  sanction,  seventeen  persons, 
who  had  been  concerned  in  arresting  the  ambassador,  were  committed 
to  prison  that  they  might  be  prosecuted  by  information  at  the  suit 
of  the  Attorney  General.  Can  we  doubt  that,  in  the  opinion  of  that 
great  Judge,  the  Sovereign  himself  would  have  been  considered  entitled 
to  the  same  protection,  immunity  and  privilege  as  the  minister  who 
represents  him?     *     *     * 

We  have  now  to  consider  whether  we  can  grant  the  prohibition  on 
the  application  of  the  Queen  of  Portugal  before  she  appears  in 'the 
Lord  Mayor's  Court.  The  plaintiff's  counsel  argue  that,  before  she 
can  be  heard,  she  must  appear  and  be  put  in  bail,  in  the  alternative,  to 
pay  or  to  render.  It  would  be  very  much  to  be  lamented  if,  before  do- 
ing justice  to  her,  we  were  obliged  to  impose  a  condition  upon  her 
which  would  be  a  further  indignity,  and  a  further  violation  of  the 
law  of  nations.  If  the  rule  were  that  the  application  for  a  prohibition 
can  only  be  by  the  defendant  after  appearance,  we  should  have  had 
little  scruple  in  making  this  an  exception  to  the  rule.  But  we  find  it 
laid  down  in  books  of  the  highest  authority  that,  where  the  court  to 
which  the  prohibition  is  to  go  has  no  jurisdiction,  a  prohibition  may 
be  granted  upon  the  request  of  a  stranger,  as  well  as  of  the  defendant 
himself.  *  *  *  Therefore  this  court,  vested  with  the  power  of 
preventing  all  inferior  courts  from  exceeding  their  jurisdiction  to  the 
prejudice  of  the  Queen  or  her  subjects,  is  bound  to  interfere  when 
duly  informed  of  such  an  excess  of  jurisdiction.  What  has  been  done 
in  this  case  by  the  Lord  Mayor's  Court  must  be  considered  as  pe- 
culiarly in  contempt  of  the  Crown,  it  being  an  insult  to  an  independent 
sovereign,  giving  that  sovereign  just  cause  of  complaint  to  the  British 
Government,  and  having  a  tendency  to  bring  about  a  misunderstanding 
between  our  own  gracious  Sovereign  and  her  ally  the  Queen  of  Portu- 
gal. 

Therefore,  upon  the  information  and  complaint  of  the  Queen 
of  Portugal,  either  as  the  party  grieved,  or  as  a  stranger,  we  think 
we  are  bound  to  correct  the  excess  of  jurisdiction  brought  to  our 
notice,  and  to  prohibit  the  Lord  Mayor's  Court  from  proceeding  fur- 
ther in  this  suit. 

Rule  absolute  for  a  prohibition. 


280  EIGHTS  AND  DUTIES   OF  NATIONS  IN  TIME   OF  PEACE       (Part  1 

MIGHELL  V.  SULTAN  OF  JOHORE. 

(Court  of  Appeal,  1893.    L.  R.  [1S94]  1  Q.  B.  149.) 

Motion  to  set  aside  an  order  for  substituted  service  of  a  writ  of  sum- 
mons in  an  action  for  breach  of  promise  of  marriage,  and  to  stay  all 
proceedings  therein,  on  the  ground  that  the  Court  had  no  jurisdiction 
over  the  defendant,  who  was  described  in  the  writ  as  "the  Sultan  of  the 
State  and  Territory  of  Johore,  otherwise  known  as  Albert  Baker." 

The  order  for  substituted  service  was  obtained  ex  parte  from  a 
master  in  chambers  on  August  30,  1893.  The  motion  to  set  aside  that 
order  having  come  before  Wright,  J.,  sitting  as  vacation  judge,  on  Sep- 
tember 7,  1893,  the  learned  judge  adjourned  the  hearing  of  the  motion, 
and  caused  a  communication  to  be  made  to  the  Secretary  of  State  for 
the  Colonies,  in  order  to  ascertain  the  status  of  the  defendant.  In  an- 
swer to  that  communication  a  letter  was  written  to  Wright,  ].,  by  an 
ofificial  at  the  Colonial  Office,  purporting  to  be  written  by  direction  of 
the  Secretary  of  State  for  the  Colonies,  and  informing  him  that  Johore 
was  an  independent  state  and  territory  in  the  Malay  Peninsula,  and  that 
the  defendant  was  the  present  sovereign  ruler  thereof;  that  the  rela- 
tions between  the  Sultan  and  Her  Majesty  the  Queen,  which  were  re- 
lations of  alliance  and  not  of  suzerainty  and  dependence,  were  regu- 
lated by  a  treaty  made  on  December  11,  1885,  of  which  a  copy  was  en- 
closed ;  that  the  Sultan  had  raised  and  maintains  armed  forces  by  sea 
and  land,  had  organized  a  postal  system,  dispenses  justice  through 
regularly  constituted  courts,  had  founded  orders  of  knighthood,  con- 
fers titles  of  honour ;  and,  generally  speaking,  exercised  without  ques- 
tion the  usual  attributes  of  a  sovereign  ruler.  By  the  treaty  it  was 
agreed  that  the  Governor  of  the  Straits  Settlements  should  protect 
the  Sultan's  territory  from  external  hostile  attack,  and  for  that  purpose 
Her  Majesty's  officers  were  to  have  access  at  all  times  to  the  waters 
of  the  State  of  Johore ;  and  by  art.  6  of  the  treaty  the  Sultan  bound 
himself  not  to  negotiate  treaties  or  to  enter  into  any  engagement  with 
any  foreign  state. 

The  motion  was  referred  by  Wright,  J.,  to  the  Divisional,  Court,  who 
were  furnished  with  the  letter  from  the  Colonial  Office.  An  affidavit 
made  by  the  plaintiff,  and  used  on  the  hearing  of  the  motion,  contained 
the  following  material  statements :  The  plaintiff  was  introduced  to 
the  defendant  in  August,  1885,  as  "Mr.  Baker,"  and  she  had  known  him 
by  the  name  of  "Albert  Baker,"  under  which  name  he  passed  and  was 
generally  known,  ever  since.  The  defendant  promised  her  marriage  in 
1885.  About  September,  1885,  he  took  a  furnished  house  at  Goring  in 
the  name  of  Albert  Baker,  and  was  known  by  that  name,  and  no  other, 
in  the  district  and  neighborhood.  He  always  represented  himself  as  a 
private  individual  and  an  ordinary  subject  of  the  Queen,  and  was  al- 
ways treated  as  such.    In  October,  1885,  the  plaintiff  accidentally  dis- 


"Ch.  4)  JURISDICTION   OF  STATES  281 

covered  that  the  defendant  was  the  Sultan  of  Johore,  and  thereupon  he 
made  her  promise  never  to  reveal  who  he  was,  nor  to  call  him  by  any 
other  name  than  that  of  Albert  Baker,  saying  that  he  wished  to  conceal 
his  real  position,  and  to  preserve  his  incognito.  He  remained  in  this 
country,  living  at  various  -places,  for  some  time,  and  always  represented 
himself,  and  was  treated  by  servants,  tradesmen,  and  others,  as  a  private 
individual  and  a  subject  of  the  Queen,  and  always  passed  under  the 
name  of  Albert  Baker.  He  returned  to  this  country,  after  several  years 
absence,  in  1891,  and  again  passed,  represented  himself,  and  was  treated 
as  "Mr.  Baker,"  and  as  a  private  individual  and  subject  of  the  Queen, 
living  incognito  as  before  in  a  private  house  in  the  Isle  of  Wight.  *  *  * 

Wills,  J.^  I  entertain  no  doubt  in  this  case.  In  the  first  place  it 
is  clear  that  the  proper  mode  of  obtaining  information  with  respect  to 
the  status  of  the  defendant  was  adopted  by  Wright,  J.,  who  communi- 
cated with  and  obtained  a  letter  from  the  Colonial  Office.  We  are  told 
by  that  letter  that  the  Sultan,  "generally  speaking,  exercises  without 
question  the  usual  attributes  of  a  sovereign  ruler."  It  is  true,  as  ap- 
pears from  the  copy  of  the  treaty  annexed  to  that  letter,  that  he  has 
bound  himself  not  to  exercise  some  of  the  rights  of  a  sovereign  ruler 
except  in  certain  particular  ways ;  but  that  does  not  deprive  him  of  his 
character  as  an  independent  sovereign.  There  can  be  no  doubt  that 
he  is  still  an  independent  ruling  sovereign,  and  this  case  must  be  decid- 
ed upon  exactly  the  same  considerations  as  if  the  ruler  of  some  un- 
doubted great  Power — such  as  the  King  of  Italy,  or  the  President  of 
the  French  Republic — had  been  sued  in  the  Courts  of  this  country.  To 
begin  with,  there  is  no  precedent  for  saying  that  an  independent  sov- 
ereign ruler  can  be  sued  in  our  Courts.  On  the  contrary,  the  proposi- 
tion is  opposed  to  every  principle  of  international  law  as  applied  to  the 
persons  of  sovereigns  or  those  who  represent  them.  The  ground  upon 
which  the  immunity  of  sovereign  rulers  from  process  in  our  Courts  is 
recognised  by  our  law  is  that  it  would  be  absolutely  inconsistent  with 
the  status  of  an  independent  sovereign  that  he  should  be  subject  to  the 
process  of  a  foreign  tribunals     *     *     * 

No  authority  of  any  kind  to  qualify  that  broad  principle  laid  down  by 
the  Court  of  Appeal  has  been  brought  to  our  notice ;  but  we  have  been 
referred  to  certain  dicta  of  authors  of  treatises  on  international  law. 
One  of  those  dicta  suggests  that  if  an  independent  sovereign  ruler 
comes  into  this  country  incognito,  he  is  amenable  to  the  jurisdiction  of 
our  Courts,  although  he  chooses  to  claim  his  immunity.  That  dictum 
has  never  been  acted  upon,  and  the  suggestion  has  probably  arisen  from 
a  loose  way  of  looking  at  the  case  of  Duke  of  Brunswick  v.  King  of 
Hanover,  6  Beav.  1,  2  H.  L.  1.  That  was  a  very  peculiar  case,  because 
the  King  of  Hanover  was  not  only  a  foreign  sovereign,  but  also  a  Brit- 
ish peer.    He  was  sued  in  his  character  of  a  British  peer,  and  it  was 

■^  Parts  of  the  opiuions  of  Wills,  J.,  aud  Kay,  L.  J.,  and  the  opiniou  of  Lord 
Esher,  M.  II.,  are  omitted. 


282  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1" 

alleged  that  the  transactions,  in  respect  of  which  it  was  sought  to  make 
him  amenable  to  the  jurisdiction  of  .the  Courts  here,  had  nothing  to 
do  with  his  character  of  King  of  Hanover.  It  was  said  by  the  Court 
that,  inasmuch  as  he  had  two  distinct  capacities,  one  of  which  did  not 
touch  his  character  and  attributes  as  a  ruling  sovereign,  he  might  be 
sued  in  the  Courts  of  this  country,  in  respect  of  transactions  done  by 
him  in  his  capacity  as  a  subject.  But  the  Sultan  of  Johore  is  in  no 
sense  a  British  subject. 

It  is  said  that  he  came  to  this  country  incognito.  I  do  not  know 
that  he  did.  The  affidavit  says  that  he  was  passing  under  the  name  of 
Albert  Baker.  Unquestionably  the  plaintiff  was  under  no  misappre- 
hension on  the  subject.  According  to  her  own  affidavit  she  knew  who 
and  what  he  was  in  October,  1885,  If  anything  turned  upon  the  ques- 
tion of  fact,  I  should  say  that  it  was  not  shewn  that  in  August,  1893, 
when  this  writ  was  issued,  he  was  here  otherwise  than  as  a  sovereign 
prince.  That  seems  to  me,  however,  immaterial,  because  I  am  of  opin- 
ion that,  if  he  was  in  fact  a  sovereign  prince  when  the  acticfn  was 
brought,  he  was  not,  and  is  not  subject  to  the  jurisdiction  of  the  Courts 
of  this  country  simply  because  he  was  here  incognito.  I  think  that 
Munden  v.  Duke  of  Brunswick,  10  O.  B.  656,  is  a  strong  authority 
against  the  proposition  contended  for  by  the  plainti'ff's  counsel.  To 
say  that  it  is  an  authority  in  the  plaintiff's  favour  is  the  result  of 
a  confusion  of  thought  in  respect  of  two  propositions  which  ought 
to  be  kept  distinct.  It  is  one  thing  to  say  that  a  foreign  sovereign 
is  capable  of  making  an  effectual  contract  in  this  country;  it  is  quite 
another  thing  to  say  that  he  can  be  sued  in  the  Courts  of  this  country. 
In  Munden  v.  Duke  of  Brunswick,  10  Q.  "S.  656,  the  Duke  was  sued 
for  a  debt  due  on  an  annuity  deed.  He  pleaded  that  at  the  time 
of  making  the  deed  he  was  the  reigning  sovereign  Duke  of  Brunswick 
and  Liineburg,  and  that  "from  the  time  of  the  making  thereof  continu- 
ally, and  at  the  time  of  the  commencement  of  this  suit,  defendant  has 
been  and  still  is  justly  entitled  to  all  the  rights,  prerogatives,  and  privi- 
leges appertaining  to  him  as  the  Duke  of  Brunswick  and  Luneburg." 
The  Court  held  the  plea  bad  for  not  stating  that  the  defendant  was 
reigning  sovereign  Duke  at  the  time  when  he  was  sued.  They  said  that 
he  might  have  been  deposed,  or  have  abdicated,  before  the  action  was 
brought.  But  the  decision  assumes  that,  if  the  plea  had  been  drawn 
otherwise,  and  had  contained  all  the  material  allegations,  it  would  have 
been  a  good  plea,  and  that  view  seems  to  me  consistent  with  every  au- 
thority on  the  subject.  For  these  reasons,  I  am  of  opinion  that  the 
order  for  substituted  service  of  the  writ  should  be  set  aside,  and  that 
the  order  for  a  stay  of  proceedings  should  be  made. 

Lawrence,  J.  I  am  entirely  of  the  same  opinion,  on  the  grounds 
which  have  been  already  given.  I  will  only  add  that,  in  the  same  year 
in  which  the  decision  in  The  Parlement  Beige,  5  P.  D.  197,  was  given, 
James,  L.  J.,  one  of  the  judges  who  decided  that  case,  pointed  out  in 


Ch.  4)  JURISDICTION   OF   STATES  283 

Strousberg  v.  Republic  of  Costa  Rica,  44  L.  T.  Rep.  199,  the  only  two 
exceptions  to  the  rule  with  respect  to  actions  against  foreign  sovereigns. 
One  is  that,  "where  a  foreign  sovereign  or  state  comes  into  the  munic- 
ipal courts  of  this  country  for  the  purpose  of  obtaining  a  remedy,  then 
by  way  of  defence  to  that  proceeding — ^by  way  of  counter-claim,  if 
necessary,  to  the  extent  of  defeating  that  claim — the  person  sued  here 
may  file  a  crossclaim,  or  take  any  other  proceeding  against  that  sov- 
ereign or  state  for  the  purpose  of  enabling  complete  justice  to  be  done 
between  them."  The  other  exception  is,  "the  case  in  which  a  foreign 
sovereign  may  be  named  as  a  defendant  for  the  purpose  of  giving  him 
notice  of  the  claim  which  the  plaintiff  makes  to  funds  in  the  hands  of  a 
third  person  or  trustee  over  whom  this  Court  has  jurisdiction." 

Motion  granted. 

The  plaintiff  appealed.     *     *     * 

Lopes,  L.  J.  It  was  contended  for  the  plaintiff  that  the  status  of  the 
defendant  had  not  been  satisfactorily  established;  but  I  am  clearly 
of  opinion  that  it  was,  and  that  the  defendant  is  an  independent  sov- 
ereign. That  such  a  sovereign  is  entitled  to  immunity  from  the  jurisdic- 
tigriLof  our  Courts  is  beyond  all  question.  That  proposition  was  estab- 
lished, if  it  needed  to  be  further  established,  by  the  case  of  The  Parle- 
ment  Beige,  5  P.  D.  197.  The  law  on  the  subject  is  clearly  laid  down  by 
Vattel.  He  says  (Law  of  Nations — Translation  by  J.  Chitty — Ed.  1834, 
p.  485) :  "We  cannot  introduce  in  any  more  proper  place  an  important 
question  of  the  law  of  nations  which  is  nearly  allied  to  the  right  of 
embassies.  It  is  asked  what  are  the  rights  of  a  sovereign,  who  happens 
to  be  in  a  foreign  country,  and  how  is  the  master  pf  that  country  to 
treat  him?  If  that  prince  be  come  to  negotiate,  or  to  treat  about  some 
public  affair,  he  is  doubtless  entitled,  in  a  more  eminent  degree,  to  en- 
joy all  the  rights  of  ambassadors.  If  he  be  come  as  a  traveller,  his 
dignity  alone,  and  the  regard  due  to  the  nation  which  he  represents  and 
governs,  shelters  him  from  all  insult,  gives  him  a  claim  to  respect  and 
attention  of  every  kind,  and  exempts  him  from  all  jurisdiction."  But 
there  is  no  doubt  that  a  foreign  sovereign  may  submit  to  the  jurisdic- 
Jtion  of  the  Courts  of  this  country,  and  it  was  contended  that  in  this 
particular  case  he  had  so  submitted,  because  he  had  taken  an  assumed 
name  and  acted  as  a  private  individual.  We  are  asked  from  that  to  in- 
fer the  fact  of  submission  to  the  jurisdiction.  I  am  of  opinion  that  no 
such  inference  can  be  drawn.  In  my  judgment,  the  only  mode  in  which 
a  sovereign  can  submit  to  the  jurisdiction  is  by  a  submission  in  the 
face  of  the  Court,  as,  for  example,  by  appearance  to  a  writ.  That 
he  intends  to  waive  his  rights  by  taking  an  assumed  name  cannot  be 
inferred.  On  this  point  I  will  again  refer  to  Vattel's  Law  of  Nations, 
p.  485,  where  he  says:  "On  his  making  himself  known,  he  cannot  be 
treated  as  subject  to  the  common  laws;  for  it  is  not  to  be  presumed 
that  he  has  consented- to  such  a  subjection;   and,  if  a  prince  will  not 


284  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

suffer  him  in  his  dominions  on  that  footing,  he  should  give  him  notice 
of  his  intentions." 

It  seems  to  me  clear,  therefore,  that  in  this  case  there  was  no  sub- 
mission to  the  jurisdiction,  and  nothing  from  which  such  submission 
could  be  inferred.  For  these  reasons  I  agree  that  the  appeal  should  be 
dismissed. 

Kay,  L.  J.  The  status  of  a  foreign  sovereign  is  a  matter  of  which 
the  Courts  of  this  country  take  judicial  cognisance — that  is  to  say,  a 
matter  which  the  Court  is  either  assumed  to  know  or  to  have  the  means 
of  discovering,  without  a  contentious  inquiry  as  to  whether  the  person 
cited  is  or  is  not  in  the  position  of  an  independent  sovereign.  Of 
course,  the  Court  will  take  the  best  means  of  informing  itself  on  the 
subject,  if  there  is  any  kind  of  d-ouht,  and  the  matter  is  not  as 
notorious  as  the  status  of  some  great  monarch  such  as  the  Em-peror  of 
Germany.  Here  the  person  cited  was  the  Sultan  of  Johore,  and  the 
means  which  the  judge  took  of  informing  himself  as  to  his  status  was 
by  inquiry  at  the  Colonial  Office.  *  *  *  j  confess  I  cannot  con- 
ceive a  more  satisfactory  mode  of  obtaining  information  on  the  subject 
than  such  a  letter.  Proceeding  as  it  does  from  the  office  of  one  of  the 
principal  secretaries  of  state,  and  purporting  to  be  written  by  his  direc- 
tion,' I  think  it  must  be  treated  as  equivalent  to  a  statement  by  Her 
Majesty  herself,  and,  if  Her  Majesty  condescends  to  state  to  one  of  her 
Courts  of  Justice,  that  an  individual  cited  before  it  is  an  independent 
sovereign,  I  think  that  statement  must  be  taken  as  conclusive.  But  it 
was  argued  that  the  letter  itself  contains,  by  reference,  a  confutation 
of  its  statements ;  that  it  refers  to  a  treaty,  and,  on  looking  to  that 
treaty,  it  appears  that  its  terms  are,  in  effect,  that  the  Sultan  should 
have  certain  protection,  he  on  his  part  engaging  not  to  enter  into 
treaties  with  any  foreign  Powers ;  and  that  such  a  treaty  amounts  to 
an  abnegation  of  his  sovereign  powers  which  destroyed  his  position  as 
an  independent  sovereign.  But,  if  he  is  not  an  independent  sovereign, 
he  must  be  a  dependent  one.  I  asked  during  the  argument  on  whom 
he  was  dependent,  and  failed  to  get  a  satisfactory  answer.  The  agree- 
ment by  the  Sultan  not  to  enter  into  treaties  with  other  Powers  does 
not  seem  to  me  to  be  an  abnegation  of  his  right  to  enter  into  such 
treaties,  but  only  a  condition  upon  which  the  protection  stipulated  for 
is  to  be  given.  If  the  Sultan  disregards  it,  the  consequence  may  be 
the  loss  of  that  protection,  or  possibly  other  difficulties  with  this  coun- 
try ;  but  I  do  not  think  that  there  is  anything  in  the  treaty  which  quali- 
fies or  disproves  the  statement  in  the  letter  that  the  Sultan  of  Johore 
is  an  independent  sovereign. 

The  next  point  is  this.  It  is  said  that  an  independent  sovereign  may 
waive  his  right  to  immunity,  and  may  treat  himself  as  subject  to  the 
jurisdiction.  I  agree;  but  how  is  that  to  be  done?  This  seems  to  me, 
in  the  first  place,  quite  clear.  Supposing,  by  way  of  illustration,  that 
some  well-known  potentate,  such  as  one  of  the  great  European  emper- 


Ch.  4)  JURISDICTION   OF   STATES  285 

ors,  were  to  be  sued  in  a  court  of  this  country,  and  took  no  kind  of 
notice  of  the  proceeding;  it  would  be  the  duty  of  the  Court  to  recognise 
his  position,  and  to  say  at  once  that  the  person  cited  was  an  independent 
foreign  sovereign  over  whom  it  had  no  jurisdiction.  Therefore  it  is 
not  right  to  say  that  such  a  sovereign  must  come  forward  and  assert  his 
right.  I  do  not  think  that  he  need.  I  think  the  Court  itself  would  be 
bound  to  take  notice  of  the  fact  that  it  had  no  jurisdiction.  *  *  * 
The  .passage  cited  from  Vattel  by  Lopes,  Ly.  J.,  is  emphatic  on  this  very 
point,  and  shews  that  the  time  at  which  the  immunity  is  to  be  waived 
must  be  when  an  action  is  brought  against  the  foreign  sovereign,  and 
when  it  is  brought  to  the  attention  of  the  Court  by  reason  of  its  judi- 
cial knowledge  or  from  other  information  that  the  person  sued  is  a 
foreign  sovereign.  I  should  put  it  thus :  the  foreign  sovereign  is  en- 
titled  to  immunity  from  civil  proceedings  TiflHe "Courts  of  any~bther 
country,  unless  upon  being  sued  he  actively  elects  to  waive  his  privi-  I 
lege  and  to  submit  to  the  jurisdiction.  Here  the  defendant  has  not  \ 
done  that,  but  just  the  contrary.     *     *     *  s 

s  In  Vavasseur  v.  Krupp,  L.  R.  9  Ch.  Div.  351  (1878),  it  was  held,  according 
to  the  headnote  of  the  case,  that: 

"The  court  has  no  jurisdiction  to  prevent  a  foreign  sovereign  [in  this  case 
the  Mikado  of  Japan]  from  removing  his  property  in  this  country. 

"A  foreign  sovereign  who,  for  the  purpose  of  obtaining  his  property,  sub- 
mits to  be  made  a  defendant  in  an  action,  does  not  thereby  lose  his  rights. 

"There  is  a  right  of  property  in  an  article  made  in  infringement  of  a  patent 
although  the  court  would  order  the  article  to  be  destroyed. 

"A  foreign  sovereign  bought  in  Germany  shells  made  there,  but  said  to  be 
infringements  of  an  English  patent.  They  were  brought  to  this  country  in 
order  to  be  pv:t  on  board  a  ship  of  war  belonging  to  the  foreign  sovereign, 
and  the  patentee  obtained  an  injunction  against  the  agents  of  the  foreign 
sovereign  and  the  persons  in  whose  custody  the  shells  were,  x*estraining  them 
from  removing  the  shells.  The  foreign  sovereign  then  applied  to  be  and  was 
made  a  defendant  to  the  suit.  An  order  was  then  made  by  the  Master  of  the 
Rolls,  and  affirmed  on  appeal,  that  notwithstanding  the  injunction  he  should 
be  at  liberty  to  remove  the  shells." 

See,  also,  Doss  v.  Secretary  of  State  for  India.  L.  R.  19  Eq.  509  (1S75). 

In  the  comparatively  recent  ease  of  So.  African  Rep.  v.  La  Compagnie 
Franco-Beige,  etc.,  L.  R.  1  Ch.  190  (1897),  a  foreign  sovereign  brought  suit  in 
England  to  restrain  defendants  from  using  a  fund  in  their  hands  tn  certain 
ways.  Defendants  set  up  a  claim  for  damages,  upon  which  it  was  held,  that 
while  a  sovereign  suing  in  England  submits  to  the  jurisdiction  for  the  pur- 
poses of  allowing  discovery  in  aid  of  the  defendant  in  his  action  he  does  not 
submit  to  what  is  in  its  real  nature  a  cross  action.  Another  claim  arising 
from  another  and  distinct  matter  may  not  be  set  up. 

The  recent  cases  are  all  in  accord  with  the  principal  cases  and  those  cited 
in  the  notes. 

The  rule  may  be  thus  expressed,  "once  a  sovereign,  always  a  sovereign."  at 
least  for  anything  done  while  and  in  the  capacity  of  a  sovereign.  See  Hatch  v. 
Baoz,  7  Hun,  596  (1876)  ;  Duke  of  Brunswick  v.  King  of  Hanover,  2  H,  L.  Cas. 
1  (1848). 

In  Nathan  v.  Virginia,  1  Dall.  (Pa.)  77,  note,  1  L.  Ed.  44,  note  (1781),  it  was 
held  by  the  court  of  common  picas  of  Philadelphia  county  that  property  of  a 
sister  state — in  this  case  the  commonwealth  of  Virginia — was  not  liable  to  at- 
tachment in  Pennsylvania,  on  the  theory  that  Virginia,  being  a  free,  sovereign, 
and  independent  state,  was  not  suable  according  to  the  law  of  nations. 

In  Bcex-s  v.  Arkansas,  20  How.  527,  529,  15  L.  Ed.  991  (1857),  Chief  Justice 
Taney,  speaking  for  the  court,  said : 

"It  is  an  established  principle  of  jurisprudence  in  all  civilized  nations  thr.t 


286  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

II.  Diplomatic  Agents 

The  CASE  OF  ANDREW  ARTEMONOWITZ  MATTUEOF, 
Ambassador  of  Muscovy. 

(Queen's  Bench,  8  Queen  Anne,  1710.     10  Mod.  4.) 

The  question  was,  whether  an  ambassador,  could  by  law  be  arrested 
for  debt.  '-■'  -'     ~^       ~  ~ 

Sir  James  Mountague,  Attorney  General.  He  cannot.  If  the 
privileges  of  an  ambassador  may  by  law  be  broken  in  upon  and  invaded 
for  the  preservation  of  the  property  of  a  private  subject,  princes  will 
be  cautious  of  sending  ambassadors  to  us ;  ours  must  expect  the  like 
treatment;  and  few  will  be  prevailed  with  to  take  that  character  upon 
them.  Should  an  ambassador  be  liable  to  the  restraints  of  the  law  of 
the  land  to  which  he  goes,  how  easy  would  it  be,  upon  an  emergency,  to 
take  off  his  attendance  upon  his  master's  business?  Does  the  law  of 
England  privilege  the  body  of  a  member  of  Parliament,  and  of  a 
soldier,  and  shall  it  not  that  of  an  ambassador?  The  person  of  an 
ambassador  has  ever  been  held  sacred  and  inviolable  by  the  law  of 
nations.  The  goods  of  an  ambassador  are  not  liable  to  distress,  a  for- 
tiori, not  his  person.  An  ambassador  must  be  intreated,  and  upon 
refusal  sent  back  to  his  master.  If  an  ambassador  commit  a  crime 
of  a  transcendant  nature,  the  King  a  quo,  non  ad  quem,  must  punish 
him.  Lord  Coke  says,  legatos  violari  contra  jus  gentium;  nor  does  he 
add,  as  certainly  he  would,  had  he  thought  so,  that  though  this  be  so 
in  the  civil  law,  it  is  not  so  in  ours.  An  ambassador  does  by  fiction 
of  law  represent  the  person  of  his  master ;  thus  Coke,  upon  the  stat- 
ute 25  Edw.  3,  c.  2,  affirms,  that  it  is  high  treason  at  the  common  law 
to  kill  an  ambassador.  Now  certainly  nobody  will  say  the  Czar  him-^ 
self  might  have  been  arrested.     The  same  fiction  of  law  that  makes 

the  sovereign  cannot  be  sued  in  itg  own  courts,  or  in  any  other,  without  its 
consent  and  permission ;  but  it  may,  if  it  thinks  proper,  waive  this  privilege, 
and  permit  itself  to  be  made  a  defendant  in  a  suit  by  individuals,  or  by  an- 
other state.  And  as  this  permission  is  altogether  voluntary  on  the  part  of  the 
sovereignty,  it  follows  that  it  may  prescribe  the  terms  and  conditions  on 
which  it  consents  to  be  sued,  and  the  manner  in  which  the  suit  shall  be  con- 
ducted, and  may  withdraw  its  consent  whenever  it  may  suppose  that  justice  to 
the  public  requires  it." 

In  Nichols  v.  United  States,  7  Wall.  122,  126,  19  L.  iJd.  125  (1S68),  Mr. 
Justice  Davis,  speaking  for  the  court,  said :  "The  immunity  of  the  United 
States  from  suit  is  one  of  the  main  elements  to  be  considered  in  determining 
the  merits  of  this  controversy.  Every  government  has  an  inherent  right  to 
protect  itself  against  suits,  and  if,  in  the  liberality  of  legislation,  they  are 
permitted,  it  is  only  on  such  terms  and  conditions  as  are  prescribed  by  statute. 
The  principle  is  fundamental,  applies  to  every  sovereign  power,  and  but  for  the 
protection  which  it  affords,  the  government  would  be  unable  to  perform  the 
various  duties  for  which  it  was  created.  It  would  be  impossible  for  it  to  col- 
lect revenue  for  its  support,  without  infinite  embarrassments  and  delays,  if  it 
was  subject  to  civil  processes  the  same  as  a  private  person." 


Ch,  4)  JURISDICTION   OP   STATES  287 

him  represent  the  person  of  his  master,  makes  him  extraparochial, 
"and  quasi,  in  the  dominions  of  his  master.  The  ill  treatment  of  am- 
bassadors is  a  thing  of  dangerous  consequence,  for  it  may  involve  the 
nation  in  a  war,  and  it  would  be  very  inconvenient  that  this  should  be 
in  the  power  of  any  private  person  whatsoever. 

Contra,  it  was  said,  if  this  be  so,  a  subject  may  be  left  without  rem- 
edy for  the  recovery  of  his  debt,  which  would  be  a  defect  in  law. 
Justice  ought  always  to  be  reciprocal,  but  an  ambassador  may  arrest, 
ergo,  etc.  It  is  a  maxim  in  law  that  the  royal  prerogative  does  no 
wrong,  and  shall  the  prerogative  of  an  ambassador  surmount  that  of  the 
Crown?  Such  a  law  as  this  would  be  a  nullity,  because  contrary  to 
Magna  Charta,  cap.  29,  "nulli  vendemus,  nulli  negabimus,  aut  differe- 
mus  justitiam,  vel  rectum."  An  ambassador  by  his' contract  renounces 
his  privilege  as  far  as  to  subject  himself  to  the  laws  in  force  in  that 
"country  where  the  contract  was  made." 

^  The  persons  who  were  concerned  in  this  arrest  were  examined  before  the 
Privy  Council,  and  seventeen  were  committed  to  prison ;  most  of  whom  were 
prosecuted  by  information  in  the  Court  of  Queen's  Bench  at  tlie  suit  of  tlie 
Attorney  General,  and  at  their  trial  before  Lord  Chief  Justice  Holt,  were 
convicted  of  the  -facts  by  the  jury;  reserving  the  question  of  law,  how  far 
those  facts  were  criminal,  to  be  afterwards  argued  before  the  Judges ;  which 
question  was  never  determined.  1  Bl.  Com.  2.55.  Boyer's  Annals  of  Queen 
Anne.  But  to  satisfy  the  clamours  of  the  foreign  ministers,  who  made  it  a 
common  cause,  as  well  as  to  appease  the  Czar,  all  the  proceedings,  etc., 
against  the  said  ambassador  are,  by  7  Anne,  c.  12,  declared  void,  and  it  is 
enacted,  "that  all  writs  and  processes  that  shall  at  any  time  afterwards  be 
sued  forth  or  prosecuted,  whereby  the  person  of  any  ambassador  or  other 
public  minister  of  any  foreign  prince  or  State,  authorised  and  received  as 
such  by  Her  Majesty,  or  the  domestic  or  domestic  servant  of  any  such  am- 
bassador or  other  public  minister,  may  be  arrested  or  imprisoned,  or  his  or 
their  goods  or  chattels  may  be  distrained,  seized,  or  attached,  shall  be  deemed 
null  and  void ;  but  it  is  provided,  that  no  merchant  or  other  trader  what- 
soever, within  the  Statutes  of  Bankrupts,  who  shall  put  himself  into  the  serv- 
ice of  such  ambassador,  etc.,  shall  have  any  manner  of  benefit  by  this  act; 
and  also  that  no  i>erson  shall  be  proceeded  against  for  having  arrested  the 
servant  of  any  ambassador,  etc.,  unless  the  name  of  such  servant  be  first 
registered  in  the  Secretary  of  State's  office ;  and  transmitted  by  such  Secretary 
to  the  Sheriff  of  London,  etc.,  who  shall  hang  up  the  same  in  some  public  place 
in  their  offices,  whereto  all  persons  may  resort  and  talie  copies  thereof,  with- 
out fe^  or  reward." 

For'judicial  decisions  on  this  statute  see  Barbuit's  Case,  Cases  T.  T.  2S1 ; 
Ti-iqupt  V.  Bath.  ?>  Burr.  174S:  Seacomh  v.  Bowlnoy.  1  Wils.  20;  Heathfield 
V.  Chilton,  4  Burr.  2015;  Poitier  v.  Croza,  1  Black.  Rep.  48;  Wedmore  v. 
Alvares,  Stra.  797:  Ld.  Ray.  1594;  Carolino's  Case,  1  Wils.  78;  Holmes  v. 
Gordon,  Annally's  Rep.  2 ;  Masters  v.  Manby,  1  Burr.  401 ;  Lockwood  v.  Coys- 
garne,  3  Burr.  1676 ;   Hopkins  v.  De  Roebuck,  3  Term  Rep.  79. 


288  EIGHTS  AND   DUTIES  OF   NATIONS   IN  TIME  OF   PEACE       (Part  1 

HEATHFIELD  v.  CHILTON. 

(Ck>urt  of  King's  Bench,  1767.     4  Burr.  2015.) 

On  showing  cause  why  the  defendant  should  not  be  discharged  out 
of  the  custody  of  the  marshall  (upon  7  Anne,  c.  12)  as  a  domestic 
servant  to  Paul  Pierre  Russell,  minister  from  the  Prince  Bishop  of 
Liege — he  swore  himself  to  be  bona  fide  English  secretary  to  him;  and 
to  have  been  bona  fide  hired  by  him  as  such;  and  to  have  bona  fide 
received  wages  as  they  became  due,  at  the  rate  of  £30  per  annum.  Both 
the  minister  himself  and  the  relation  of  this  man  to  him  were  ob- 
jected to. 

But  Chilton's  own  affidavit  was  positive,  as  to  the  service,  and  that 
it  was  real  and  not  colorable ;  and  it  was  confirmed  by  a  Mr.  Chamber- 
layne,  who  called  himself  Secretary.  He  also  swore  that  he  was  not 
an  object  of  the  bankrupt  laws.  He  had  been  house-steward  to  Lord 
Northington.  No  certificate  was  produced,  under  the  hand  and  seal 
of  the  minister;  though  the  application  was  made  (as  the  attorney 
alleged)  on  the  parti  of  the  minister;  nor  was  it  sufficiently  ^sworn 
that  the  defendant  was  in  the  service  of  the  minister,  at  the  time  when 
he  was  arrested. 

Lord  Mansfield.  The  privileges  of  public  ministers  and  their 
retinue  depend  upon  the  law  of  nations ;  which  is  part  of  the  com- 
mon law  of  England.  And  the  act  of  Parliament  of  7  Anne,  c.  12, 
did  not  intend  to  alter,  nor  can  alter  the  law  of  nations.  His  lordship 
recited  the  history  of  that  act,  and  the  occasion  of  it,  and  referred 
to  the  annals  of  that  time.  He  said  there  is  not  one  of  the  provisions 
in  that  act  which  is  not  warranted  by  the  law  of  nations. 

The  law  of  nations  will  be  carried  as  far  in  England  as  anywhere, 
because  the  Crown  can  do  no  particular  favors,  affecting  the  rights  of 
suitors,  in  compliment  to  public  ministers,  or  to  satisfy  their  points 
of  honor. 

The  law  of  nations,  though  it  be  liberal,  yet  does  not  give  protec- 
tions to  screen  persons  who  are  not  bona  fide  servants  to  public  min- 
isters, but  only  make  use  of  that  pretence  in  order  to  prevent  their 
being  liable  to  pay  their  just  debts. 

The  law  of  nations  does  not  take  in  consuls,  or  agents  of  commerce ; 
though  received  as  such  by  the  courts  to  which  they  are  employed. 
This  was  determined  in  Barbuit's  Case  in  Cane,  which  was  solemnly 
argued  before  and  determined  by  Lord  Talbot  on  considering  and 
well-weighing  Barbeyrac,  Binkershoek,  Grotius,  Wincquefort,  and  all 
the  foreign  authorities  (for  there  is  little  said  by  our  own  writers  on  this 
subject).    In  that  case  several  curious  questions  were  debated. 

If  I  did  not  think  there  was  enough  in  the  present  case,  already  ap- 
pearing to  the  court,  to  enable  us  to  form  an  opinion,  I  should  desire 
to  know  in  what  manner  this  minister  was  accredited.  Certainly  he 
is  not  an  ambassador,  which  is  the   first  rank.     Envoy,  indeed,   is 


Ch.  4)  JURISDICTION   OF   STATES  289 

a^  secondclass ;  but  he  is  not  shown  to  be  even  an  envoy.  He  is  called 
"minister/'  'tis  true,  but  minister  (alone)  is  an  equivocal  term. 

I  find  this  is  not  an  application  by  the  attorney-general  by  the  di- 
rection and  at  the  expense  of  the  Crown.  That,  indeed,  would  have 
shown  that  the  Crown  thought  this  person  entitled  to  the  character  of  a 
public  minister.    It  now  remains  uncertain  what  his  proper  character  is. 

But  supposing  him  to  be  a  minister  of  such  a  kind  as  entitles  him 
to  privilege;  yet  I  think  this  is  not  a  case  of  privilege  by  the  law  of 
nations,  for  the  defendant  does  not  appear  to  have  been  in  the  service 
of  the  minister  at  the  time  of  the  arrest. 

A  public  minister  shall  not  take  a  man  from  the  custody  of  the 
law ;  though  the  process  of  the  law  shall  not  take  his  menial  servant 
out  of  his_service. 

Here  it  is  not  sworn  when  the  defendant  came  into  the  service. 
And  upon  the  manner  of  swearing  here  used,  the  court  must  take  it 
"that  he  was  not  in  the  minister's  service  at  the  time  of  the  arrest." 

Mr.  Justice  Yates  was  not  in  court. 

Mr.  Justice  Ashton  concurred.  The  rule  laid  down  by  Lord  Mans- 
field is  a  very  right  one.  The  process  of  the  law  shall  not,  indeed, 
take  a  person  out  of  the  service  of  a  public  minister ;  but,  on  the 
other  hand,  a  public  minister  cannot  take  a  person  out  of  the  custody 
of  the  law.  If  a  man  has  no  such  privilege  at  the  time  of  his  being 
arrested,  no  subsequent  privilege  can  be  given  him,  by  being  after- 
guards taken  into  the  service  of  a  public  minister. 

Therefore,  as  it  does  not  appear  here  that  the  defendant  was  then 
in  the  service,  he  cannot  be  entitled  to  this  privilege. 

This  is  a  true  and  right  principle,  and  the  establishing  it  may  pre- 
vent many  of  these  applications. 

Mr.  Justice  Hewitt  concurred,  and  repeated  and  confirmed  the 
principle;  and  agreed  that  it  does  not  here  appear  that  the  defend- 
ant was,  at  the  time  of  the  arrest,  in  the  serA^ce  of  this  minister. 

Lord  Mansfield  took  occasion  to  observe  that  the  registering  the 
name  of  the  defendant  in  the  Secretary  of  State's  office,  and  transmit- 
ting it  to  the  sheriff's  office  (mentioned  in  the  fifth  section),  relates 
only  to  the  bailiff  who  arrested  him  and  is  no  condition  precedent  to 
the  being  entitled  to  the  privilege  of  a  public  minister's  servant.  In 
this,  Mr.  Justice  Ashton  also  concurred. 

Per  Cur.  unanimously: 

Rule  discharged.^" 

10  See  the  early  case  of  Crosse  v.  Talbot,  8  Mod.  2S8  (1724);  and  see  ante,  p. 
2,  for  Triquet  v.  Bath,  3  Burr.  1478  (1764). 

The  following  are  famous  cases  from  the  text-books  cited  incidentally,  but 
not  decided  in  the  law  reports:  A.  Cases  of  criminal  jurisdiction:  Case  of 
Leslie,  Bishop  of  Ross,  1571,  to  the  effect  that  the  ambassador  of  a  deposed 
sovereign  is  entitled  to  diplomatic  immunity,  2  Ward's  Law  of  Nations,  486; 
Mendoza's  Case,  1584,  holding  that  an  ambassador  should  not  be  punished, 
but  may  be  sent  out  of  the  country,  Id.  522;  Case  of  Da  Sa,  1653,  in  which 
Scott  Int. Law — 19 


290  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   PEACE       (Parti 

The  DUKE  DE  MONTELLANO  v.  CHRISTIN. 
(Court  of  King's  Bench,  1816.     5  Maule  &  S.  503.) 

The  plaintiff,  who  was  the  ambassador  from  the  Court  of  Spain, 
brought  assumpsit  against  the  defendant  for  money  had,  and  received, 
to  which  the  defendant  appeared,  and  was  served  with  a  declaration 
de  bene  esse.  And  now  it  was  moved  by  Scarlett,  for  the  defendant, 
that  the  plaintiff  might  give  security  for  costs,  upon  an  affidavit  that 
the  plaintiff  had  been  applied  to  for  this  purpose,  and  had  given  no  an- 
swer thereto.  And  it  was  said,  in  support  of  the  motion  .that  the 
plaintiff,  being  a  privileged  person  by  Act  of  Parliament  (7  Anne,  c. 
12),  it  was  the  same  as  if  he  were  beyond  sea,  or  out  of  the  jurisdic- 
tion of  the  Court,  there  being  no  remedy  against  him  to  recover  the 
costs ;  and  Goodwin  v.  Archer,  2  Peere  Williams,  452,  1  Eq.  Ca.  Abr. 
350,  pi.  4,  was  cited. 

But,  per  Lord  EivLEnborough,  C.  J.  The  case  in  Peere  Williams 
was  that  of  a  servant  of  an  ambassador,  and  no  precedent  has  been 
mentioned  of  a  like  proceeding  in  the  case  of  an  ambassador.  The 
affidavit  does  not  state  that  there  is  any  intention  on  the  part  of  the 
plaintiff  to  leave  the  country;  and,  considering  that  an  ambassador 
is.^the  immediate  representative  of  the  crowned  head,  whose  servant 
he  is,  it  would  hardly  be  respectful,  in  the  first  instance,  to  exact  such 
a  security,  unless  there  were  pregnant  reasons  for  believing  it  to  be 
necessary. 

Per  Curiam.    Rule  refused.^ ^ 

the  brother  of  an  ambassador  and  a  member  of  his  suite  was  executed  for 
^edition  and  murdei-,  Id.  535;  Gyllenborg"s  Case,  1717,  deciding  that  an  am- 
bassador who  conspires  to  overthrow  the  government  to  which  he  is  accredited 
may  be  arrested  and  his  papers  seized.  Id.  548 ;  Prince  Cellamare's  Case,  1718, 
where  an  ambassador  was  arrested  and  conducted  across  the  frontiers  into 
his  own  country  for  conspiring  against  the  accrediting  state,  1  Martens'  Causes 
Celebres,  149.  B.  Civil  jurisdiction:  Case  of  Peter  the  Great's  Ambassador, 
1708,  1  Black.  Com.  c.  VII;  Case  of  Baron  de  Wrech,  1772.  in  which  the 
French  government  withheld  a  minister's  passports  until  his  debts  were  paid, 
2  Martens'  Causes  Celebres,  282;  Wheaton's  Case,  1839,  Dana's  Wheaton, 
307-318;  5  Martens'  C.  C.  295;  Byrne  v.  Herran,  1  Daly  (N.  Y.)  344,  346 
(1863) ;  Dillon's  Case,  1854,  holding  that  a  treaty  stipulation  exempting  con- 
sul from  appearing  as  witness  in  court  yields  to  constitutional  privilege  of 
compulsory  process  to  compel  presence  of  witnesses,  1  Wharton's  Digest,  665, 
In  re  Dillon,  7  Sawyer,  561,  7  Fed.  Cas.  No.  3,914,  p.  710  [1854];  Case  of  Du- 
bois, 1856,  recognizing  that  a  foreign  minister  cannot  be  compelled  to  appear 
in  court  as  a  witness,  Sen.  Ex.  Doc.  No.  21,  34th  Cong.,  3d  Sess. 

11  In  Parkinson  v.  Potter.  L.  R.  16  Q.  B.  Div.  152  (1885),  the  rule  of  im- 
munity from  suit  was  held  to  extend  to  rent  for  premises  occupied  by  the 
diplomatic  agent.  The  case  is  valuable  in  itself,  and  has  an  additional  value 
for  the  precedents  and  authorities  which  it  cites  and  approves. 

In  Macartney  v.  Garbutt,  24  Q.  B.  Div.  368  (1890),  it  was  held  that  this 
immunity  extended  to  a  diplomatic  agent,  although  a  subject  of  the  receiv- 
ing county,  unless  the  immunity  were  specifically  limited  before  receiving  such 
agent. 

Where,  however,  a  British  subject  in  debt  was  appointed  honorary  attach^ 

Scott  Int.Law 


Ch.  4)  JURISDICTION   OP   STATES  291 

DUPONT  V.  PICHON. 


(Supreme  Court  of  Pennsylvania,  1805.    4  Dall.  321,  1  L.  Ed.  851.) 

The  plaintiff  had  issued  a  capias  against  the  defendant,  in  an  action 
upon  the  case,  etc.,  and  a  citation  was  served  upon  him,  in  the  follow- 
ing terms : 

"Sir:  You  are  hereby  cited  to  show  your  cause  of  action,  and 
why  the  defendant,  claiming  privilege  as  charge  d'affaires  of  the  French 
republic,  should  not  be  discharged  from  the  process  issued  against 
him,  at  the  city  hall,  in  the  city  of  Philadelphia,  at  10  o'clock,  to-mor- 
row forenoon. 

"Philadelphia,  1st  of  March,  1805.  Edward  Shippen." 

The  citation  was  returned  to  the  judges  of  the  Supreme  Court,  then 
holding  a  court  of  nisi  prius;  ^^  and  after  argument  by  Du  Ponceau 
and  Dallas,  for  the  defendant;  and  by  Ingersoll  and  Wallace,  for 
the  plaintiff,  the  following  order  was  made  by  the  judges,  who  did  not 
think,  that  individually,  or  sitting  at  nisi  prius,  they  could  quash  the 
process : 

"It  is  ordered,  that  the  defendant  be  discharged  on  common  bail ; 
and  that  at  the  next  supreme  court,  in  bank,  on  the  4th  day  of  this 
instant  March,  it  may  be  considered  by  that  court,  whether  the  defend- 
ant should,  or  should  not,  be  discharged  from  the  process  issued  against 
him ;  or  whether  he  should  be  held  to  bail,  and  the  present  order  be 
discharged." 

At  the  opening  of  the  court,  on  the  first  day  of  the  term  (all  the 
judges  being  present),  Du  Ponceau  and  Dallas  moved,  that  the  defend- 
ant be  discharged  absolutely  from  the  process.  They  produced  Mr. 
Pichon's  credentials,  by  which  it  appeared,  that  he  had  not  only  been 
appointed  commissary-general  of  commercial  relations,  but  also  charge 
d'affaires  of  the  French  republic ;  his  continuance  in  the  latter  charac- 
ter, however,  being  limited,  until  a  minister  plenipotentiary  should 
arrive  in  the  United  States  from  France.  It  appeared  by  Mr.  Pichon's 
deposition,  that  the  minister.  General  Toureau,  had  arrived  in  the 
United  States,  about  the  12th  of  November,  1804;   that  in  compliance 

of  the  Persian  embassy  for  the  purpose  of  escaping  bankruptcy,  diplomatic 
immunity  from  suit  was  disallowed.  In  re  Cloete,  65  L.  T.  R.  102,  7  Times  R. 
565  (1891). 

In  other  words,  for  the  immunity  to  attach,  the  claimant  must  be  actually  and 
bona  fide  in  the  diplomatic  service,  either  as  agent  or  servant;  if  the  claim  be 
colorable  merely  it  will  be  rejected.  On  this  point  the  authorities  are  numer- 
ous and  unanimous:  Lockwood  v.  Dr.  Coysgarne,  .3  Burr.  1676  (1765);  Fisher 
V.  Begrez,  1  C.  &  M,  117  (1832);.  same  case,  2  C.  &  M.  240,  and  cases  cited  in 
argument  of  case  as  reported  in  1  C.  &  M.  117.  While  the  diplomatic  agent  may 
waive  immunity  of  his  servant,  he  cannot  in  the  United  States  waive  his  own 
immunitv,  as  this  is  the  privilege  of  his  state,  not  a  personal  privilege.  U.  S. 
V.  Benner,  Bald.  234,  Fed.  Cas.  No.  14,568  (1830),  post,  p.  297. 

12  Shippen,  Chief  Justice,  and  Smith  and  Brackonridge,  Justices,  composed 
the  court. 


292  RIGHTS  AND   DUTIES   OF  NATIONS  IN   TIME   OP  PEACE       (Part  t 

with  Mr.  Pichon's  instructions  from  his  government,  he  had  been 
anxiously  making  all  the  necessary  arrangements  for  his  return  to 
France  with  his  family;  that  his  detention  in  tlie  United  States,  since 
the  arrival  of  General  Toureau,  had  solely  and  exclusively  been  owing 
to  the  business  of  closing  his  official  transactions  as  charge  d'affaires, 
and  to  the  delay  in  receiving  his  public  papers  and  documents,  which 
were  shipped  in  a  vessel  from  Alexandria  for  Philadelphia,  but  were 
carried  into  New  York  in  consequence  of  the  obstructed  navigation  of 
the  Delaware;  and  to  the  impracticability  of  obtaining  a  passage  for 
Europe,  at  the  port  of  Philadelphia,  for  considerable  time  past ;  that 
Mr.  Pichon  had  never,  in  the  slightest  degree,  abandoned  or  suspended 
his  intention  of  returning  to  France ;  but  on  the  contrary,  was  de- 
termined to  go  thither,  with,  all  possible  dispatch,  as  soon  as  the  ob- 
stacles, which  he  had  stated,  should  be  removed,  and  the  condition  of 
his  family  would  permit.  It  was  further  stated  in  the  deposition,  that, 
during  the  time  of  Mr.  Pichon's  executing  the  functions  of  charge 
d'affaires,  and  before  the  arrival  of  General  Toureau,  it  becaWe'Jiis_ 
offi^cial  dutv  to  superintend  and  direct  the  equipment  and  supply  of 
certain  Freiich  frigates,  lying  in  the  harbor  of  New  York;  that  he 
employed  the  plaintiff  in  that  business,  to  make  tne  necessary  advances 
of  money;  and  for  his  reimbursement  gave  him  certain  bills  of  ex- 
change on  France,  drawn,  however,  on  his  private  bankers;  that  the 
plaintiff  well  knew  that  Mr.  Pichon  acted  in  the  premises,  merely  as 
public  agent  of  the  French  republic,  and  is  not  indebted  to  the  plaintiff 
on  his  private  account;  nor  in  any  other  manner,  than  as  the  drawer 
of  the  bills  of  exchange,  which  were  delivered  to  the  plaintiff,  by  tlie 
French  consul  at  New  York;  and  the  fate  of  which  Mr.  Pichon  had 
not  definitely  heard.^^ 

Upon  these  facts,  it  was  urged:  That  although  no  privilege  was 
claimed  for  Mr.  Pichon,  as  consul,  he  was  entitled  to  privilege,  as 
charge  d'affaires,  eundo,  morando  et  reduendo.  1  U.  S.  Stat.  117, 
118,  §  25-27  [Comp.  St.  5§  7611-7614]  ;  Vatt.  lib.  4,  c.  6,  §  74,  75, 
pp.  675,  676;  Id.  c.  7,  §  83,  p.  682;  Id.  c.  9,  §  125,  p.  726;  Id.  c. 
8,  §  111,  p.  713;  Mart.  206.  That  he  was  not  bound  to  produce 
any  testimonials  of  his  diplomatic  character,  the  notoriety  of  his  re- 
ception by  the  President,  being  all  that  the  nature  of  the  case  or  uni- 
form usage  required.  That  a  day's  delay,  in  recognising  the  privilege 
of  a  public  minister,  to  obtain  certificates  from  our  own  government, 
must  either  compel  him  to  give  bail,  or  to  submit  to  actual  imprison- 
ment; and  that  the  precedent  established  on  this  occasion  "would  at- 
tract the  serious  attention  of  every  foreign  minister  and  government. 

13  After  Mr.  Pichon  was  discharged  from  the  process  in  this  suit,  the  plain- 
tiff issued  another  capias  from  the  Circuit  Court  of  the  United  States;  but, 
before  the  writ  was  served,  information  arrived  that  the  bills  drawn  in  favor 
of  the  plaintiff  had  been  paid  by  the  French  government,  and  the  proceedings 
were  suspended,  after  notice  of  a  motion  to  quash  the  writ  on  the  ground  of 
privilege. 


Ch.  4)  JURISDICTION   OF   STATES  293 

It,  therefore,  became  highly  important  to  claim  and  obtain  the  dis- 
charge, on  the  single  ground  of  diplomatic  privilege,  without  adverting 
to  the  official  origin  of  the  debt,  for  which  the  suit  was  instituted ;  a.nd 
for  which  Mr.  Pichon  ought  never  to  be  deemed  personally  respon- 
sible.   See  Jones  v.  Le  Tombe,  3  Dall.  384,  1  L.  Ed.  647. 

Ingersoll,  Wallace  and  Binney  disputed  the  extent  of  the  privilege ; 
and  the  sufficiency  of  the  excuse  for  Mr.  Pichon's  protracted  residence 
in  the  United  States,  after  General  Toureau's  arrival.  They  insisted^ 
that  the  appointment  as  charge  d'affaires  was  limited  in  its  own  terms ; 
that  his  arrival  and  continuance  in  the  United  States  were,  principally, 
on  account  of  his  consular  commission ;  and  that,  at  least,  proof  should 
be  produced  from  the  secretary  of  state,  of  his  reception  as  a  min- 
ister, before  he  was  discharged  from  the  capias,  upon  the  claim  of  priv- 
ilege. 

The  Court  were  decidedly  of  opinion,  that  Mr.  Pichon  would  be 
entjtledto  pjivilege  as  charge  d'affaires,  until  his  return  to  France; 
but_Chief  Justice  Shippen  seemed  inclined  to  wait  for  information, 
from  the  department  of  state,  as  to  his  actual  reception  by  the  President 
in  that  character.  On  its  being  intimated,  however,  that' the  attorney 
of  the  district  had  become  responsible  to  the  sheriff  for  Mr.  Pichon's 
appearance,  only  until  the  sense  of  the  court  could  be  obtained;  and 
that  Mr.  Pichon  must  now,  probably,  submit  to  imprisonment  under 
the  capias,  "the  judges  concurred  in  discharging  him  absolutely  from 
the  process.^* 


WILSON  v.  BLANCO. 

(Superior  Court  of  the  City  of  New  York,  1889.    4  N.  T.  Supp.  714.) 

Appeal  from  an  order  of  the  special  term  vacating  the  judgment  in 
this  action  and  setting  aside  the  service  of  the  summons  therein  upon 
Guzman  Blanco. 

The  following  opinion  was  delivered  by  the  court  at  special  term : 
O'GoRMAN,  J.  Guzman  Blanco,  being  an  envoy  extraordinary  and 
minister  plenipotentiary,  duly  accredited  from  Venezuela  to  France, 
and  recognized  as  such  by  the  government  of  the  United  States,  and 
while  in  the  city  of  New  York,  waiting  to  take  early  means  of  convey- 
ance from  this  city  to  France,  was  served  with  a  summons  in  this 
action.  Failing  to  make  any  appearance  in  the  action,  judgment  was 
recovered  against  him  for  the  sum  of  $2,194,535.34. 

14  In  Musurus  Bey  v.  Gadban  and  Others,  L.  R.,  2  Q.  B.  Div.  352  (1894)  it 
was  held,  according  to  the  headnote.  that: 

"The  immunity  of  an  ambassador  from  process  in  the  courts  of  this  country 
extends  not  merely  to  the  time  during  which  he  is  accredited  to  the  sovereign, 
but  to  such  a  reasonable  period  after  he  has  presented  his  letters  of  recall 
as  is  necessary  to  enable' him  to  wind  up  his  official  business  and  prepare 
for  his  return  to  his  own  country,  and  he  is  not  deprived  of  the  immunity  by 
reason  that  his  successor  is  duly  accredited  before  that  period  has  elapsed." 


294  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   PEACE       (Part  1 

A  motion  is  now  made  to  set  aside  the  judgment,  and  vacate  the 
service  of  summons  upon  him,  on  the  ground  that  he  was,  when  so 
served,  an  ambassador,  and  as  such,  not  amenable  to  any  civil  suit 
brought  against  him  in  this  city  or  state. 

It  is  conceded  for  the  purposes  of  this  motion  that  he  could  not  law- 
fully have  been  arrested,  while  thus  in  the  city  of  New  York,  and 
this  concession  is  in  accordance  with  the  judgment  of  this  court  in  Hol- 
brook  v.  Henderson,  6  N.  Y,  Super.  Ct.  626.  The  court  there,  how- 
ever, went  farther,  and  expressed  the  opinion  that  the  privilege  of  an 
ambassador  extended  to  immunity  against  all  civil  suits  sought  to  be 
instituted  against  him  in  the  courts  of  the  country  to  which  he  was 
accredited,  as  well  as  in  those  of  a  friendly  country  through  which  he 
was  passing  on  his  way  to  the  scene  of  his  diplomatic  labors,  and  to 
this  privilege  the  learned  court  held  that  he  was  entitled,  as  rep- 
resentative of  his  sovereign,  and  also  because  it  was  necessary  for 
his  free  and  unimpeded  exercise  of  his  diplomatic  duties. 

This  opinion  of  the  Superior  Court  is  in  accord  with  that  of  Wheat- 
on,  as  set  forth  in  his  book  on  the  Law  of  Nations,  in  which  he  has 
collected  and  condensed  the  views  of  numerous  jurists  of  recognized 
authority  on  the  subject.    Wheaton's  Law  of  Nations,  p.  240  et  seq. 

This  rule  of  international  law  derives  support  from  the  legal  fic- 
tion that  an  ambassador  is  not  an  inhabitant  of  the  country  to  which 
he  is  accredited,  but  of  the  country  of  his  origin  and  whose  sovereign 
he  represents,  and  within  whose  territory  he,  in  contemplation  of  law, 
always  abides. 

When,  therefore,  a  claim  is  made  against  him  in  the  country  to 
which  he  is  sent,  for  payment  of  a  debt  incurred  by  him,  the  creditor 
must  proceed  against  him  exactly  as  if  he  were  not  resident  there, 
and  as  if  he  had  not  contracted  the  debt  there,  and  as  if  he  had  no 
property  there,  in  his  quality  of  ambassador.  Wheaton's  Law  of 
Nations,  p.  242. 

If  he  has  contracted  debts,  and  has  no  real  property  in  the  country 
to  which  he  is  sent,  he  should  be  requested  to  make  payment,  and, 
in  case  of  refusal,  application  should  be  made  to  his  sovereign ;  and  as 
a  necessary  consequence  of  this  rule  of  extraterritorial  residence,  he 
is  always  considered  as  retaining  his  original  domicile,  and  may  be 
proceeded  against  in  the  competent  court  of  his  own  country,  and 
he  cannot  set  up  the  plea  of  absence  in  the  service  of  the  state  as  a 
bar  to  a  suit  in  the  domestic  forum,  since  the  law  supposes  him  still 
to  be  present  there. 

From  these  views,  I  am  led  to  the  conclusion  that  the  service  made 
on  Guzman  Blanco  in  this  case,  and  the  judgment  entered  against 
him,  are  of  no  force  and  void. 

The  fact,  rather  suggested  than  positively  averred  in  the  complaint, 
that  he  was  connected  as  a  partner  in  a  mercantile  business  in  New 
York,  is  not  material. 


Ch.  4)  JURISDICTION   OP  STATES  295 

It  does  not  appear  that  the  cause  of  action  arose  out  of  that  mer- 
cantile relation,  or  business,  or  out  of  any  contract  or  transaction 
which  arose  in  the  state  of  New  York,  or  the  United  States. 

The  motion  to  vacate  the  judgment  against  Guzman  Blanco,  and  to 
set  aside  the -service  of  the  summons  upon  him,  is  granted,  with  ten 
dollars  costs." 


III.  Protectiox  to  Diplomatic  Agents 
RESPUBLICA  V.  DE  LONGCHAMPS. 

(Court  of  Oyer  and  Terminer  at  Philadelphia,  1784.    1  Dall.  Ill,  1  L,  Ed.  59.) 

McKean,  Chief  Justice. ^^  Charles-Julian  De  Longchamps:  You 
have  been  indicted  for  unlawfully  and  violently  threatening  and  men- 
acing bodily  harm  and  violence  to  the  person  of  the  honorable  Francis- 
Barbe  de  Marbois,  Secretary  to  the  Legation  from  France,  and  Con- 
sul General  of  France  to  the  United  States  of  America,  in  the  man- 
sion-house  of  the  Minister  Plenipotentiary  of  France ;  and  for  an 
assault  and  battery  committed  upon  the  said  Secretary  and  Consul,  in 
a  public  street  in  the  City  of  Philadelphia.  To  this  indictment  you 
have  pleaded  that  you  were  not  guilty,  and  for  trial  put  yourself  up- 
on the  country, — an  unbiased  jury,  upon  a  fair  trial,  and  clear  evi- 
dence, have  found  you  guilty.  *  *  *  Jt  only  remains  for  the  Court 
to  pronounce  sentence  upon  you.  This  sentence  must  be  governed  by 
a  due  consideration  of  the  enormity  and  dangerous  tendency  of  the 
offenses  you  have  committed,  of  the  wilfulness,  deliberation,  and 
malice,  wherewith  they  were  done,  of  the  quality  and  degree  of  the 
offended  and  offender,  the  provocation  given,  and  all  other  circum- 
stances which  may  in  any  way  aggravate  or  extenuate  the  guilt. 

The  first  crime  in  the  indictment  is  an  infraction  of  the  law  of  Na- 
tions. This  law,  in  its  full  extent,  is  part  of  the  law  of  this  State, 
and  is  to  be  collected  from  the  practice  of  different  Nations,  and  the  au- 
thority of  writers. 

The  person  of  a  public  minister  is  sacred  and  inviolable.  Who- 
ever offers^ny  violence  to  him,  not  only  affronts  the  Sovereign  he  rep- 
resents, but  also  hurts  the  common  safety  and  well-being  of  nations ;  he 
is  guilty  of  a  crime  against  the  whole  world. 

All  the  reasons,  which  establish  the  independency  and  inviolability 

16  In  the  case  of  New  Chile  Gold  Mining  Co.  v.  Blanco  et  al.,  4  Times 
Law,  346  (1SS8),  the  court  took  time  to  eunsiaer  its  judgment  and  delivered  it 
in  favor  of  the  defendants,  on  the  ground  that,  in  the  exercise  of  their  .iudicial 
discretion,  they  did  not  eonsidor  it  right  to  allow  a  foreign  minister  (Blanco), 
resident  at  a  foreign  court  (France),  to  be  sued  in  the  courts  of  England,  at 
all  events  on  a  cause  of  action  not  arising  in  England.  The  case  was,  how- 
jever,  decided  on  another  point. 

^6  Only  so  much  of  the  ca.se  is  given  in  this  connection  as  relates  to  the 
assault  and  battery  committed  upon  the  French  Secretary  of  Legation.  For 
the  part  of  the  case  dealing  with  extradition,  see  infra,  p.  404. 


296  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

of  the  person  of  a  Minister,  apply  likewise  to  secure  the  immunities 
of  his  house:  It  is  to  be  defended  from  all  outrage;  it  is  under  a 
peculiar  protection  of  the  laws ;  to  invade  its  freedom  is  a  crime  against 
the  State  and  all  other  nations.     *     *     * 

The  second  offense  charged  in  the  indictment,  namely  the  assault 
and  battery,  needs  no  observations. 

Upon  the  whole  the  Court  after  a  most  attentive  consideration  of 
every  circumstance  in  this  case,  do  award,  and  direct  me  to  pronounce 
the  following  sentence : 

That  you  pay  a  fine  of  one  hundred  French  crowns  to  the  Common- 
wealth; that  you  be  imprisoned  until  the  4th  day  of  July,  1786,  which 
will  make  a  little  more  than  two  years'  imprisonment  in  the  whole; 
that  you  then  give  good  security  to  keep  the  peace,  and  be  of  good 
behaviour  to  afl  public  Ministers,  Secretaries  to  Embassies,  and  Con- 
suls, as  well  as  to  all  the  liege  people  of  Pennsylvania,  for  the  space 
of  seven  years,  by  entering  into  a  recognizance,  yourself  in  a  thousand 
pounds,  and  two  securities  in  five  hundred  pounds  each;  that  you  pay 
the  costs  of  this  prosecution,  and  remain  committed  until  this  sentence 
be  complied  with,^^ 

IT  In  United  States  v.  Liddle,  2  Wash.  C.  C.  205,  Fed.  Cas.  No.  15.598  (1808), 
the  defendant  was  indicted  for  assault  and  battery  upon  one  De  Lima,  attach- 
ed to  the  legation  of  Spain,  and  executing  the  duties  of  secretary  of  legation. 
Mr.  Justice  Washington,  before  whom  the  case  was  tried,  held,  according  to 
the  headnote  of  the  report,  that  "the  law  is  the  same  in  the  case  of  a  defendant 
charged  with  an  assault  of  a  minister,  as  when  charged  with  the  same  of- 
fence against  a  citizen ;  and  if  the  minister  gave  the  first  assault,  the  defend- 
ant will  be  excused  for  the  subsequent  battery,  though  he  was  a  minister." 

In  United  States  v.  Hand,  2  Wash.  C.  C.  4.35,  Fed.  Cas.  No.  15,297  (1810), 
the  defendant  was  indicted  for  assault  upon  the  Charg§  d'Affaires  of  Russia, 
and  for  infracting  the  law  of  nations,  by  offering  violence  to  the  person  of 
the  said  minister.  Mr.  Justice  Washington,  before  whom  the  case  was  tried 
at  circuit,  held,  according  to  the  headnote  of  the  report,  that:  "The  law  of 
nations  identifies  the  property  of  the  foreign  minister,  attached  to  his  person, 
or  in  his  use,  with  his  person.  To  insult  them,  is  an  attack  on  the  minister 
and  his  sovereign ;  and  it  appears  to  have  been  the  intention  of  the  act  of 
Congress,  to  punish  offences  of  this  kind.  To  constitute  an  offence  against  a 
foreign  minister,  the  defendant  must  have  known  that  the  house  on  which  the 
attack  was  made  was  the  domicile  of  a  minister;  or  otherwise,  it  is  only  an 
offence  against  the  municipal  laws  of  the  state." 

In  United  States  v.  Ortega,  4  Wash.  C.  C.  531,  Fed.  Cas.  No.  15,971  (1825), 
the  defendant  was  indicted  for  assaulting  one  Mr.  Salmon,  Charge  d'Affaires  of 
Spain,  and  for  infracting  the  law  of  nations  by  committing  violence  upon  his 
person.  This  case  was  likewise  tried  before  Mr.  Justice  Washington,  at  cir- 
cuit, who  said,  in  the  course  of  his  opinion:  "A  foreign  minister,  by  commit- 
ting the  first  assault,  so  far  loses  his  privilege,  that  he  cannot  complain  of 
an  infraction  of  the  law  of  nations;  if  in  his  turn,  he  should  be  assaulted  by 
the  party  aggrieved.    This  was  decided  by  this  court  in  Liddle's  Case." 


Ch.  4)  JURISDICTION   OP   STATES  297 


UNITED  STATES  v.  BENNER. 

(Circuit  Court  of  the  United  States  for  the  Eastern  District  of  Pennsylvania, 
1830.    Baldw.  234,  Fed.  Cas.  No.  14,568.) 

The  defendant  was  indicted  under  the  twenty-fifth,  twenty-sixth 
and  twenty-seventh  sections  of  the  act  of  1790, — 1  Story's  Laws,  88, 
89  (1  Stat.  117,  118  [Comp.  St.  §§  7611-7613]),— for  arresting  and  im- 
prisoning Louis  Brandis,  a  minister  of  the  king  of  Denmark.  The  in- 
dictment contained  four  counts:  (1)  Stating  Mr.  Brandis  to  be  a  pub- 
lic minister,  to  wit,  a  secretary  of  legation.  (2)  A  public  minister,  to 
wit,  an  attache  to  the  legation  of  the  king  of  Denmark.  (3)  A  minister 
received  as  such  by  the  President  of  the  United  States.  (4)  An  at- 
tache received  as  such,  etc.     *     *     * 

Baldwin,  Circuit  Justice  (charging  jury).  By  the  Constitution 
of  the  United  States,  the  power  of  receiving  ambassadors,  and  other 
public  ministers,  is  vested  in  the  president  of  the  United  States;  this 
power  is  plenary  and  supreme,  with  which  no  other  department  of 
the  government  can  interfere,  and  when  exercised  by  the  President, 
carries  with  it  all  the_  sanction  wHic'h^'tR^^onstitution  can  give  jtoan 
act  done  by  its  authority.  In  the  reception  of  ambassadors  and  min- 
isters, the  President  is  the  government,  he  judges  of  the  mode  of  recep- 
tion, and  by  the  act  of  reception,  the  person  so  received  becomes  at 
once  clothed  with  all  the  immunities  which  the  law  of  nations  and 
the  United  States  attach  to  the  diplomatic  character. 

The  evidence  of  the  reception  of  Mr.  Brandis  in  the  character,  is 
the  certificate  from  the  secretary  of  state  which  has  been  read.  By 
the  law  organizing  the  department  of  state,  it  is  the  special  duty  of 
this  officer,  to  perform  all  such  duties  as  shall  be  entrusted  to  him  by 
the  President,  to  conduct  the  business  of  the  department  in  such  man- 
ner as  he  shall  order  and  instruct,  also  to  take  an  oath  for  the  faithful 
performance  of  his  duties.  He  is  denominated  in  the  law,  "the  secre- 
tary of  foreign  affairs;"  his  appropriate  duties  are,  correspondence 
and  communication  with  foreign  ministers  under  the  orders  of  the 
President ;  he  has  the  custody  of  all  the  papers  and  archieves  of  the 
department  in  relation  to  the  concerns  of  the  United  States  with  for- 
eign nations.  Whatever  act  then  is  done  by  that  department  must  be 
taken  to  be  done  by  the  orders  or  instructions  of  the  President;  the 
certificate  of  the  secretary,  under  the  seal,  oath,  and  responsibility  of 
office,  must  also  be  taken  as  full  evidence  of  the  act  certified.  The 
President  acts  in  that  department  through  the  secretary^fl^  Sne  di- 
rects, the  other  performs  the  duties  assigned;  the  law  makes  that  de- 
partment with  all  its  officers,  the  agent  of  the  executive  branch  of 
the  government,  so  that  a  certificate  under  its  seal  by  the  secretary  is 
full  evidence,  that  what  has  been  done  by  the  department  has  been 
done  by  it  in  that  capacity.  If  the  law  imposed  on  that  department  any 
duties  upon  subjects  over  which  the  president  had  no  control,  or  none 


298  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Pait  1 

exclusive  of  the  other  branches  of  the  government,  a  certificate  from 
its  chief  officer  would  not  be  evidence  that  it  was  done  by  the  Presi- 
dent; but  as  it  can  act  on  no  subject  unless  under  his  orders,  its  acts 
must  be  taken  to  be  his,  especially  as  to  the  reception  of  ministers, 
as  to  which  Congress  has  no  power  to  enjoin  any  duties  on  the  depart- 
ment, or  its  officers. 

You  will  therefore  consider  Mr.  Brandis  as  having  been  recognized 
by  the  president  in  the  character  of  attache  to  the  legation  of  Den- 
mark in  the  United  States ;  and  that  such  recognition  is,  per  se,  an 
authorization  and  reception  of  him,  within  the  meaning  of  the.  act  of 
Congress,  for  we  cannot  presume,  that  the  President  would  recognize 
a  minister,  without  receiving  him.  InJ  the  case  of  U.  S.  v.  Liddle, 
Fed.  Cas.  No.  15,598,  it  was  held  by  this  court  that  a  certificate  from 
the  secretary  of  state,  that  a  charge  d'affaires  of  Spain,  had  intro- 
duced a  person  to  the  President  as  an  attache  and  secretary  to  that 
legation,  was  evidence  of  his  reception  as  such.  U.  S.  v.  Liddle,  su- 
pra; U.  S.  v.  Ortega,  Fed.  Cas.  No.  15,971.  Such_recognition  in- 
vests him  with  the  immunities  of  a  minister,  in  whatever  form  it  may 
be  done,  and  no  court  or  jury  can  require  any  other  evidence  of  a 
reception :  we  instruct  you  then,  as  a  matter  of  law,  that  at  the  time  of 
the  alleged  arrest,  Mr.  Brandis  was  a  minister  of  Denmark  in  the  char- 
acter stated  in  the  certificate. 

The  only  remaining  question  is,  whether  he  was  arrested,  impris- 
oned, or  violence  offered  to  his  person  by  the  defendant.  An  arrest 
is  the  taking,  seizing  or  detaining  the  person  of  another,  touching  or 
putting  hand  upon  him  in  the  execution  of  process,  or  any  act  in- 
dicating an  intention  to  arrest.  Imprisoniiient  is  the  detention  of  an- 
other against  his  will,  depriving  him  of  the  power  of  locomotion ;  if 
you  believe  the  witnesses,  the  evidence  fully  establishes  these  charges 
in  the  indictment.  Whether  Mr.  Brandis  submitted  or  consented  to 
the  arrest  is  not  material.  The  privileges  of  a  foreign  minister  are  not 
personal,  nor  is  their  violation  punished  as  an  injury  to  himself,  the 
immunity  from  arrest  is  the  privilege  of  the  sovereign  who  sends  him, 
the  injury  is  done  to  him,  in  the  person  of  his  representative.  The  laws 
of  nations  protect  the  minister,  that  he  may  not  be  obstructed  in  the 
business  of  his  mission,  his  person  is  as  inviolable  as  his  sovereign, 
within  whose  territory  he  is  presumed  to  reside. 

Hence  the  laws  of  the  country  to  which  he  is  sent  can  no  more  be 
enforced  against  him,  than  in  the  country  from  whence  he  came; 
being  considered  as  in  the  territory  of  his  own  sovereign,  no  other 
has  any  jurisdiction  over  him.  The  consent  of  the  sovereign  to  the 
violation  of  the  rights  and  privileges  which  belong  to  himself,  either 
in  person  or  in  his  representative,  are  equally  necessary,  whether  the 
minister  resides  in  a  foreign  country  or  his  own.  The  general  law 
of  all  nations,  as  well  as  the  municipal  laws  of  each,  exempt  ministers 
from  all  jurisdiction  or  control  over  their  persons,  so  long  as  their 


Ch.  4)  JURISDICTION   OF   STATES  299 

representative  character  is  recognized  by  the  government  which  sends 
or  receives  them;  if  they  exercise  the  functions  of  ministers,  or  re- 
tain that  character,  their  exemptions  attach  to  their  office  whether 
they  claim  it  or  not.  There  is  no  principle  of  national  law,  or  any 
word  in  the  act  of  Congress,  which  justifies  the  arrest  of  a  minister 
who  waives  the  privileges  of  diplomatic  character,  you  will  therefore 
dismiss  ^11  considerations  of  this  kind  from  your  minds,  but  though 
tihe  person  of  a  minister  is  inviolable,  yetjie  is  not  exempted  from  the 
law  of  self  defense;  if  he  unlawfully  assaults  another,  the  attack  fti'ay 
be  repelled  by  as  much'  force  as  will  prevent  its  continuance  or  repe- 
tition. The  counsel  for  the  defendant  has  endeavoured  to  bring  his 
case  within  this  principle,  by  evidence  that  he  received  a  blow  from 
Mr.  Brandis;  were  the  fact  so,  however,  it  would  be  no  justification 
of  the  arrest  on  process,  which  is  not  a  right  of  self  defense. 

It  is  objected  to  this  prosecution,  that  the  defendant  was  not  an 
officer  within  the  meaning  of  the  law;  but  this  objection  cannot  avail 

him,  the  warrant  was  directed  "to  the  constable  of ward,"  the 

defendant  assumed  and  acted  in  that  character  in  the  execution  of 
the  warrant,  and  must  be  considered  as  one  de  facto  estopped  by  his 
acts  from  denying  it. 

It  is  next  contended  that  it  must  be  proved  that  the  defendant  knew 
Mr.  Brandis  to  be  a  minister  at  the  time  of  the  arrest ;  the  law  does  not 
make  knowledge  an  ingredient  in  the  offence,  the  case  meets  fully  the 
definition  of  the  oft'ence  prohibited  by  the  act  of  Congress,  which,  as 
a  general  rule,  is  all  that  is  requisite  to  find  a  verdict  of  guilty ;  this 
objection  has  been  overruled  by  this  court  in  other  cases — U.  S.  v. 
Liddle,  supra;   U.  S.  v.  Ortega,  supra, — and,  we  think,  very  properly. 

The  jury  found  the  defendant  guilty  on  the  second  count,  charging, 
"that  the  said  Peter  R.  Benner,  afterwards,  to  wit,  etc.,  with  force 
and  arms,  did  imprison  the  said  Louis  R.  Brandis,  he,  the  said  Louis 
R.  Brandis,  then  and  there  being  a  public  minister,  to  wit,  an  attache 
to  the  legation  of  his  majesty  the  king  of  Denmark,  near  the  United 
States  of  America,  in  manifest  infraction  of  the  law  of  nations,  con- 
trary," etc.     *     *     *  18 

IS  Part  of  the  opinion  of  Baldwin,  Circuit  Justice,  and  the  opinion  of  Hop- 
kinson,  District  Judge,  are  omitted.  Counsel  for  the  defendant  moved  for  a 
new  trial,  which  was  overruled,  as  was  also  his  motion  in  arrest  of  judgment. 

In  the  course  of  the  principal  case,  Mr.  Justice  Baldwin  stated  that  the  im- 
munity of  a  diplomatic  agent  is  the  right  of  his  country,  not  the  privilege 
of  the  diplomatic  agent  who  represents  it. 

This  view  was  followed  to  the  letter  in  the  trial  of  one  Guiteau  for  the 
assassination  of  President  Garfield,  in  the  city  of  Washington  on  the  2d  day 
of  July,  1881. 

The  testimony  of  Senor  Camacho,  chargS  d'affaires  of  Venezuela,  was  de- 
sired as  a  witness  for  the  prosecution.  The  following  extract  from  the  oflScial 
proceedings  on  this  occasion  sufficiently  shows  the  course  of  action  followed: 

"Simon  Camacho  called. 

"The  District  Attorney  :  If  your  honor  please,  before  the  gentleman  is  sworn, 
I  desire  to  state,  or  rather  I  think  it  is  due  the  witness  to  state,  that  he 


300  RIGHTS  AND   DUTIES   OF  NATIONS   IN  TIME   OF   PEACE       (Part  1 

IV.  PuBuc  Vessels  and  Military  Forces 

THE  EXCHANGE  v.  M'FADDON  et  al. 
■  (Supreme  Court  of  the  United  States,  1812.    7  Cranch,  116,  3  L.  Ed.  2S7.) 

This  being  a  cause  in  which  the  sovereign  right  claimed  by  Napoleon, 
the  reigning  Emperor  of  the  French,  and  the  political  relations  be- 
tween the  United  States  and  France,  were  involved,  it  was,  upon  the 
suggestion  of  the  Attorney  General,  ordered  to  a  hearing,  in  preference 
to  other  causes  which  stood  before  it  on  the  docket. 

Appeal  from  the  sentence  of  the  circuit  court  of  the  United  States 
for  the  district  of  Pennsylvania. 

The  schooner  Exchange,  owned  by  John  M'Faddon  and  William 
Greetham,  sailed  from  Baltimore,  October  27,  1809,  for  St.  Sebastians, 
in  Spain.  On  the  30th  of  December,  1810,  she  was  seized  by  the 
order  of  Napoleon  Bonaparte;  and  was  then  armed  and  commis- 
sioned as  a  public  vessel  of  the  French  government,  under  the  name 
of  Balaou.  On  a  voyage  to  the  West  Indies,  she  put  into  the  port 
of  Philadelphia,  in  July,  1811,  and  on  the  24th  of  August  was  libelled 
by  the  original  owners.  As  no  claimant  appeared,  Mr.  Dallas,  the" 
attorney  of  the  United  States  for  the  district  of  Pennsylvania  filed 
(at  the  suggestion  of  the  executive  department  of  the  United  States, 
it  is  believed)  a  suggestion  that  inasmuch  as  there  was  peace  between 
France  and  the  United  States,  the  public  vessels  of  the  former  may 
enter  into  the  ports  and  harbors  of  the  latter  and  depart  at  will 
without  seizure  or  detention  in  any  way. 

The  district  judge  dismissed  the  libel,  on  the  ground  that  a  public 
armed  vessel  of  a  foreign  power  at  peace  with  the  United  States,  is 
not  subject  to  the  ordinary  judicial  tribunals  of  the  country,  so  far 
as  regards  the  question  of  title,  by  which  the  foreign  sovereign  claims 
to  hold  her. 

The  libellants  appealed  to  the  circuit  court,  where  the  sentence  was 
reversed — from  the  sentence  of  reversal,  the  district  attorney  appealed 
to  this  court.^' 

is  the  minister  from  "Venezuela  to  tjiis  government,  and  entitled  under  the 
law  governing  diplomatic  relations  to  be  relieved  from  service  by  subpoena 
or  sworn  as  a  witness  in  any  case.  Under  the  instructions  of  his  government, 
owing  to  the  friendship  of  that  government  for  the  United  States,  and  the 
great  respect  for  the  memory  of  the  man  who  was  assassinated,  they  have  in- 
structed him  to  waive  his  rights  and  appear  as  a  witness  in  the  case,  the  same 
as  any  witness  who  is  a  citizen  of  this  country. 

"Simon  Camacho  sworn  and  examined." 

1  Report  of  tiie  Proceedings  in  the  Case  of  the  United  States  v.  Charles  J. 
Guiteau,  1881,  Washington  (1882)  p.  136. 

18  The  statement  of  the  original  report  is  omitted,  and  a  shorter  statement 
therefor  is  substituted. 

The  Exchange  can  be  justly  considered  as  the  leading  case  for  the  right  of  a 
state  to  exercise  exclusive  jurisdiction  within  its  territories.    It  notes  the 


Ch.  4)  JURISDICTION   OF   STATES  301 

March  3,  1812,  all  the  judges  being  present. 

MarshalIv,  Chief  Justice,  delivered  the  opinion  of  the  court,  as 
follows : 

This  case  involves  the  very  delicate  and  important  inquiry,  whether 
an  American  citizen  can  assert,  in  an  American  court,  a  title  to  an 
armed  national  vessel,  found  within  the  waters  of  the  United  States. 

The  question  has  been  considered  with  an  earnest  solicitude,  that 
the  decision  may  conform  to  those  principles  of  national  and  munici- 
pal law  by  which  it  ought  to  be  regulated. 

In  exploring  an  unbeaten  path,  with  few,  if  any  aids,  from  prec- 
edents or  written  law,  the  court  has  found  it  necessary  to  rely 
much  on  general  principles,  and  on  a  train  of  reasoning,  founded  on 
cases  in  some  degree  analogous  to  this. 

The  jurisdiction  of  courts  is  a  branch  of  that  which  is  possessed 
by  the  nation  as  an  independent  sovereign  power. 

The  jurisdiction  of  the  nation  within  its  own  territory  is  neces- 
sarily exclusive  and  absolute.  It  is  susceptible  of  no  limitation  not 
imposed  by  itself.  Any  restriction  upon  it,  deriving  validity  from  an 
external  source,  would  imply  a  diminution  of  its  own  sovereignty  to 
the  extent  of  the  restriction,  and  an  investment  of  that  sovereignty 
to  the  same  extent  in  that  power  which  could  impose  such  restrictions. 

All  exceptions,  therefore,  to  the  full  and  complete  power  of  a 
nation  within  its  own  territories,  must  be  traced  up  to  the  consent 
of  the  nation  itself.    They  can  flow  from  no  other  legitimate  source. 

This  consent  may  be  either  express  or  implied.  In  tlie  latter 
case,  it  is  less  determinate,  exposed  more  to  the  uncertainties  of  con- 
struction; but,  if  understood,  not  less  obligatory. 

The  world  being  composed  of  distinct  sovereignties,  possessing 
equal  rights  and  equal  independence,  whose  mutual  benefit  is  promot- 
ed by  intercourse  with  each  other,  and  by  an  interchange  of  those 
good  offices  which  humanity  dictates  and  its  wants  require,  all  sov- 
ereigns have  consented  to  a  relaxation  in  practice,  in  cases  under 
certain  peculiar  circumstances,  of  that  absolute  and  complete  juris- 
diction within  their  respective  territories  which   sovereignty  confers. 

This  consent  may,  in  some  instances,  be  tested  by  common  usage, 
and  by  common  opinion,  growing  out  of  that  usage. 

A  nation  would  justly  be  considered  as  violating  its  faith,  although 
that  faith  might  not  be  expressly  plighted,  which  should  suddenly  and 
without  previous  notice,  exercise  its  territorial  powers  in  a  manner 
not  consonant  to  the  usages  and  received  obligations  of  the  civilized 
world. 

exceptions  which  exist  by  virtue  of  treaty  or  practice  and  it  Is  the  leading  case 
for  these  exceptions  and  the  reasons  by  which  they  are  justified. 

The  reasoning,  as  so  often  happens  with  Chief  Justice  Marshall,  is  so  close 
and  so  connected  that  the  entire  text  of  his  judgment  is  printed,  without  at- 
tempting to  separate  it  into  what  might  be  considered  its  component  parts. 


302  RIGHTS  AND   DUTIES  OF  NATIONS  IN   TIME  OF   PEACE       (Part  1 

This  full  and  absolute  territorial  jurisdiction  being  alike  the  at- 
tribute of  every  sovereign,  and  being  incapable  of  conferring  extra- 
territorial power,  would  not  seem  to  contemplate  foreign  sovereigns 
nor  their  sovereign  rights  as  its  objects.  One  sovereign  being  in  no 
respect  amenable  to  another,  and  being  bound  by  obligations  of  the 
highest  character  not  to  degrade  the  dignity  of  his  nation,  by  placing 
himself  or  its  sovereign  rights  within  the  jurisdiction  of  another, 
can  be  supposed  to  enter  a  foreign  territory  only  under  an  express 
license,  or  in  the  confidence  that  the  immunities  belonging  to  his  in- 
dependent sovereign  station,  though  not  expressly  stipulated,  are  re- 
served by  implication,  and  will  be  extended  to  him. 

This  perfect  equality  and  absolute  independence  of  sovereigns, 
and  this  common  interest  impelling  them  to  mutual  intercourse,  and 
an  interchange  of  good  offices  with  each  other,  have  given  rise  to  a 
class  of  cases  in  which  every  sovereign  is  understood  to  waive  the 
exercise  of  a  part  of  that  complete  exclusive  territorial  jurisdiction, 
which  has  been  stated  to  be  the  attribute  of  every  nation. 

1st.  One  of  these  is  admitted  to  be  the  exemption  of  the  person 
of  the  sovereign  from  arrest  or  detention  within  a  foreign  territory. 

If  he  enters  that  territory  with  the  knowledge  and  license  of  its 
sovereign,  that  license,  although  containing  no  stipulation  exempt- 
ing his  person  from  arrest,  is  universally  understood  to  imply  such 
stipulation. 

Why  has  the  whole  civilized  world  concurred  in  this  construc- 
tion? The  answer  cannot  be  mistaken.  A  foreign  sovereign  is  not 
understood  as  intending  to  subject  himself  to  a  jurisdiction  incom- 
patible with  his  dignity  and  the  dignity  of  his  nation,  and  it  is  to 
avoid  this  subjection  that  the  license  has  been  obtained.  The  char- 
acter to  whom  it  is  given,  and  the  object  for  which  it  is  granted, 
equally  require  that  it  should  be  construed  to  impart  full  security 
to  the  person  who  has  obtained  it.  This  security,  however,  need 
not  be  expressed;  it  is  implied  from  the  circumstances  of  the  case. 
Should  one  sovereign  enter  the  territory  of  another,  without  the 
consent  of  that  other,  expressed  or  implied,  it  would  present  a  ques- 
tion which  does  not  appear  to  be  perfectly  settled,  a  decision  of 
which  is  not  necessary  to  any  conclusion  to  which  the  court  may  come 
in  the  cause  under  consideration.  If  he  did  not  thereby  expose  him- 
self to  the  territorial  jurisdiction  of  the  sovereign,  whose  dominions 
he  had  entered,  it  would  seem  to  be  because  all  sovereigns  impliedly  en- 
gage not  to  avail  themselves  of  a  power  over  their  equal,  which  a 
romantic  confidence  in  their  magnanimity  has  placed  in  their  hands. 

2d.  A  second  case,  standing  on  the  same  principles  with  the  first, 
is  the  immunity  which  all  civilized  nations  allow  to  foreign  ministers. 

Whatever  may  be  the  principle  on  which  this  immunity  is  establish- 
ed, whether  we  consider  him  as  in  the  place  of  the  sovereign  he  rep- 
resents, or  by  a  political  fiction  suppose-  him  to  be  extra-territorial,  and 
therefore,  in  point  of  law,  not  within  the  jurisdiction  of  the  sovereign 


Ch.  4)  JUEISDICTION   OF   STATES  303 

at  whose  court  he  resides;  still  the  immunity  itself  is  granted  by  the 
governing  power  of  the  nation  to  which  the  minister  is  deputed,  his 
fiction  of  extra-territoriality  could  not  be  erected  and  supported  against 
the  will  of  the  sovereign  of  the  territory.    He  is  supposed  to  assent  to  it. 

This  consent  is  not  expressed.  It  is  true  that  in  some  countries, 
and  in  this  among  others,  a  special  law  is  enacted  for  the  case.  But 
the  law  obviously  proceeds  on  the  idea  of  prescribing  the  punishment 
of  an'  act  previously  unlawful,  not  of  granting  to  a  foreign  minister 
a  privilege  which  he  would  not  otherwise  possess. 

The  assent  of  the  sovereign  to  the  very  important  and  extensive  ex- 
emptions from  territorial  jurisdiction  which  are  admitted  to  attach  to 
foreign  ministers,  is  implied  from  the  considerations  that,  without 
such  exemption,  every  sovereign  would  hazard  his  own  dignity  by 
employing  a  public  minister  abroad.  His  minister  would  owe  tem- 
porary and  local  allegiance  to  a  foreign  prince,  and  would  be  less 
competent  to  the  objects  of  his  mission.  A  sovereign  committing 
the  interests  of  his  nation  with  a  foreign  power,  to  the  care  of  a 
person  whom  he  has  selected  for  that  purpose,  cannot  intend  to 
subject  his  minister  in  any  degree  to  that  power ;  and  therefore  a 
consent  to  receive  him,  implies  a  consent  that  he  shall  possess  those 
privileges  which  his  principal  intended  he  should  retain,  privileges 
which  are  essential  to  the  dignity  of  his  sovereign,  and  to  the  duties 
he  is  bound  to  perform. 

In  what  cases  a  minister,  by  infracting  the  laws  of  the  country  in 
which  he  resides,  may  subject  himself  to  other  punishment  than  will 
be  inflicted  by  his  own  sovereigrl,  is  an  inquiry  foreign  to  the  present 
purpose.  If  his  crimes  be  such  as  to  render  him  amenable  to  the  local 
jurisdiction,  it  must  be  because  they  forfeit  the  privileges  annexed  to 
his  character ;  and  the  minister,  by  violating  the  conditions  under  which 
he  was  received  as  the  representative  of  a  foreign  sovereign,  has  sur- 
rendered the  immunities  granted  on  those  conditions ;  or,  according  to 
the  true  meaning  of  the  original  assent,  has  ceased  to  be  entitled  to 
them. 

3d.  A  third  case  in  which  a  sovereign  is  understood  to  cede  a 
portion  of  his  territorial  jurisdiction  is,  where  he  allows  the  troops 
of  a  foreign  prince  to  pass  through  his  dominions. 

In  such  case,  without  any  express  declaration  waiving  jurisdic- 
tion over  the  army  to  which  this  right  of  passage  has  been  granted, 
the  sovereign  who  should  attempt  to  exercise  it  would  certainly  be 
considered  as  violating  his  faith.  By  exercising  it,  the  purpose  for 
which  the  free  passage  was  granted  would  be  defeated,  and  a  por- 
tion of  the  military  force  of  a  foreign  independent  nation  would  be 
diverted  from  those  national  objects  and  duties  to  which  it  was  ap- 
plicable, and  would  be  withdrawn  from  the  control  of  the  sovereign 
whose  power  and  whose  safety  might  greatly  depend  on  retaining  the 
exclusive  command  and  disposition  of  this  force.    The  grant  of  a  free 


304-  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

passage,  therefore,  implies  a  waiver  of  all  jurisdiction  over  the  troops 
during  their  passage,  and  permits  the  foreign  general  to  use  that  discip- 
line, and  to  inflict  those  punishments  which  the  government  of  his  army 
may  require. 

But  if,  without  such  express  permit,  an  army  should  be  led  through 
the  territories  of  a  foreign  prince,  might  the  jurisdiction  of  the  terri- 
tory be  rightfully  exercised  over  the  individuals  composing  this  army? 

Without  doubt  a  military  force  can  never  gain  immunities  of  any 
other  description  than  those  which  war  gives,  by  entering  a  foreign 
territory  against  the  will  of  its  sovereign.  But  if  his  consent,  instead 
of  being  expressed  by  a  particular  license,  be  expressed  by  a  general 
declaration  that  foreign  troops  may  pass  through  a  specified  tract  of 
country,  a  distinction  between  such  general  permit  and  a  particular  li- 
cense is  not  perceived.  It  would  seem  reasonable  that  every  immunity 
which  would  be  conferred  by  a  special  license,  would  be,  in  like  man- 
ner conferred  by  such  general  permit.  We  have  seen  that  a  license  to 
pass  through  a  territory  implies  immunities  not  expressed,  and  it  is 
material  to  inquire  why  the  license  itself  may  not  be  presumed.^" 

It  is  obvious  that  the  passage  of  an  army  through  a  foreign  territory 
will  probably  be  at  all  times  inconvenient  and  injurious,  and  would  of- 
ten be  imminently  dangerous  to  the  sovereign  through  whose  dominion 
it  passed.  Such  a  practice  would  break  down  some  of  the  most  de- 
cisive distinctions  between  peace  and  war,  and  would  reduce  a  na- 
tion to  the  necessity  of  resisting  by  war  an  act  not  absolutely  hostile 
in  its  character,  or  of  exposing  itself  to  the  stratagems  and  frauds  of 
a  power  whose  integrity  might  be  doubted,  and  who  might  enter  the 
country  under  deceitful  pretexts.  It  is  for  reasons  like  these  that  the 
general  license  to  foreigners  to  enter  the  dominions  of  a  friendly  pow- 
er, is  never  understood  to  extend  to  a  military  force;  and  an  army 
marching  into  the  dominions  of  another  sovereign,  may  justly  be 
considered  as  committing  an  act  of  hostility;  and  if  not  opposed  by 
force,  acquires  no  privileges  by  its  irregular  and  improper  conduct. 
It  may,  however,  well  be  questioned  whether  any  other  than  the  sov- 
ereign power  of  the  state  be  capable  of  deciding  that  such  military 
commander  is  without  a  license. 

But  the  rule  which  is  applicable  to  armies,  does  not  appear  to  be 
equally  applicable  to  ships  of  war  entering  the  ports  of  a  friendly 

20  In  Neal  Dow  v.  Johnson,  100  U.  S.  158,  at  170,  25  L.  Ed.  632  (1879),  Field, 
J.,  speaking  for  the  court,  said :  "The  question  here  is,  what  is  the  law  which 
governs  an  army  invading  an  enemy's  country?  It  is  not  the  civil  law  of  the 
invaded  country;  it  is  not  the  civil  law  of  the  conquering  country;  it  is 
military  law — the  law  of  war — and  its  supremacy  for  the  protection  of  the 
ofl3cers  and  soldiers  of  the  army,  when  in  service  in  the  field  in  the  enemy's 
country,  is  as  essential  to  the  efficiency  of  the  army  as  the  supremacy  of  the 
civil  law  at  home,  and,  in  time  of  peace,  is  essential  to  the  preservation  of 
liberty."  To  the  same  effect,  Coleman  v.  Tennessee,  97  U.  S.  509,  24  L.  Ed. 
1118  (1878),  per  Field,  J.  In  like  manner,  a  State  court  may  not  exercise 
jurisdiction  for  violation  of  a  State  statute  in  a  military  reservation.  Wills  v. 
State,  3  Heisk.  (Tenn.)  141  (1871). 


Ch.  4)  JURISDICTION    OF   STATES  305 

power.  The  injury  inseparable  from  the  march  of  an  army  through 
an  inhabited  country  and  the  dangers  often,  indeed  generally,  at- 
tending it,  do  not  ensue  from  admitting  a  ship  of  war,  without  spe- 
cial license,  into  a  friendly  port.  A  different  rule,  therefore,  with 
respect  to  this  species  of  military  force  has  been  generally  adopted. 
If,  for  reasons  of  state,  the  ports  of  a  nation  generally,  or  any  par- 
ticular ports  he  closed  against  vessels  of  war  generally,  or  the  vessels 
of  any  particular  nation,  notice  is  usually  given  of  such  determina- 
tion. If  there  be  no  prohibition,  the  ports  of  a  friendly  nation  are 
considered  as  open  to  the  public  ships  of  all  powers  with  whom  it 
is  at  peace,  and  they  are  supposed  to  enter  such  ports  and  to  remain 
in  them  while  allowed  to  remain,  under  the  protection  of  the  govern- 
ment of  the  place. 

In  almost  every  instance,  the  treaties  between  civilized  nations  con- 
tain a  stipulation  to  this  effect  in  favor  of  vessels  driven  in  by  stress 
of  weather  or  other  urgent  necessity.  In  such  cases  the  sovereign  is 
bound  by  compact  to  authorize  foreign  vessels  to  enter  his  ports.  The 
treaty  bids  him  to  allow  vessels  in  distress  to  find  refuge  and  asylum 
in  his  ports,  and  this  is  a  license  which  he  is  not  at  liberty  to  retract. 
It  would  be  difficult  to  assign  a  reason  for  withholding  from  a  license 
thus  granted,  any  immunity  from  local  jurisdiction  which  would  be 
implied  in  a  special  license. 

If  there  be  no- treaty  applicable  to  the  case,  and  the  sovereign,  from 
motives  deemed  adequate  by  himself,  permits  his  ports  to  remain  open 
to  the  public  ships  of  foreign  friendly  powers,  the  conclusion  seems 
irresistible,  that  they  enter  by  his  assent.  And  if  they  enter  by  his  as- 
sent necessarily  implied,  no  just  reason  is  perceived  by  the  court  for 
distinguishing  their  case  from  that  of  vessels  which  enter  by  express 
assent.  In  all  the  cases  of  exemption  which  have  been  reviewed,  much 
has  been  implied;  but  the  obligation  of  what  was  implied  has  been 
found  equal  to  the  obligation  of  that  which  was  expressed.  Are  there 
reasons  for  denying  the  application  of  this  principle  to  ships  of  war? 

In  this  part  of  the  subject  a  difficulty  is  to  be  encountered,  the  seri- 
ousness of  which  is  acknowledged,  but  which  the  court  will  not  attempt 
to  evade. 

These  treaties  which  provide  for  the  admission  and  safe  depart- 
ure of  public  vessels  entering  a  port  from  stress  of  weather,  or  other 
urgent  cause,  provide  in  like  manner  for  the  private  vessels  of  the 
nation;  and  where  public  vessels  enter  a  port  under  the  general  li- 
cense which  is  implied  merely  from  the  absence  of  a  prohibition,  they 
are,  it  may  be  urged,  in  the  same  condition  with  merchant  vessels  en- 
tering the  same  port  for  the  purposes  of  trade  who  cannot  thereby 
claim  any  exemption  from  the  jurisdiction  of  the  country.  It  may  be 
contended,  certainly  with  much  plausibility  if  not  correctness,  that 
the  same  rule,  and  same  principle  are  applicable  to  public  and  private 
Scott  Int.Law — 20 


306  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   PEACE       (Part  1 

ships ;  and  since  it  is  admitted  that  private  ships,  entering  without 
special  license  become  subject  to  the  local  jurisdiction,  it  is  demanded 
on  what  authority  an  exception  is  made  in  favor  of  ships  of  war. 

It  is  by  no  means  conceded,  that  a  private  vessel  really  availing 
herself  of  an  asylum  provided  by  treaty,  and  not  attempting  to  trade, 
would  become  amenable  to  the  local  jurisdiction  unless  she  committed 
some  act  forfeiting  the  protection  she  claims  under  compact.  On  the 
contrary,  motives  may  be  assigned  for  stipulating  and  according  im- 
munities to  vessels  in  cases  of  distress,  which  would  not  be  demanded 
for,  or  allowed  to  those  which  enter  voluntarily,  and  for  ordinary  pur- 
poses. On  this  part  of  the  subject,  however,  the  court  does  not  mean 
to  indicate  any  opinion.  The  case  itself  may  possibly  occur,  and  ought 
not  to  be  prejudiced. 

Without  deciding  how  far  such  stipulations  in  favor  of  distressed 
vessels,  as  are  usual  in  treaties,  may  exempt  private  ships  from  the 
jurisdiction  of  the  place,  it  may  safely  be  asserted  that  the  whole 
reasoning  upon  which  such  exemption  has  been  implied  in  other  cases, 
applies  with  full  force  to  the  exemption  of  ships  of  war  in  this. 

"It  is  impossible  to  conceive,"  says  Vattel,  "that  a  prince  who  sends 
an  ambassador  or  any  other  minister  can  have  any  intention  of  sub- 
jecting him  to  the  authority  of  a  foreign  power,  and  this  considera- 
tion furnishes  an  additional  argument,  which  completely  establishes 
the  independency  of  a  public  minister.  If  it  cannot  be  reasonably 
presumed  that  his  sovereign  means  to  subject  him  to  the  authority 
of  the  prince  to  whom  he  is  sent,  the  latter,  in  receiving  the  minis- 
ter, consents  to  admit  him  on  the  footing  of  independency;  and  thus 
there  exists  between  the  two  princes  a  tacit  convention,  which  gives 
a  new  force  to  the  natural  obligation." 

Equally  impossible  is  it  to  conceive,  whatever  may  be  the  construc- 
tion as  to  private  ships,  that  a  prince  who  stipulates  a  passage  for 
his  troops,  or  an  asylum  for  his  ships  of  war  in  distress,  should  mean 
to  subject  his  army  or  his  navy  to  the  jurisdiction  of  a  foreign  sover- 
eign. And  if  this  cannot  be  presumed,  the  sovereign  of  the  port  must 
be  considered  as  having  conceded  the  privilege  to  the  extent  in  which 
it  must  have  been  understood  to  be  asked. 

To  the  court,  it  appears,  that  where,  without  treaty,  the  ports  of 
a  nation  are  open  to  the  private  and  pubHc  ships  of  a  friendly  pow- 
er, whose  subjects  have  also  liberty  without  special  license,,  to  enter 
the  country  for  business  or  amusement,  a  clear  distinction  is  to  be 
drawn  between  the  rights  accorded  to  private  individuals  or  private 
trading  vessels,  and  those  accorded  to  public  armed  ships  which  con- 
stitute a  part  of  the  military  force  of  the  nation. 

The  preceding  reasoning,  has  maintained  the  propositions  that 
all  exemptions  from  territorial  jurisdiction  must  be  derived  from  the 
consent  of  the  sovereign  of  the  territory;    that  this  consent  may  be 

Scott  Int.Law 


Ch.  4)  •  JURISDICTION   OF   STATES  307 

implied  or  expressed ;  and  that,  when  impHed,  its  extent  must  be 
regulated  by  the  nature  of  the  case  and  the  views  under  which  the 
parties  requiring  and  conceding  it  must  be  supposed  to  act. 

When  private  individuals  of  one  nation  spread  themselves  through 
another  as  business  or  caprice  may  direct,  mingling  indiscriminately 
with  the  inhabitants  of  that  other,  or  when  merchant  vessels  enter  for 
the  purposes  of  trade,  it  would  be  obviously  inconvenient  and  danger- 
ous to  society,  and  would  subject  the  laws  to  continual  infraction,  and 
the  government  to  degradation,  if  such  individuals  or  merchants  did 
not  owe  temporary  and  local  allegiance,  and  were  not  amenable  to  the 
jurisdiction  of  the  country.  Nor  can  the  foreign  sovereign  have  any 
motive  for  wishing  such  exemption.  His  subjects  thus  passing  into  for- 
eign countries,  are  not  employed  by  him,  nor  are  they  engaged  in  na- 
tional pursuits.  Consequently  there  are  powerful  motives  for  not  ex- 
empting persons  of  this  description  from  the  jurisdiction  of  the  coun- 
try in  which  they  are  found,  and  no  one  motive  for  requiring  it.  The 
implied  license,  therefore,  under  which  they  enter,  can  never  be  con- 
strued to  grant  such  exemption.  But  in  all  respects  different  is  the 
situation  of  a  pubHc  armed  ship.  She  constitutes  a  part  of  the  military 
force  of  her  nation ;  acts  under  the  immediate  and  direct  command  of 
the  sovereign;  is  employed  by  him  in  national  objects.  He  has  many 
and  powerful  motives  for  preventing  those  objects  from  being  defeated 
by  the  interference  of  a  foreign  state.  Such  interference  cannot  take 
place  without  affecting  his  power  and  his  dignity.  The  implied  license, 
therefore,  under  which  such  vessel  enters  a  friendly  port,  may  reason- 
ably be  construed,  and,  it  seems  to  the  court,  ought  to  be  construed,  as 
containing  an  exemption  from  the  jurisdiction  of  the  sovereign,  within 
whose  territory  she  claims  the  rites  of  hospitality. 

Upon  these  principles,  by  the  unanimous  consent  of  nations,  a  for- 
eigner is  amenable  to  the  laws  of  the  place ;  but  certainly  in  prac- 
tice, nations  have  not  yet  asserted  their  jurisdiction  over  the  public 
armed  ships  of  a  foreign  sovereign,  entering  a  port  open  for  their 
reception. 

Bynkershoek,  a  jurist  of  great  reputation,  has  indeed  maintained 
that  the  property  of  a  foreign  sovereign  is  not  distinguishable  by  any 
legal  exemption  from  the  property  of  an  ordinary  individual,  and  has 
quoted  several  cases  in  which  courts  have  exercised  jurisdiction  over 
causes  in  which  a  foreign  sovereign  was  made  a  party  defendant. 

Without  indicating  any  opinion  on  this  question,  it  may  safely  be 
affirmed,  that  there  is  a  manifest  distinction  between  the  private  prop- 
erty of  the  person  who  happens  to  be  a  prince,  and  that  military  force 
which  supports  the  sovereign  power,  and  maintains  the  dignity  and  the 
independence  of  a  nation.  A  prince,  by  acquiring  private  property  in 
a  foreign  country,  may  possibly  be  considered  as  subjecting  that  prop- 
erty to  the  territorial  jurisdiction;  he  may  be  considered  as  so  far  lay- 
ing down  the  prince,  and  assuming  the  character  of  a  private  individ- 


308  RIGHTS  AND   DUTIES   OF  NATIONS  IN  TIME  OF   PEACE       (Part  1' 

ual;  but  this  he  cannot  be  presumed  to  do  with  respect  to  any  por- 
tion of  that  armed  force,  which  upholds  his  crown,  and  the  nation  he 
is  intrusted  to  govern. 

The  only  applicable  case  cited  by  Bynkershoek,  is  that  of  the  Spanish 
ships  of  war,  seized  in  Flushing  for  a  debt  due  from  the  King  of  Spain. 
In  that  case  the  states  generally  interposed ;  and  there  is  reason  to  be- 
lieve, from  the  manner  in  which  the  transaction  is  stated,  that,  either 
by  the  interference  of  government,  or  the  decision  of  the  court,  the 
vessels  were  released.  This  case  of  the  Spanish  vessels  is,  it  is  believed, 
the  only  case  furnished  by  the  history  of  the  world,  of  an  attempt  made 
by  an  individual  to  assert  a  claim  against  a  foreign  prince,  by  seizing 
the  armed  vessels  of  the  nation.  That  this  proceeding  was  at  once  ar- 
rested by  the  government,  in  a  nation  which  appears  to  have  asserted 
the  power  of  proceeding  in  the  same  manner  against  the  private  proper- 
ty of  the  prince,  would  seem  to  furnish  no  feeble  argument  in  support 
of  the  universality  of  the  opinion  in  favor  of  the  exemption  claimed  for 
ships  of  war.  The  distinction  made  in  our  own  laws  between  public  and 
private  ships  would  appear  to  proceed  from  the  same  opinion. 

It  seems,  then,  to  tne  court,  to  be  a  principle  of  public  law,  that  na- 
tional ships  of  war,  entering  the  port  of  a  friendly  power  open  for 
their  reception,  are  to  be  considered  as  exempted  by  the  consent  of 
that  power  from  its  jurisdiction. 

Without  doubt,  the  sovereign  of  the  place  is  capable  of  destroy- 
ing this  implication.  He  may  claim  and  exercise  jurisdiction,  either 
by  employing  force,  or  by  subjecting  such  vessels  to  the  ordinary  tribu- 
nals. But,  until  such  power  be  exerted  in  a  manner  not  to  be  mis- 
understood, the  sovereign  dannot  be  considered  as  having  imparted  to 
the  ordinary  tribunals  a  jurisdiction,  which  it  would  be  a  breach  of 
faith  to  exercise.  Those  general  statutor>'  provisions,  therefore, 
which  are  descriptive  of  the  ordinary  jurisdiction  of  the  judicial  tribu- 
nals, which  give  an  individual  whose  property  has  been  wrested  from 
him,  a  right  to  claim  that  property  in  the  courts  of  the  country  in  which 
it  is  found,  ought  not,  in  the  opinion  of  this  court,  to  be  so  construed  as 
to  give  them  jurisdiction  in  a  case  in  which  the  sovereign  power  has 
impHedly  consented  to  waive  its  jurisdiction. 

The  arguments  in  favor  of  this  opinion  which  have  been  drawn 
from  the  general  inability  of  the  judicial  power  to  enforce  its  decisions 
in  cases  of  this  description,  from  the  consideration  that  the  sover- 
eign power  of  the  nation  is  alone  competent  to  avenge  wrongs  com- 
mitted by  a  sovereign,  that  the  questions  to  which  such  wrongs  give 
birth  are  rather  questions  of  policy  than  of  law,  that  they  are  for  dip- 
lomatic, rather  than  legal  discussion,  are  of  great  weight,  and  merit 
serious  attention.  But  the  argument  has  already  been  drawn  to  a  length 
which  forbids  a  particular  examination  of  these  points. 

The  principles  which  have  been  stated  will  now  be  applied  to  the 
case  at  bar. 


Ch.  4)  JURISDICTION   OF  STATES  309 

In  the  present  state  of  the  evidence  and  proceedings,  the  Exchange 
must  be  considered  as  a  vessel  which  was  the  property  of  the  hbellants, 
whose  claim  is  repelled  by  the  fact,  that  she  is  now  a  national  armed 
vessel,  commissioned  by,  and  in  the  service  of  the  Emperor  of  France. 
The  evidence  of  this  fact  is  not  controverted.  But  it  is  contended  that 
it  constitutes  no  bar  to  an  inquiry  into  the  validity  of  the  title,  by  which 
the  emperor  holds  this  vessel.  Every  person,  it  is  alleged,  who  is  en- 
titled to  property  bro\ight  within  the  jurisdiction  of  our  courts,  has  a 
right  to  assert  his  title  in  those  courts,  unless  there  be  some  law  taking 
his  case  out  of  the  general  rule.  It  is  therefore  said  to  be  the  right, 
and  if  it  be  the  right,  it  is  the  duty  of  the  court,  to  inquire  whether  this 
title  has  been  extinguished  by  an  act,  the  validity  of  which  is  recog- 
nized by  national  or  municipal  law. 

If  the  preceding  reasoning  be  correct,  the  Exchange,  being  a  public 
armed  ship,  in  the  service  of  a  foreign  sovereign,  with  whom  the  gov- 
ernment of  the  United  States  is  at  peace,  and  having  entered  an  Ameri- 
can port  open  for  her  reception,  on  the  terms  on  which  ships  of  war 
are  generally  permitted  to  enter  the  ports  of  a  friendly  power,  must 
be  considered  as  having  come  into  the  American  territory,  under  an 
implied  promise,  that  while  necessarily  within  it,  and  demeaning  her- 
self in  a  friendly  manner,  she  should  be  exempt  from  the  jurisdiction 
of  the  country.*^    If  this  opinion  be  correct,  there  seems  to  be  a  neces- 

21  "It  appc^ars  by  your  communication  of  the  1st  ult.  that  on  the  2r)th  of 
November  last,  a  British  man-of-war,  the  President,  was  lying  in  the  Bay  of 
San  Francisco,  in  the  state  of  California,  wherein  she  had  entered,  accom- 
panied with  a  Russian  vessel,  the  Sitka,  alleged  to  be  prize  of  war  to  said 
ship  President;  that  on  board  the  Sitka  was  a  prize  crew,  commanded  by 
an  officer  of  the  British  navy ;  that  on  the  day  aforesaid,  a  petition  was  pre- 
sented to  a  competent  judge  of  the  state  of  California,  in  the  name  of  one 
Nystrom  and  of  one  Blom,  alleging  that  they  were  unlawfully  confined  and  de- 
tained on  board  the  Sitka  by  the  prize  officer  and  crew  thereof,  and  praying 
for  the  issue  of  a  writ  of  habeas  corpus,  directed-  to  such  prize  officer  and 
crew,  for  the  purpose  of  having  the  legality  of  such  confinement  and  detention 
inquired  into,  according  to  the  laws  of  the  state;  that  the  court  thei-cupon 
granted  the  writ,  which  was  duly  served  by  manual  delivery  of  copy  to  the 
officer  in  command  of  the  Sitka ;  and  that  thereupon,  without  obeying  the 
order  of  said  writ,  and  in  disregard  thereof,  the  commander  of  the  Sitka  im- 
mediately got  under  way,  and  departed  from  the  jurisdiction  of  the  state  of 
California. 

"It  further  appears  that,  on  these  facts  being  duly  reported  to  the  Gover- 
nor of  the  statp  of  California,  he  has  communicated  the  same  to  the  Executive 
of  the  United  States,  and  asks  redress  in  the  premises,  as  for  a  public  wrong 
to  the  judicial  and  political  authorities  of  the  state  of  California  and  of  the 
United   States.  ^     ^     ^    ^ 

"Whereupon  you  submit  the  question — Whether  the  conduct  of  the  prize 
•commander  of  the  Sitka,  under  these  circumstances,  constitutes  a  just  cause 
of  complaint  on  the  part  of  this  government,  under  the  law  of  nations  or  any 
treaty  between  the  United  States  and  a  foreign  power?     •     ♦     * 

"It  being  thus  demonstrated  that  the  Sitka  was  rightfully  within  the  port 
of  San  Francisco,  it  only  remains  to  consider  what  jurisdiction,  if  any,  the 
United  States  had  .over  prisoners  of  war,  if  any  there  were,  on  board  the 
Sitka      *     *     * 

"Our  courts  have  also  adopted  unetiuivocally  the  doctrine  that  a  public  ship 
of  war  of  a  foreign  sovereign,  at  peace  with  the  United  States,  coming  into 


310  RIGHTS  AND   DUTIES   OP   NATIONS   IN   TIME   OF   PEACE       (Part  1 

sity  for  admitting  that  the  fact  might  be  disclosed  to  the  court  by  the 
suggestion  of  the  attorney  for  the  United  States. 

I  am  directed  to  dehver  it,  as  the  opinion  of  the  court,  that  the  sen- 
tence of  the  circuit  court,  reversing  the  sentence  of  the  district  court, 
in  the  case  of  the  Exchange  be  reversed,  and  that  of  the  district  court, 
dismissing  the  Hbel,  be  affirmed. ^^ 

our  ports  and  demeaning  herself  in  a  friendly  manner,  is  exempt  from  the 
jurisdiction  of  the  country.    *     ♦     • 

"From  all  these  premises,  the  consequences  are  inevitable  in  regard  to  the 
prisoners  on  board  the  Sitka.  So  long  as  they  remained  on  board  that  ship, 
they  were  in  the  territory  and  jurisdiction  of  her  sovereign.  There  the  neu- 
tral has  no  right  to  meddle  with  them.  If,  indeed,  they  be  landed,  then  they 
pass  from  the  jurisdiction  of  the  belligerent  to  that  of  the  neutral ;  they  be- 
come practically  free,  because  their  detention  is  forcible,  and  force  cannot  be 
exercised  on  the  neutral  territory,  unless,  indeed,  the  neutral  consent  to  their 
being  landed,  and  afterwards  re-embarked,  as  it  well  might,  from  motives  of 
humanity,  for  instance,  to  succor  the  sick  or  wounded,  without  any  violation 
of  its  neutrality,  or  any  derogation  from  its  own  rights  of  territorial  sovereign- 
ty.   Hautefeuille,  torn,  ii,  p.  157. 

"I  conclude,  for  these  reasons,  that  the  courts  of  the  state  of  California  had 
no  jurisdiction  whatever  as  to  tliese  prisoners  on  board  the  Sitka." 

Caleb  Gushing,  Attorney  General,  to  Secretary  of  State  Marcy,  April  28, 
1855,  7  Op.  Attys.  Gen.  123. 

22  In  The  Constitution,  L.  R.  4  Pro.  Div.  39  (1879),  the  facts  and  the  holding 
of  the  High  Court  of  Admiralty  were,  according  to  the  headnote,  as  follows : 

"A  vessrf  of  war  commissioned  by  the  government  of  a  foreign  state,  and 
engaged  in  the  national  service  of  her  government,  was  stranded  on  the  coast 
of  England.  She  had  a  cargo  of  machinery  on  board  her,  alleged  to  belong  to 
private  individuals,  of  which  her  government  had  for  public  purposes  charged 
itself  with  the  care  and  protection.  Important  and  efficient  salvage  services 
were  rendered  to  the  ship  and  her  cargo.  A  suit  was  instituted  on  behalf  of 
certain  of  the  salvors  against  the  ship  and  her  cargo.  The  court  refused  to 
order  a  warrant  to  issue  for  the  arrest  of  the  ship  or  cargo,  and  held  it  had 
no  jurisdiction  to  entertain  the  suit." 

It  is  interesting  to  note  that  the  vessel  in  this  case  was  none  other  than 
the  United  States  frigate  Constitution,  famous  for  its  exploits  in  the  earlier 
days  of  the  Republic,  and  especially  in  the  War  of  1812.  It  had  been  sent  to 
France  to  bring  home  certain  exhibits  of  the  United  States  to  the  Paris  Exhibi- 
tion of  1878.  For  another  case  involving  the  Constitution,  see  Commodore 
Stewart's  Case,  post,  p.  1039. 

In  The  Parlement  Beige,  L.  R.  5  Prob.  Div.  197  ( 1880) ,  the  facts  and  deci- 
sion of  the  Court  of  Appeals  are  thus  stated  in  the  headnote  to  the  case : 

"As  a  consequence  of  the  absolute  independence  of  every  sovereign  authority 
and  of  the  international  comity  which  induces  every  sovereign  state  to  re- 
spect the  independence  of  every  other  sovereign  state,  each  state  declines  to 
exercise  by  means  of  any  of  its  courts  any  of  its  territorial  jurisdiction  over 
the  person  of  any  sovereign  or  ambassador,  or  over  the  public  property  of  any 
state  which  is  destined  to  its  public  use,  or  over  the  property  of  any  am- 
bassador, though  such  sovereign,  ambassador,  or  property  be  within  its  terri- 
tory. 

"Held,  therefore,  reversing  the  decision  of  the  Admiralty  Division,  that  an 
unarmed  packet  belonging  to  the  sovereign  of  a  foreign  state,  and  in  the  hand^ 
of  officers  commissioned  by  him,  and  employed  in  carrying  mails,  is  not  liable 
to  be  seized  in  a  suit  in  rem  to  recover  redress  for  a  collision,  and  this  immuni- 
ty is  not  lost  by  reason  of  the  packet's  also  carrying  merchandise  and 
passengers  for  hire." 

In  the  course  of  the  opinion  of  this  case,  the  principal  case  of  The  Exchange, 
7  Cranch,  116,  3  L.  Ed.  287  (1812),  is  cited,  quoted,  and  relied  upon. 


Ch.  4)  JURISDICTION   OF   STATES  '  311 

V.  Consuls  May  be:  Exempt  by  Treaty,  Not  by  the  Law  of 

Nations 

BARBUIT'S  CASE. 

(High  Court  of  Chancery,  1737.    Cas.  t,  Talbot,  2S1.) 

Barbuit  had  a  commission,  as  agent  of  commerce  from  the  King 
of  Prussia  in  Great  Britain  in  the  year  1717,  which  was  accepted 
here  by  the  Lords  Justices  when  the  King  was  abroad.  After  the  late 
King's  demise  his  commission  was  not  renewed  until  1735,  and 
then  it  was,  and  allowed  in  a  proper  manner;  but  with  the  recital  of 
the  powers  given  him  in  the  commission,  and  allowing  him  as  such. 
These  commissions  were  directed  generally  to  all  the  persons  whom 
the  same  should  concern  and  not  to  the  King:  and  his  business  de- 
scribed in  the  commissions  was,  to  do  and  execute  what  his  Prussian 
Majesty  should  think  fit  to  order  with  regard  to  his  subjects  trading  in 
Great  Britain ;  to  present  letters,  memorials,  and  instruments  con- 
cerning trade,  to  such  persons,  and  at  such  places  as  should  be  con- 
venient, and  to  receive  resolutions  thereon;  and  thereby  his  Prussian 
Majesty  required  all  persons  to  receive  writings  from  his  hands, 
and  give  him  aid  and  assistance.  Barbuit  lived  here  near  twenty  years, 
and  exercised  the  trade  of  a  tallow-chandler,  and  claimed  the  privi- 
lege of  an  ambassador  or  foreign  minister,  to  be  free  from  arrests. 
After  hearing  counsel  on  this  point : 

Lord  Chancellor  [Talbot]  .  A  bill  was  filed  in  this  court  against 
the  defendant  in  1725,  upon  which  he  exhibited  his  cross  bill,  styl- 
ing himself  merchant.  On  the  hearing  of  these  causes  the  cross  bill 
was  dismissed ;  and  in  the  other,  an  account  decreed  against  the  de- 
fendant. The  account  being  passed  before  the  master,  the  defendant 
took  exceptions  to  the  master's  report,  which  were  overruled ;  and 
then  the  defendant  was  taken  upon  an  attachment  for  non-payment, 
&c.  And  now,  ten  years  after  the  commencement  of  the  suit,  he  in- 
sists he  is  a  public  minister,  and  therefore  all  the  proceedings  against 
him  null  and  void.  Though  this  is  a  very  unfavourable  case,  yet  if  the 
defendant  is  truly  a  public  minister,  I  think  he  may  now  insist  upon 
it;  for  the  privilege  of  a  public  minister  is  to  have  his  person  sacred 
and  free  from  arrests,  not  on  his  own  account,  but  on  account  of  those 
he  represents,  and  this  arises  from  the  necessity  of  the  thing,  that  na- 
tions may  have  intercourse  with  one  another  in  the  same  manner  as 
private  persons,  by  agents,  when  they  cannot  meet  themselves.  And 
if  the  foundation  of  this  privilege  is  for  the  sake  of  the  prince  by 
whom  an  ambassador  is  sent,  and  for  sake  of  the  business  he  is  to 
do,  it  is  impossible  that  he  can  renounce  such  privilege  and  protection : 
for,  by  his  being  thrown  into  prison  the  business  must  inevitably 
sufifer.     The  question  is,  whether  the  defendant  is  such  a  person  as 


812  RIGHTS  AND  DUTIES  OP  NATIONS   IN  TIME  OF  PEACE       (Part  1 

7  Anne,  cap.  10,  describes,  which  is  only  declaratory  of  the  antient  uni- 
versal jus  gentium;  the  words  of  the  statute  are  "ambassadors  or 
other  public  ministers,"  and  the  exception  of  persons  trading  relates 
only,  to  their  servants ;  the  Parliament  never  imagining  that  the  min- 
isters themselves  v/ould  trade.  I  do  not  think  the  words  "ambassa- 
dors, or  other  public  ministers,"  are  synonymous.  I  think  that  the 
word  "ambassadors"  in  the  act  of  Parliament,  was  intended  to  sig- 
nify ministers  sent  upon  extraordinary  occasions,  which  are  commonly 
called  "ambassadors  extraordinary"  ;  and  "public  ministers"  in  the 
act  taken  in  all  others  who  constantly  reside  here;  and  both  are  en- 
titled to  these  privileges.  The  question  is,  whether  the  defendant  is 
within  the  latter  words?  It  has  been  objected  that  he  is  not  a  public 
minister,  because  he  brings  no  credentials  to  the  King.  Now  although 
it  be  true  that  this  is  the  most  common  form,  yet  it  would  be  carrying 
it  too  far  to  say,  that  these  credentials  are  absolutely  necessary ;  be- 
cause all  nations  have  not  the  same  forms  of  appointment.  It  has  been 
said,  that  to  make  him  a  public  minister  he  must  be  employed  about 
state  affairs.  In  which  case,  if  state  affairs  are  used  in  opposition 
to  commerce,  it  is  wrong;  but  if  only  to  signify  the  business  between 
nation  and  nation  the  proposition  is  right:  for,  trade  is  a  matter  of 
state,  and  of  a  public  nature,  and  consequently  a  proper  subject  for 
the  employment  of  an  ambassador.  In  treaties  of  commerce  those 
employed  are  as  much  public  ministers  as  any  others ;  and  the  reason 
for  their  protection  holds  as  strong:  and  it  is  of  no  weight  with  me 
that  the  defendant  was  not  to  concern  himself  about  other  matters  of 
state,  if  he  was  authorised  as  a  public  minister  to  transact  matters  of 
trade.  It  is  not  necessary  that  a  minister's  commission  should  be  gen- 
eral to  entitle  him  to  protection ;  but  it  is  enough  that  he  is  to  transact 
any  one  particular  thing  in  that  capacity,  as  every  ambassador  extraor- 
dinary is  ;  or  to  remove  some  particular  difficulties,  which  might  other- 
wise occasion  war.  But  what  creates  my  difficulty  is,  that  I  do  not 
think  he  is  intrusted  to  transact  affairs  between  the  two  crowns :  the 
commission  is,  to  assist  his  Prussian  Majesty's  subjects  here  in  their 
commerce ;  and  so  is  the  allowance.  Now  fhis  gives  him  no  authority 
to  intermeddle  with  the  affairs  of  the  King;  which  makes  his  em- 
ployment to  be  in  the  nature  of  a  consul.  And  although  he  is  called 
only  an  agent  of  commerce,  I  do  not  think  the  name  alters  the  case. 
Indeed  there  are  some  circumstances  that  put  him  below  a  consul; 
for,  he  wants  the  power  of  judicature,  which  is  commonly  given  to  con- 
suls. Also  their  commission  is  usually  directed  to  the  prince  of  the 
country ;  which  is  not  the  present  case :  but  at  most  he  is  only  a 
consul. 

It  is  the  opinion  of  Barbeyrac,  Wincquefort  and  others,  that  a  consul 
is  not  entitled  to  the  jus  gentium  belonging  to  ambassadors. 

And  as  there  is  no  authority  to  consider  the  defendant  in  any  other 


Ch.  4)  JURISDICTION   OP   STATES  313 

view  than  as  a  consul,  unless  I  can  be  satisfied  that  those  acting  in  that 
capacity  are  entitled  to  the  jus  gentium,  I  cannot  discharge  him.-^ 

Note — The  person  was  after  discharged  by  the  secretary's  office, 
satisfying  the  creditors. 


UNITED  STATES  v.  RAVARA. 

(Circuit  Court  of  the  United  States,  Pennsylvania  District,  1794.    2  Dall.  299, 

1  L.  Ed.  388.  note.) 

The  defendant,  a  consul  from  Genoa,  was  indicted  for  a  misde- 
meanor, in  sending  anonymous  and  threatening  letters  to  Mr.  Ham- 
mond, the  British  minister,  Mr.  Holland,  a  citizen  of  Philadelphia,  and 
several  other  persons,  with  a  view  to  extort  money.     *     *     * 

The  defendant  was  tried  in  April  session,  1794,  before  Jay,  Chief 
Justice,  and  Peters,  Justice;  and  was  defended  by  the  same  advocates, 
on  the  following  points :  1st.  That  the  matter  charged  in  the  indict- 
ment was  not  a  crime  by  the  common  law,  nor  is  it  made  such  by  any 
positive  law  of  the  United  States.  *  *  *  2d.  That  considering 
the  official  character  of  the  defendant,  such  a  proceeding  ought  not  to 
be  sustained,  nor  such  a  punishment  inflicted.  The  law  of  nations  is 
a  part  of  the  law  of  the  United  States ;  and  the  law  of  nations  seems 
to  require,  that  a  consul  should  be  independent  of  the  ordinary  crim- 
inal justice  of  the  place  where  he  resides.  Vatt.  lib.  2,  c.  2,  §  34. 
3d.  But  that,  exclusive  of  the  legal  exceptions,  the  prosecution  had  not 
been  rnaintained  in  point  of  evidence ;  for  it  was  all  circumstantial 
and  presumptive,  and  that  too,  in  so  slight  a  degree,  as  ought  not  to 
^yeigh  with  a  jury  on  so  important  an  issue.     *     *     * 

Rawle,  in  reply,  insisted,  that  the  offence  was  indictable  at  common 
law ;  that  the  consular  character  of  the  defendant  gave  jurisdiction 
to  the  circuit  court,  and  did  not  entitle  him  to  an  exemption  from 
prosecution,  agreeable  to  the  law  of  nations ;  and  that  the  proof  was 
as  strong  as  the  nature  of  the  case  allowed,  or  the  rules  of  evidence 
required.     *     *     * 

2  3  In  the  discussion  of  this  case  the  court  seems  to  have  determined  that  a 
person  residing  in  this  country  in  the  capacity  of  foreign  minister  cannot,  by 
any  act  or  acts  of  his  own,  waive  that  privilege  or  protection  which  the  law 
of  nations  has  annexed  to  a  situation  so  important ;  that  a  foreign  minister, 
being  or  becoming  a  trader,  does  not  thereby  lose  or  forfeit  the  privilege  per- 
sonally annexed  to  him,  and  therefore  the  only  reason  why  the  court  in  the 
present  instance  did  not  think  the  defendant  entitled  to  the  protection  which 
he  claimed  was  that  the  employment  which  he  was  invested  with  could  at 
most  be  considered  only  as  the  same  with  or  equal  to  that  of  consul,  which 
according  to  the  best  writers  upon  the  subject  was  not  entitled  to  the  jus  gen- 
tium, or  privilege  belonging  to  ambassadors  or  ministers,  who  are  intrusted  to 
transact  matters  of  state  or  other  affairs  between  two  nations ;  that  the  law 
of  nations  (which  in  its  fullest  extent  was  and  formed  part  of  the  law  of 
England)  was  the  rule  of  decision  in  cases  of  this  kind;  and  that  the  act  of 
Parliament  waa  declaratory  of  it,  and  occasioned  by  a  particular  incident. 


314  RIGHTS   AND   DUTIES   OP   NATIONS   IN   TIME   OF  'PEACE       (Part  1 

The  Court  were  of  opinion,  in  the  charge,  that  the  offence  was  in- 
dictable, and  that  the  defendant  was  not  privileged  from  prosecution, 
in  virtue  of  his  consular  appointment. 

The  jury,  after  a  short  consultation,  pronounced  the  defendant 
guilty;  but  he  was  afterwards  pardoned,  on  condition  (as  I  have 
heard)  that  he  surrendered  his  commission  and  exequatur.     *     *     *  ^* 


In  re  BAIZ. 

(Supreme  Court  of  the  United  States,  1890.    135  U.  S.  403,  10  Sup.  Ct.  854,  34 

L.  Ed.  222.) 

The  case,  as  stated  by  the  court,  was  as  follows : 

On  the  29th  day  of  June,  1889,  an  action  was  commenced  by  one 
John  Henry  Hollander  in  the  District  Court  of  the  United  States 
for  the  Southern  District  of  New  York  against  Jacob  Baiz,  to  recover 
damages  for  the  publication  of  an  alleged  libel  upon  the  .plaintiff, 
and  a  summons  was  served  upon  him  on  the  2d  day  of  July  of  that 
year. 

The  defendant  pleaded  to  the  jurisdiction  of  the  court,  stating  that 
since  July  1887  he  had  been  consul  general  of  Guatemala  at  the  city 
of  New  York ;  that  from  January  16,  1889,  until  July  10,  1889,  he  was 
acting  minister  and  sole  representative  of  Guatemala  in  the  United 
States,  in  the  absence  of  its  duly  accredited  envoy  extraordinary  and 
minister  plenipotentiary  to  this  country ;  that  on  June  9,  1889,  during 
the  period  in  which  he  acted  as  minister,  he  communicated  to  the  As- 
sociated Press  a  decree  of  Guatemala  of  May  14,  1889,  under  in- 
structions from  Guatemala  so  to  do,  which  communication  constituted 
the  libel  in  question,  and  that  because  of  the  defendant's  position,  as 
acting  minister  at  the  time  of  such  communication,  he  was  exempt  from 
the  jurisdiction  of  the  court. 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court.-^  *  *  * 

Diplomatic  duties  are  sometimes  imposed  upon  consuls,  but  only  in 
virtue  of  the  right  of  a  government  to  designate  those  who  shall 
represent  it  in  the  conduct  of  international  affairs  (1  Calvo,  Droit 
Int.  586,  2d  Ed.,  Paris,  1870),  and  among  the  numerous  authorities  on 
international  laws,  cited  and  quoted  from  by  petitioner's  counsel,  the 
attitude  of  consuls,  on  whom  this  function  is  occasionally  conferred, 
is  perhaps  as  well  put  by  De  Clercq  and  De  Vallat  as  by  any,  as  fol- 
lows : 

"There  remains  a  last  consideration  to  notice,  that  of  a  consul  who 
is  charged  for  the  time  being  with  the  management  of  the  affairs  of 

24  Part  of  the  report  is  omitted. 

25  A  short  statement  of  facts  has  been  substituted  for  that  of  the  report 
and  only  so  much  of  the  opinion  is  given  as  relates  to  the  claim  of  diplomatic 
immunity. 


Ch.  4)  JURISDICTION   OF   STATES  315 

the  diplomatic  post;  he  is  accredited  in  this  case  in  his  diplomatic 
capacity,  either  by  a  letter  of  the  minister  of  foreign  affairs  of  France 
to  the  minister  of  foreign  affairs  of  the  country  where  he  is  about  to 
reside,  or  by  a  letter  of  the  diplomatic  agent  whose  place  he  is  about 
to  fill,  or  finally  by  a  personal  presentation  of  this  agent  to  the  min- 
ister of  foreign  affairs  of  the  country."  Guide  Pratique  cjes  Consulats, 
vol.  I.,  p.  93. 

That  it  may  sometimes  happen  that  consuls  are  so  charged  is  rec- 
ognized by  section  1738  of  the  Revised  Statutes  (Comp.  St.  §  3196), 
which  provides : 

"No  consular  officer  shall  exercise  diplomatic  functions,  or  hold  any 
diplomatic  correspondence  or  relation  on  the  part  of  the  United  States, 
in,  with,  or  to  the  government,  or  country  to  which  he  is  appointed, 
or  any  other  country  or  government  when  there  is  in  such  country  any 
officer  of  the  United  States  authorized  to  perform  diplomatic  functions 
therein ;  nor  in  any  case,  unless  expressly  authorized  by  the  President 
so  to  do." 

But  in  such  case  their  consular  character  is  necessarily  subordinated 
to  their  superior  diplomatic  character.  "A  consul,"  observed  Mr. 
Justice  Story,  in  The  Anne,  3  Wheat.  435,  445,  4  L.  Ed.  428,  "though 
a  public  agent,  is  supposed  to  be  clothed  with  authority  only  for 
commercial  purposes.  He  has  an  undoubted  right  to  interpose  claims 
for  the  restitution  of  property  belonging  to  the  subjects  of  his  own 
country ;  but  he  is  not  considered  as  a  minister,  or  diplomatic  agent 
of  his  sovereign,  intrusted  by  virtue  of  his  office,  with  authority  to 
represent  him  in  his  negotiations  with  foreign  states,  or  to  vindicate 
his  prerogatives.  There  is  no  doubt  that  his  sovereign  may  specially 
intrust  him  with  such  authority ;  but  in  such  case  his  diplomatic  char- 
acter is  superadded  to  his  ordinary  powers,  and  ought  to  be  recognized 
by  the  government  within  whose  dominions  he  assumes  to  exercise  it." 

When  a  consul  is  appointed  charge  d'affaires,  he  has  a  double 
political  capacity;  but  though  invested  with  full  diplomatic  privileges, 
he  becomes  so  invested  as  charge  d'affaires  and  not  as  consul,  and 
though  authorized  as  consul  to  communicate  directly  with  the  govern- 
ment in  which  he  resides,  he  does  not  thereby  obtain  the  diplomatic 
privileges  of  a  minister.  Atty.  Gen.  Gushing,  7  Op.  Attys.  Gen.  342, 
345. 

This  is  illustrated  by  the  ruling  of  Mr.  Secretary  Blaine,  April  12, 
1881,  that  the  Consul  General  of  a  foreign  government  was  not  to  be 
regarded  as  entitled  to  the  immunities  accompanying  the  possession  of 
diplomatic  character,  because  he  was  also  accredited  as  the  "political 
agent"  so-called  of  that  government,  since  he  was  not  recognized  as 
performing  any  acts  as  such,  which  he  was  not  equally  competent  to 
perform  as  Consul  General.  1  Whart.  Dig.  Int.  Law,  2d  Ed.,  ch.  4,  § 
88,  p.  624. 


316  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   PEACE       (Part  1 

We  are  of  opinion  that  Mr.  Baiz  was  not,  at  the  time  of  the  com- 
mencement of  the  suit  in  question,  charge  d'affaires  ad  interim  of 
Guatemala,  or  invested  with  and  exercising  the  principal  diplomatic 
functions,  or  in  any  view  a  "diplomatic  officer."  He  was  notNa  pub- 
lic minister  within  the  intent  and  meaning  of  §  687;  and  the  District 
Court  had  jurisdiction.     *     *     * 

Mr.  Baiz  was  a  citizen  of  the  United  States  and  a  resident  of  the 
city  of  New  York.  In  many  countries  it  is  a  state  maxim  that  one  of 
its  own  subjects  or  citizens  is  not  to  be  received  as  a  foreign  diplo- 
matic agent,  and  a  refusal  to  receive,  based  on  that  objection,  is  always 
regarded  as  reasonable.  The  expediency  of  avoiding  a  possible  con- 
flict between  his  privileges  as  such  and  his  obligations  as  a  subject  or 
citizen,  is  considered  reason  enough  in  itself.  Wheaton  (8th  Ed.)  § 
210;  2  Twiss,  Law  of  Nations,  276,  §  186;  2  Phill.  Int.  Law,  17L 
Even  an  appointment  as  consul  of  a  native  of  the  place  where  consular 
service  is  required,  is,  according  to  Phillimore,  "perhaps,  rightfully  pro- 
nounced, by  a  considerable  authority,  to  be  objectionable  in  principle." 
Volume  II,  p.  291,  citing  De  Martens  &  De  Cussey,  Recueil  des  Traites 
Index  Explicatif,  p.  xxx,  Tit.  "Consuls." 

"Other  powers"  says  Calvo,  vol.  I.,  p.  559  (2d  Ed.)  "admit  without 
difficulty  their  own  citizens  as  representatives  of  foreign  states,  but 
imposing  on  them  the  obligation  of  amenability  to  the  local  laws  as  to 
their  persons  and  property.  These  conditions,  which,  nevertheless, 
ought  never  to  go  so  far  as  to  modify  or  alter  the  representative  char- 
acter, ought  always  to  be  denned  before  or  at  the  time  of  receiving  the 
agent ;  for  otherwise,  the  latter  might  find  it  impossible  to  claim  the 
honors,  rights  and  prerogatives  attached  to  his  employment."  See 
also  Heffter,  3d.  Fr.  Ed.,  387. 

In  the  United  States,  the  rule  is  expressed  by  Mr.  Secretary  Evarts, 
under  date  of  Sept.  19,  1879,  thus:  "This  government  objects  to 
receiving  a  citizen  of  the  United  States  as  a  diplomatic  representative 
of  a  foreign  power.  Such  citizens,  however,  are  frequently  recognized 
as  consular  officers  of  other  nations,  and  this  policy  is  not  known 
to  have  hitherto  occasioned  any  inconvenience."  And  again,  April 
20,  1880,  while  waiving  the  obstacle  in  the  particular  instance,  he 
says :  "The  usage  of  diplomatic  intercourse  between  nations  is 
averse  to  the  acceptance,  in  the  representative  capacity,  of  a  person 
who,  while  native  born  in  the  country  which  sends  him,  has  yet  ac- 
quired lawful  status  as  a  citizen  by  naturalization  of  the  country  to 
which  he  is  sent."     1  Wharton  Dig.  Int.  Law  (2d  Ed.)  §  88a,  p.  628. 

Of  course  the  objection  would  not  exist  to  the  same  extent  in  the 
case  of  designation  for  special  purposes  or  temporarily,  but  it  is  one 
purely  for  the  receiving  government  to  insist  upon  or  waive  at  its  pleas- 
ure. The  presumption,  therefore,  would  ordinarily  be  against  Mr. 
Baiz's  contention,  and,  as  matter  of  fact,  we  find  that  when,  in  1886,  he 
was  appointed  charge  d'affaires  of  the  Republic  of  Honduras  to  the 


Ch   4)  JURISDICTION   OF   STATES  317 

government  of  the  United  States,  Mr.  Secretary  Bayard  declined  re- 
ceiving him  as  the  diplomatic  representative  of  the  government  of  that 
country,  because  of  his  being  a  citizen  of  the  United  States,  and  advised 
him  that:  "It  has  long  been  the  almost  uniform  practice  of  this  Gov- 
ernment to  decline  to  recognize  American  citizens  as  the  accredited 
diplomatic  representatives  of  foreign  powers.  The  statutory  and  juris- 
dictional immunities  and  the  customary  privileges  of  right  attaching 
to  the  office  of  a  foreign  minister  make  it  not  only  inconsistent,  but 
at  times  even  inconvenient,  that  a  citizen  of  this  country  should  enjoy 
so  anomalous  a  position."  And  in  a  subsequent  communication  ren- 
dered necessary  by  a  direct  question  of  Mr.  Baiz,  the  Secretary  informs 
him  "that  it  is  not  the  purpose  of  the  department  to  regard  the  sub- 
stitutionary agency,  which  it  cheerfully  admits  in  your  case,  as  con- 
ferring upon  you  personally  any  diplomatic  status  whatever."  This 
correspondence  disposes  of  the  question  before  us.  The  objection 
which  existed  in  1886  to  the  reception  of  Mr.  Baiz  as  charge  d'affaires 
ad  hoc  or  ad  interim,  or  according  to  him  any  diplomatic  status  what- 
ever, whether  temporary  or  otherwise,  existed  in  1889;  and  it  is  out 
of  the  question  to  assume  that  the  State  Department  intended  to  con- 
cede the  diplomatic  status  between  January  16  and  July  10,  1889, 
upon  the  request  of  Sehor  Lainfiesta  that  Consul  General  Baiz  might 
be  allowed  to  be  a  medium  of  communication  during  his  absence,  which 
it  had  refused  to  accord  to  the  Republic  of  Honduras  itself.  It  is 
evident  that  the  statement  of  the  Assistant  Secretary,  October  4,  1889, 
was  quite  correct,  that  "the  business  of  the  legation  [of  Guatemala] 
was  conducted  by  Consul  General  Baiz,  but  without  diplomatic  char- 
acter."    *     *     * 

Regarding  the  matter  in  hand  as,  in  its  general  nature,  one  of  delicacy 
and  importance,  we  have  not  thought  it  desirable  to  discuss  the  sug- 
gestions of  counsel  in  relation  to  the  remedy,  but  have  preferred  to 
examine  into  and  pass  upon  the  merits. 

We  ought  to  add  that  while  we  have  not  cared  to  dispose  of  this 
case  upon  the  mere  absence  of  technical  evidence,  we  do  not  assume 
to  sit  in  judgment  upon  the  decision  of  the  executive  in  reference  to 
the  public  character  of  a  person  claiming  to  be  a  foreign  minister,  and 
therefore  have,  the  right  to  accept  the  certificate  of  the  State  Depart- 
ment that  a  party  is  or  is  not  a  privileged  person,  and  cannot  prop- 
erly be  asked  to  proceed  upon  argumentative  or  collateral  proof. 

Our  conclusion  is,  as  already  stated,  that  the  District  Court  had 
jurisdiction,  and  we  accordingly  discharge  the  rule  and 

Deny  the  writs. 


318  RIGHTS  AND   DUTIES  OP  NATIONS   IN  TIME  OF   PEACE       (Part  1 


UNITED  STATES  v.  TRUMBULL  et  al.  . 

(District  Court  of  the  United  States,  Southern  District  of  California,  1891. 

48  Fed.  94.) 

At  Law.  Indictment  of  Ricardo  Trumbull  and  G.  A.  Burt  for  vio- 
lation of  neutrality  laws.  On  motion  of  Walter  D.  Catton  to  be  dis- 
charged from  process  of  subpoena.     *     *     * 

Ross,  J.  It  is  greatly  to  be  regretted  that  the  important  question 
now  presented  to  the  court  niust  be  disposed  of  in  the  haste  of  a  nisi 
prius  trial.  The  question  arises  in  a  case  in  which  the  government  of 
the  United  States,  by  various  counts  in  the  indictment,  charges,  in  ef- 
fect, that  on  the  9th  day  of  May,  1891,  at  a  certain  designated  place 
within  this  judicial  district,  Ricardo  Trumbull  and  G.  A.  Burt  at- 
tempted to  fit  out  and  arm,  fitted  out  and  armed,  caused  to  be  fitted 
out  and  armed,  and  were  knowingly  concerned  in  fitting  out  and  arm- 
ing, a  certain  steamship  called  the  "Itata,"  which  was  then  and  there 
in  the  possession  and  under  the  control  of  certain  citizens  of  the  re- 
public of  Chili,  known  as  the  ''Congressional  Party,"  and  who  were 
then  and  there,  in  said  republic,  organized  and  banded  together  in  great 
numbers  in  armed  rebellion  and  attempted  revolution,  and  carrying  on 
war  against  the  republic  of  Chili  and  the  government  thereof,  with 
which  the  United  States  then,  and  at  the  time  of  the  finding  of  the 
indictment,  were  at  peace,  with  intent  that  said  ship  should  be  employed 
in  the  service  of  the  aforesaid  Congressional  party,  to  cruise  or  com- 
mit hostilities  against  the  then  established  and  recognized  government 
of  Chili,  with  which  this  government  then  was  at  peace;  contrary  to 
the  provisions  of  section  5283  of  the  Revised  Statutes  of  the  United 
States  (Comp.  St.  §  10175).  A  similar  violation  of  sections  5285  and 
5286  of  the  Revised  Statutes  (Comp.  St.  §§  10176,  10177)  is  also  al- 
leged. Counsel  for  the  United  States  having  caused  a  subpoena  to  be 
served  upon  Mr.  Walter  D.  Catton  to  appear  as  a  witness  in  the  case 
on  the  part  of  the  prosecution,  he  has  appeared  in  obedience  to  the 
subpoena,  and  presented  to  the  court  his  exequatur,  issued  by  Presi- 
dent Cleveland  on  the  26th  of  January,  1888,  by  which  he  was  recog- 
nized by  the  executive  as  the  duly-appointed  vice-consul  of  Chili  at 
San  Francisco,  Cal.,  and  declared  "free  to  exercise  and  enjoy  such 
functions,  powers,  and  privileges  as  are  allowed  to  the  vice-consuls 
of  the  most  favored  nations  in  the  United  States."  He  also  presents 
the  consular  instructions  received  from  his  own  government,  which, 
among  other  things,  prohibit  consuls,  without  authorization  from  the 
minister  of  foreign  affairs  or  the  respective  legations,  if  there  be  such, 
from  making  public  the  correspondence  which  they  may  hold  with 
the  government,  or  from  giving  publicity  to  information  or  data  which 
they  may  receive  while  exercising  their  charge;  and  by  which  they 
are  required  to  demand  the  privileges  and  exemptions  which  may  ap- 


Ch.  4)  JURISDICTION    OF    STATES  319 

pertain  to  them  by  virtue  of  treaties  or  conventions  entered  into  be- 
tween Chili  and  the  nations  where  they  may  be  stationed,  and,  in 
case  there  be  no  treaty,  to  demand  the  privileges  and  exemptions  which 
ar-e  generally  conceded  in  the  country  of  their  residence  to  consuls 
of  other  nations ;  and,  as  essential  to  the  exercise  of  their  office,  they 
are  required  to  demand  inviolability  of  their  archives  and  documents, 
and  freedom  in  their  acts  performed  in  their  capacity  of  consuls.  For 
a  violation  of  their  instructions  certain  punishments  are  prescribed. 
Presenting  the  credentials  and  instructions  mentioned,  Mr.  Catton  asks 
to  be  relieved  from  further  attendance  upon  the  court  as  a  witness. 
He  bases  the  demand — First,  upon  the  broad  ground  that  his  privi- 
leges as  vice-consul  exempt  him  from  compulsory  process  to  attend 
as  a  witness  in  any  court  of  the  United  States;  and,  secondly,  upon 
the  ground  that  the  circumstances  of  the  present  case  are  such  as 
render  it  improper  to  require  him  to  attend  as  a  witness  on  the  part  of 
the  prosecution. 

The  counsel  for  the  United  States  deny  that  the  privileges  thus  as- 
serted by  Mr.  Catton  exist;  contending,  in  the  first  place,  that  he 
ceased  to  be  vice-consul  of  Chili  upon  the  overthrow  of  the  government 
by  which  he  was  accredited.  If  the  position  of  the  counsel  for  the 
United  States  in  this  respect  is  correct,  the  question  is  of  course  end- 
ed, and  Mr.  Catton  occupies  the  position  of  an  ordinary  witness  sub- 
poenaed in  the  cause.  But,  I  am  unable  to  take  that  view  of  the  matter. 
The  court  cannot  say  that  the  person  who  holds  the  unrevoked  exe- 
quatur issued  by  the  president,  by  virtue  of  which  he  is  in  discharge  of 
the  duties  of  vice-consul  of  his  country,  is  in  fact  not  such  officer.  The 
recognition  of  representatives  of  foreign  countries  is  a  matter  for 
the  executive  department  of  the  government,  whose  action  in  the  prem- 
ises is  accepted  and  followed  by  the  judicial  department.  Whart.  Int. 
Law  Dig.  p.  552. 

But,  accepting  Mr.  Catton  as  the  duly  authorized  and  acting  vice- 
consul  of  the  Chilian  government,  does  his  position  as  such,  of  itself, 
entitle  him  to  exemption  from  compulsory  process  to  attend  as  a  wit- 
ness in  the  courts  of  the  United  States?  It  is  very  clear  that  by  the 
law  of  nations  consuls  and  vice-consuls  stand  upon  a  very  different 
footing  from  ambassadors  and  ministers.  The  latter  are  not  amenable 
to  either  the  civil  or  criminal  jurisdiction  of  the  country  to  which  they 
are  deputed ;  not  so,  however,  the  former.  1  Whart.  Int.  Law  Dig.  pp. 
767,  775,  776;  Wools.  Int.  Law,  p.  162;  1  Kent,  Comm.  45,  46.  But 
it  is  contended  that  such  immunity  attached  to  the  vice-consul  of 
Chili  by  reason  of  the  treaty  concluded  between  the  United  States 
and  that  country  on  the  29th  of  April,  1832.  The  first  subdivision  of 
article  31  of  that  treaty  provided  that  it  should  "remain  in  full  force  and 
virtue  for  the  term  of  twelve  years,  to  be  reckoned  from  the  day  of 
exchange  of  the  ratification;  and,  further,  until  the  end  of  one  year 
after  either  of  the  contracting  parties  shall  have  given  notice  to  the 


320  RIGHTS  AND   DUTIES  OF  NATIONS   IN  TIME   OF   PEACE       (Part  I 

Other  of  its  intentions  to  terminate  the  same,  each  of  contracting  par- 
ties reserving  to  itself  the  right  of  giving  such  notice  to  the  other  at  the 
end  of  said  term  of  twelve  years.  And  it  is  hereby  agreed  between 
them  that,  on  the  expiration  of  one  year  after  such  notice  shall  have 
been  received  by  either  from  the  other  party,  this  treaty  in  all  the 
parts  relating  to  commerce  and  navigation  shall  altogether  cease  and 
determine,  and  in  all  those  parts  which  relate  to  peace  and  friendship 
it  shall  be  permanently  and  perpetually  binding  on  both  parties." 

Pursuant  to  notice  by  the  Chilian  government  under  the  foregoing 
article,  the  treaty,  together  with  the  explanatory  convention  which  fol- 
lowed it  in  1833,  were  terminated  January  20,  1850.  Treat.  &  Conven. 
p.  118.  As  will  be  observed,  the  portions  of  the  treaty  so  terminated 
were  those  relating  to  commerce  and  navigation,  leaving  permanently 
and  perpetually  binding  on  both  powers  those  parts  relating  to  peace 
and  friendship,  embracing,  as  is  contended,  article  25  of  the  treaty, 
which  is  as  follows : 

"Both  the  contracting  parties,  being  desirous  of  avoiding  all  ine- 
quality in  relation  to  their  public  communications  and  official  inter- 
course, have  agreed,  and  do  agree,  to  grant  to  their  envoys,  ministers, 
and  other  public  agents  the  same  favors,  immunities,  and  exemptions 
which  those  of  the  most  favored  nations  do  or  shall  enjoy ;  it  being 
understood  that  whatever  favors,  immunities,  or  privileges  the  United 
States  of  America  or  the  republic  of  Chili  may  find  it  proper  to  give 
to  the  ministers  and  public  agents  of  any  other  power  shall,  by  the 
same  act,  be  extended  to  those  of  each  of  the  contracting  parties." 

It  being  stipulated  by  the  convention  between  the  United  States  and 
France,  ratified  April  1,  1853,  that  their  consuls  shall  never  be  com- 
pelled to  appear  in  court  as  witnesses,  it  is  urged  that  the  same  priv- 
ilege attaches  to  the  consuls  of  Chili  by  virtue  of  article  25  of  the  treaty 
of  1832  above  cited.  In  the  case  of  In  re  Dillon,  7  Sawy.  561,  Fed. 
Cas.  No.  3,914,  which  arose  in  1854,  it  was  held  by  the  court  that, 
because  of  the  stipulation  in  the  treaty  between  the  United  States  and 
France  to  the  effect  that  their  consuls  shall  never  be  compelled  to  appear 
in  court  as  witnesses  such  consuls  are  not  amenable  to  the  compulsory 
process  of  the  courts  requiring  their  attendance,  notwithstanding  the 
provision  of  the  constitution  of  the  United  States  securing  to  the  ac- 
cused in  criminal  prosecutions  the  right  to  have  compulsory  process 
for  obtaining  witnesses  in  his  favor.  The  subpoena  served  upon  Mr. 
Dillon  also  required  him  to  produce  a  certain  document,  said  to  be  in 
his  possession!  Having  failed  to  appear,  an  attachment  was  issued, 
and  he  was  brought  into  court,  from  which,  after  a  hearing  of  the  mat- 
ter, he  was  discharged.  When  the  attachment  was  served,  he  hauled 
down  his  consular  flag  and  the  case  was  taken  up  by  the  French  minister 
at  Washington  as  involving  a  gross  disrespect  to  France.  A  long 
and  animated  controversy  between  Mr.  Marcy,  then  secretary  of  state, 
and  the  French  government  ensued.    The  fact  that  an  attachment  had 


Ch.  4)  JURISDICTION   OF   STATES  321 

issued,  under  which  Mr.  Dillon  was  brought  into  court,  was  regarded 
by  the  French  government  as  not  merely  a  contravention  of  the  treaty, 
but  an  offense  by  international  law;  and  it  was  argued  that  the  dis- 
respect was  not  purged  by  the  subsequent  discharge  of  Air.  Dillon  from 
arrest.  It  was  urged,  also,  that  the  fact  that  the  subpoena  contained  the 
clause  duces  tecum  involved  a  violation  of  the  consular  archives. 
Mr.  Marcy,  in  a  letter  of  September  11,  1854,  to  Mr.  Mason,  then 
minister  at  Paris,  discusses  these  questions  at  great  length.  He  main- 
tains that  the  provision  in  the  federal  constitution  giving  defendants 
opportunity  to  meet  witnesses  produced  against  them  face  to  face 
overrides  conflicting  treaties,  unless  in  cases  where  such  treaties  em- 
body exceptions  to  this  right  recognized  as  such  when  the  constitution 
was  framed.  One  of  these  exceptions  relates  to  the  case  of  diplo- 
matic representatives.  "As  the  law  of  evidence  stood  when  the  consti- 
tution went  into  effect,"  says  Mr.  Marcy,  "ambassadors  and  ministers 
could  not  be  served  with  compulsory  process  to  appear  as  witnesses, 
and  the  clause  in  the  constitution  referred  to  did  not  give  the  defendant 
the  right  in  criminal  prosecutions  to  compel  their  attendance  in  court." 
This  privilege,  however,  Mr.  Marcy  maintained,  did  not  extend  to 
consuls ;  and  consuls,  therefore,  could  only  procure  the  privilege  when 
given  to  them  by  treaty,  which,  in  criminal  cases,  was  subject  to  the 
limitations  of  the  constitution  of  the  United  States.  Mr.  Marcy,  how- 
ever, finding  that  the  French  government  continued  to  regard  the  at- 
tachment with  the  subpoena  duces  tecum  as  an  attack  on  its  honor, 
offered,  in  a  letter  to  Mr.  Mason,  dated  January  18,  1855,  to  compro- 
mise the  matter  by  a  salute  to  the  French  flag  upon  a  French  man-of- 
war,  stopping  at  San  Francisco.  Count  de  Santiges,  the  French  minis- 
ter at  Washingt9n,  asked  in  addition,  that  when  the  consular  flag  at  San 
Francisco  was  rehoisted  it  should  receive  a  salute.  This  was  declined 
by  Air.  Marcy.  In  August,  1855,  after  a  long  and  protracted  contro- 
versy, the  French  government  agreed  to  accept  as  a  sufficient  satisfac- 
tion an  expression  of  regret  by  the  government  of  the  United  States, 
coupled  with  the  provision  that  "when  a  French  national  ship  or 
squadron  shall  appear  in  the  harbor  of  San  Francisco  the  United 
States  authorities  there,  military  or  naval,  will  salute  the  national 
flag  borne  by  such  ship  or  squadron  with  a  national  salute,  at  an 
hour  to  be  specified  and  agreed  on  with  the  French  naval  command- 
ing officer  present,  and  the  French  ship  or  squadron  whose  flag  is 
thus  saluted  will  return  the  salute,  gun  for  gun."  W'hart.  Int.  Dig. 
p.  666. 

It  will  therefore  be  seen  that  while  the  court  held,  in  Dillon's  Case, 
that  the  provision  of  the  constitution  securing  to  the  accused  in  crim- 
inal prosecutions  the  right  to  have  compulsory  process  for  obtaining 
witnesses  in  their  favor  does  not  authorize  the  issuing  of  such  process 
to  such  consuls  who,  by  express  treaty,  are  not  amenable  to  the  pro- 
cess of  the  courts,  the  state  department  of  the  government  contended 
Scott  Int.Law — 21 


322  RIGHTS  AND   DUTIES  OF  NATIONS   IN  TIME  OP  PEACE       (Part  1 

that  that  provision  overrides  conflicting  treaties,  not  embodying  ex- 
ceptions to  the  right  guarantied,  recognized  as  such  when  the  consti- 
tution was  framed,  within  which  exceptions  consuls  did  not  come.  In 
the  present  case,  however,  the  provision  of  the  constitution  referred 
to  in  Dillon's  Case  is  not  involved;  for  Mr.  Catton  has  not  been  sub- 
poenaed as  a  witness  for  the  defendants,  but  on  behalf  of  the  prose- 
cution. And  if  he  is  entitled,  as  in  effect  it  is  declared  he  is,  by  ar- 
ticle 25  of  the  convention  of  1832,  and  by  the  exequatur  issued  to  him 
by  the  president,  to  the  same  privileges  and  immunities  as  are  granted 
to  the  consuls  of  France,  it  would  seem  to  follow  that  he  is  exempt 
from  compulsory  process  to  attend  the  court  as  a  witness. 

But  for  another  reason  I  do  not  think  he  should  be  compelled  to 
attend  as  a  witness  in  this  cause.  The  offenses  with  which  the  de- 
fendants standi  charged  are  violations  of  the  neutrality  laws  of  the 
United  States,  and  consist  in  the  giving  of  aid  to  those  who  now  con- 
stitute the  established  and  recognized  government  of  Chili.  Having 
succeeded  and  become  recognized,  the  acts  of  that  government  from 
the  commencement  of  its  existence  will  be  upheld  as  those  of  an  inde- 
pendent nation.  Williams  v.  Bruffy,  96  U.  S.  176,  24  L.  Ed.  716. 
To  require  the  representative  of  that  government  to  appear  and  give 
testimony  against  those  alleged  to  have  aided  its  establishment  would 
not  only  be  contrary  to  the  principle  upon  which  neutrality  laws  are 
based,  but  would  strongly  tend  to  give  grave  offense  to  the  govern- 
ment now  recognized  by  the  United  States,  and  with  which  this  govern- 
ment, happily,  is  at  peace. 

The  motion  on  behalf  of  the  vice-consul  is  allowed.^' 

28  A  consul  is  a  commercial,  not  a  diplomatic  agent,  and  has  no  claim  under 
international  law  to  immunity  from  the  civil  or  criminal  jurisdiction  of  the 
country  in  which  he  is  stationed.  Barbuit's  Case,  Cas.  t.  Talbot,  281  (1737)  ; 
Clarke  v.  Cretico,  1  Taunt.  106  (1808);  Viveash  v.  Becker,  3  M.  &  S.  284  (1814) ; 
Com.  V.  Kosloff,  5  Serg.  &  R.  (Pa.)  545  (1816).  "Consuls,"  said  Mr.  Justice 
Swayne,  in  Coppell  v.  Hall,  7  Wall.  542,  553,  19  L.  Ed.  244  (1868),  "are  approv- 
ed and  admitted  by  the  local  sovereign.  If  guilty  of  illegal  or  improper  con- 
duct, the  exequatur  which  has  been  given  may  be  revoked  and  they  may  be 
punished,  or  sent  out  of  the  country,  at  the  option  of  the  offended  government. 
In  civil  and  criminal  cases,  they  are  subject  to  the  local  law  in  the  same  man- 
ner with  other  foreign  residents  owing  a  temporary  allegiance  to  the  state. 
Dana's  Wheaton,  §  249 ;  1  Kent's  Commentaries,  53.  A  trading  consul,  in  all 
that  concerns  his  trade,  is  liable  in  the  same  way  as  a  native  merchant.  2 
Phillimore's  International  Law,  ccli.  The  character  of  consul  does  not  give 
any  protection  to  that  of  merchant  when  they  are  unitgd  in  the  same  person. 
The  Indian  Chief,  3  C.  Rob.  27  (1800);  Arnold  v.  U.  S.  Ins,  Co.,  1  Johns.  Cas. 
363  (1800)." 

See,  also,  opinion  of  C.  Gushing,  8  Op.  Attys.  Gen.  169  (1856). 

While  consuls  are  and  always  have  been  liable  to  suit  in  the  United  States, 
they  might  only  be  sued  in  the  federal  courts  (Act  of  1789,  Rev.  St.  §  711,  cl.  8 
[Comp.  St.  §  1233]) ;  but  this  clause  was  repealed  by  Act  Cong.  Feb.  18,  1875, 
18  St.  L.  p.  318,  with  the  result  that  state  and  federal  courts  now  exercise  con- 
current jurisdiction  in  suits  against  consuls  and  vice  consuls,  as  appears  from 
an  excellent  opinion  of  Mr.  Justice  Harrison  in  the  recent  case  of  Wilcox  v. 
Luco,  118  Gal.  639,  45  Pac.  676,  50  Pac.  758,  45  L.  R.  A.  579,  62  Am.  St.  Rep. 
305  (1897), 

Scott  Int,Law 


Ch.  4)  JURISDICTION   OF   STATES  823 

VI.  Right  op  Asylum 

(A)  In  Embassy  or  Legation 

UNITED  STATES  v.  JEFFERS. 

(United  States  Circuit  Court  for  District  of  Columbia,  1836.    4  Cranch,  C.  C, 
704,  Fed.  Cas.  No.  15,471.) 

Francis  S.  Key,  Esq.,^^  attorney  of  the  United  States,  for  the  District 
of  Columbia,  having-  laid  before  the  court  a  letter  to  him  from  the 
Secretary  of  State,  in  these  words :  "F.  S.  Key,  Esq.,  United  States 
Attorney  for  the  District  of  Columbia.  Department  of  State,  Wash- 
ington, May  27,  1836.  Sir:  I  transmit  a  copy  of  a  communication 
from  his  Britannic  Majesty's  envoy  extraordinary  and  minister  pleni- 
potentiary, Mr.  Fox,  dated  yesterday,  complaining  of  the  conduct  of  a 
constable  named  Jeffers,  at  the  house  of  one  of  the  members  of  his 
majesty's  mission.  You  are  requested  to  inquire  immediately  into  the 
case  and  to  ascertain  and  report  to  the  department,  under  what  author- 
ity the  constable  acted;  with  what  process  he  was  charged;  by  whom 
the  process  was  issued,  and  on  whose  application ;  and  generally  what 
proceedings  have  taken  place  in  the  matter.  You  will  also  be  pleased 
to  inform  me,  to  whom  the  constable  is  amenable,  and  in  what  manner 
he  is  removable  for  misconduct.  I  am,  sir,  your  ob't  servant,  John 
Forsyth."  And  a  copy  of  the  communication  from  his  Britannic  Majes- 
ty's envoy  extraordinary,  therein  referred  to,  in  these  words :  "The 
undersigned,  his  Britannic  Majesty's  envoy  extraordinary  and  minister 
plenipotentiary,  feels  it  his  duty  to  bring  the  following  case,  involv- 
ing a  breach  of  the  privilege  of  the  diplomatic  body,  under  the  imme- 
diate consideration  of  Mr.  Forsyth,  Secretary  of  State  of  the  United 
States.  A  colored  lad,  serving  for  hire  in  the  family  of  Mr.  Bank- 
head,  his  Britannic  Majesty's  secretary  of  legation,  was  this  morning 
taken  away  from  the  house  of  that  gentleman  by  a  constable  of  the 
name  of  [Madison]  Jeffers,  belonging  to  the  capitol  ward  of  this  city, 
upon  the  plea  of  conveying  him  to  his  master,  Mr,  King,  from  Ala- 
bama. No  previous  intimation  of  a  wish  to  remove  the  lad  from  Mr. 
Bankhead's  service  had  been  given  to  him  either  by  Mr.  King  or  by 
any  one  else.  Mr.  Bankhead,  in  order  to  avoid  any  disturbance,  al- 
lowed the  servant  to  be  removed,  but  formally  protested  against  the 
proc?eding ;  and  the  undersigned  now  submits  the  case  to  the  considera- 
tion of  Mr.  Forsyth,  in  the  confident  expectation  that  immediate  re- 
dress will  be  granted  by  the  government  of  the  United  States  for  this 
act  of  authority  exercised  by  a  constable  of  the  District,  in  the  house  of 

2^  Better  liuown  as  tlie  autlior  of  "The  Star-Spangled  Banner,"  1S14, 


324  RIGHTS   AND   DUTIES   OP   NATIONS   IN  TIME   OF   PEACE       (Part  1 

one  of  the  members  of  his  Britannic  Majesty's  mission,  in  violation  of 
the  privileges  of  the  diplomatic  body.  The  undersigned  has  the  honor  to 
renew  to  Mr.  Forsyth  the  assurances  of  his  distinguished  consideration. 
H.  S.  Fox.  Washington,  May  26th,  1836.  The  Honorable  John  For- 
syth, &c.,  &c.,  &c."  It  is,  on  the  motion  of  the  said  attorney  of  the 
United  States,  ordered,  that  the  said  Madison  Jefifers,  in  the  said  com- 
munication mentioned,  i)e  removed  from  the  office  of  constable  of 
the  county  of  Washington,  unless  he  show  cause  to  the  contrary  on  the 
thirty-first  day  of  May  instant,  provided  a  copy  of  this  order  shall 
have  been  served  upon  him  this  day.  By  order  of  the  court,  May 
30th,  1836.    Test :    William  Brent,  Clerk. 

The  rule  having  been  duly  served,  the  said  Madison  Jefifers  appeared 
on  the  31st  of  May  and,  by  way  of  showing  cause,  filed  his  affidavit 
admitting  the  facts,  but  alleging  his  ignorance  of  the  diplomatic  priv- 
ileges, and  his  belief  that  he  was  executing  his  duty  lawfully  in  arrest- 
ing a  fugitive  slave,  and  disclaiming  all  intentional  disrespect  to  Mr. 
Bankhead. 

His  counsel,  Mr.  W.  L.  Brent,  contended  that  Jefifers,  as  the  agent 
of  the  owner  of  the  slave,  had  a  right  to  take  him  anywhere ;  and  also 
that,  as  a  constable,  he  had  a  right  to  take  up  a  runaway.  That  the 
diplomatic  privilege  extends  only  to  foreign  ministers,  and  upon  cer- 
tain terms ;  and  not  to  servants  of  a  secretary  of  legation.  That  the 
servant  had  not  been  registered  according  to  the  Act  of  Congress  of 
30th  of  April,  .1790,  §  26  (1  Stat.  112  [Comp.  St.  §  7612]),  and  there- 
fore Jeffers  had  a  right  to  arrest  him ;  because  the  act  of  Congress 
for  punishing  the  violation  of  privilege  does  not  extend  to  those  who 
may  arrest  a  servant  not  registered.  By  not  registering  his  servant  the 
minister  has  waived  his  privilege.     Seacomb  v.  Bowlney,  1  Wils.  20. 

The  court  stopped  Mr.  Key  in  reply. 

Thurston,  Circuit  Judge,  said  he  wished  no  further  time  or  argu- 
ment.   He  was  of  opinion  that  Jeffers  should  be  dismissed  from  office. 

MoRSELL,  Circuit  Judge,  concurred. 

Cranch,  Chief  Judge,  would  have  taken  time  to  consider;  but  said 
that  his  present  opinion  coincided  with  that  of  the  court. 

Whereupon,  the  court  passed  the  following  order:  "Madison  Jef- 
fers, upon  whom  a  rule  was  laid  on  the  30th  of  May  last,  to  show 
cause  why  he  should  not  be  removed  from  the  office  of  constable  for 
the  county  of  Washington,  upon  the  grounds  therein  stated,  appeared 
and  filed  his  affidavit,  and  the  same  was  read  and  heard,  and  he  was 
further  heard  by  his  counsel.  Whereupon  it  is  considered  by  the 
court,  that  the  said  Madison  Jeffers  was  guilty  of  a  violation  of  the 
privileges  of  his  Britannic  Majesty's  envoy  extraordinary  and  minister 
plenipotentiary,  as  stated  in  his  letter  to  the  secretary  of  state,  referred 
to  in  the  said  rule ;  and  the  said  Madison  Jeffers,  having  shown  nq 
sufficient  cause  to  the  contrary,  it  is  thereupon  considered  by  the  court, 


Ch.  4)  JURISDICTION   OF    STATES  325 

this  7th  day  of  June,  1836,  that  the  said  Madison  Jeffers  be,  and  he  is 
hereby,  removed  from  his  said  office  of  constable  for  the  county  afore- 
said." 28 

28  Tjie  French  Court  of  Cassation  has  quashed  the  appeal  of  Nitchencoff, 
the  Russian  sentenced  to  imprisonment  for  life  for  a  murderous  attack  upon 
M.  de  Balsh,  in  the  house  of  the  Russian  Ambassador  in  Paris.  It  will  be 
remembered  that  this  case  gave  rise  to  a  diplomatic  correspondence,  the  Rus- 
sian government  having  disputed  the  right  of  the  French  courts  to  try  the 
murderer,  and  claimed  a  right  to  have  him  given  up  for  trial  in  Russia.  The 
court  laid  down  the  law  that  "the  fiction  of  the  law  of  nations,  according  to 
which  the  house  of  an  ambassador  is  reputed  to  be  a  continuation  of  the 
territory  of  his  sovereign,  only  protects  diplomatic  agents  and  their  servants, 
and  does  not  exclude  the  .iurisdiction  of  French  courts  in  case  of  a  crim<e  com- 
mitted in  such  a  locality  I\v  a  person  not  belonging  to  the  embassy,  even  al- 
though he  is  a  subject  of  the  nation  from  which  the  ambassador  is  accredit- 
ed."   10  The  Solicitors'  Journal  and  Reporter,  part  X,  P-  56. 

In  South  America  it  was,  if  it  is  not  still,  a  general  practice  to  claim  and 
exercise  the  right  and  privilege  as  stated  in  above  note,  but  the  practice  is 
bad,  unreasonable,  and  so  obviously  a  violation  of  local  sovereignty  that  it 
cannot  claim  recognition  as  a  principle  of  international  law.  It  is  tolerated, 
rather  than  justified,  by  the  exceptional  circumstances  in  Central  and  South 
American  republics. 

"In  the  United  States,"  Mr.  John  Bassett  Moore  says,  "where  the  supremacy 
of  the  local  law  is  rigorously  maintained,  diplomatic  asylum  has  never  existed. 
With  this  exception,  it  is  believed  that  examples  may  be  found  in  every  in- 
dependent American  state.  In  the  countries  that  were  formerly  Spanish 
colonies,  the  practice  may  be  said  to  have  been  inherited ;  and  in  some  of 
them  it  has  been  so  far  extended  as  to  include  persons  resting  under  civil  and 
commercial  responsibilities.  The  principal  excuse  for  its  continuance  has 
been  found  in  the  constantly  recurring  tumults  which  fill  so  many  pages  in 
the  history  of  American  republics,  and  which,  by  reason  of  their  partisan 
complexion,  Mr.  Seward  once  desci'ibed  as  representing  'a  chronic  revolution- 
ary condition.'  " 

The  vexed  question  of  asylums  in  legations  and  consulates  and  in  vessels 
has  been  treated  historically  and  logically  in  three  articles  by  Mr.  Moore, 
published  in  Political  Science  Quarterly  for  1892. 

See,  also,  the  more  recent  article  by  Mr.  Barry  Gilbert  on  The  Practice  of 
Asylum  in  Legations  and  Consulates  of  the  United  States,  3  American  Journal 
of  International  Law,  562-595  (1909). 


326  EIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

(B)  On  Public  Vessel 
FORBES  V.  COCHRANE  et  al. 

(Court  of  King's  Bench,  1824.    2  Barn.  &  Cr.  443.) 

The  declaration  stated  that  the  plaintiff  was  lawfully  possessed  of 
a  certain  cotton  plantation,  situate  in  parts  beyond  the  seas,  to  wit, 
in  East  Florida,  of  large  value,  and  on  which  plantation  he  employed 
divers  persons,  his  slaves  or  servants.  The  first  count  charged  the 
defendants  with  enticing  the  slaves  away.  The  second  count  stated 
that  the  slaves  or  servants  having  wrongfully  and  against  the  plain- 
tiff's will  quitted  and  left  the  plantation  and  the  plaintiff's  service, 
and  gone  into  the  power,  care,  and  keeping  of  the  defendants ;  they, 
knowing  them  to  be  the  slaves  or  servants  of  the  plaintiff,  wrongfully 
received  the  slaves  into  their  custody,  and  harbored,  detained,  and 
kept  them  from  the  plaintiff's  service.  The  last  count  was  for  wrong- 
fully harboring,  detaining,  and  keeping  the  slaves  or  servants  of  the 
plaintiff  after  notice  given  to  the  defendants  that  the  slaves  were  the 
plaintiff's  property,  and  request  made  to  the  defendants  by  the  plain- 
tiff to  deliver  them  up  to  him:  plea,  not  guilty.  At  the  trial  before 
Abbott,  C.  J.,  at  the  London  sittings  after  Trinity  term,  1822,  a 
verdict  was  found  for  the  plaintiff,  damages  £3,800,  subject  to  the 
opinion  of  the  court  on  the  following  case. 

The  plaintiff  was  a  British  merchant  in  the  Spanish  provinces  of 
East  and  West  Florida,  where  he  had  carried  on  trade  for  a  great 
many  years,  and  was  principally  resident  at  Pensacola  in  West  Flori- 
da. East  and  West  Florida  were  part  of  the  dominions  of  the  king 
of  Spain,  and  Spain  was  in  amity  with  Great  Britain.  The  plain- 
tiff, before  and  at  the  time  of  the  alleged  grievances,  was  the  proprietor 
and  in  the  possession  of  a  cotton  plantation,  called  San  Pablo,  lying 
contiguous  to  the  river  St.  John's,  in  the  province  of  East  Florida, 
and  of  about  one  hundred  negro  slaves  whom  he  had  purchased,  and 
who  were  employed  by  him  upon  his  plantation.  The  river  St.  John's 
is  about  thirty  or  forty  miles  from  the  confines  of  Georgia,  one  of 
the  United  States  of  America,  which  is  separated  from  East  Florida 
by  the  river  St.  Mary,  and  Cumberland  Island  is  at  the  mouth  of 
the  river  St.  Mary  on  the  side  next  Georgia,  and  forms  part  of  that 
State.  During  the  late  war  between  Great  Britain  and  America,  in  the 
month  of  February,  1815,  the  defendant,  Vice-Admiral  Sir  Alexander 
Inglis  Cochrane,  was  commander-in-chief  of  His  Majesty's  ships  and 
vessels  on  the  North  American  station.  The  other  defendant,  Rear- 
Admiral  Sir  George  Cockburn,  was  the  second  in  command  upon  the 
said  station,  and  his  flag-ship  was  the  Albion.  The  British  forces 
had  taken  possession  of  Cumberland  Island,  and  at  that  time  occupied 
and  garrisoned  the  same.     The  Albion,  Terror  Bomb,  and  others  of 


Ch.  4)  JURISDICTION   OF   STATES  327 

His  Majesty's  ships  of  war,  formed  a  squadron  under  Sir  George 
Cockburn's  immediate  command  off  that  island,  where  the  headquar- 
ters of  the  expedition  were.     *     *     * 

In  the  night  of  the  23d  February,  1815,  a  number  of  the  plaintiff's 
slaves  deserted  from  his  said  plantation,  and  on  the  following  day 
thirty-eight  of  them  were  found  on  board  the  Terror  Bomb,  part  of 
the  squadron  at  Cumberland  Island,  and  entered  on  her  muster-books 
as  refugees  from  St.  John's.  *  *  *  q^  ^\^q  26th  of  the  same 
month  of  February,  Sir  George  Cockburn  received  from  the  plaintiff 
a  niemorial.  *  *  *  The  plaintiff  prayed  "that  the  defendant,  Sir 
G.  Cockburn,  would  order  the  said  thirty-eight  slaves  to  be  forthwith 
delivered  to  him,  their  lawful  proprietor."  *  *  *  3ij-  q  Cockburn 
told  him  he  might  see  his  slaves,  and  use  any  arguments  and  persua- 
sions he  chose  to  induce  them  to  return.  The  plaintiff  accordingly  en- 
deavored to  persuade  them  to  go  back  to  his  plantation,  and  no  re- 
straint was  -put  upon  them,  but  they  refused  to  go.  The  plaintiff  then 
urged  his  claim  very  strongly  to  Sir  G.  Cockburn,  and  said  he  must 
get  redress  if  he  did  not  succeed  in  prevailing  upon  Sir  G.  Cockburn 
to  order  them  back  again,  which  Sir  G.  Cockburn  said  he  could  not  do, 
because  they  were  free  agents  and  might  do  as  they  pleased,  and  that 
he  could  not  force  them  back.^^ 

Bayle;y,  J.  It  is  a  matter  of  great  satisfaction  to  me  that  this  case, 
which  is  one  of  considerable  importance,  and  of  some  novelty,  may,  at 
the  option  of  either  party,  be  turned  into  a  special  verdict.  At  present 
the  impression  upon  my  mind  is,  that  the  action  is  not  maintainable. 
The  cases  decided  in  the  Admiralty  Courts  are  not  applicable  to  the 
present.  There  certain  persons  had  taken  upon  themselves  to  be  ac- 
tive, and  to  seize  ships  having  slaves  on  board,  on  the  ground  that 
they  had  a  right  so  to  do,  either  by  the  law  of  nations  or  the  law  of 
this  counti-y.  The  Court  of  Admiralty  refused  to  assist  the  captors  in 
condemning  that  property,  to  which  the  claimants,  by  the  law  of  the 
particular  country  to  which  they  belonged,  had  a  right.  In  such  cases 
the  Court  of  Admiralty  is  called'  upon  to  act  between  the  two  countries 
upon  a  common  principle- applicable  to  both.  That  court,  therefore, 
cannot  lend  its  assistance  in  the  condemnation  of  a  vessel,  on  the 
ground  that  it  is  engaged  in  a  traffic  which,  according  to  the  municipal 
laws  of  the  country  to  which  the  claimant  belongs  is  no  wrong.  The 
captain  of  the  Fortuna  had  done  no  act  that  subjected  him  to  con- 
demnation by  the  laws  of  his  own  country,  and  this  country  had  no 
right  to  say  that  he  had  been  doing  wrong,  or  that  his  property  was 
subject  to  condemnation.  In  substance,  therefore,  the  decision  of 
that  Court  operates  only  in  the  nature  of  an  amoveas  manus  and  no 
more.  In  Madrazzo  v.  Willes,  the  defendant  had  taken  upon  himself 
to  be  active,  and  to  seize  the  ship  and  slaves,  and  the  court  held  that 

2  9  A  shortened  statement  of  facts  has  been  substituted  for  that  of  the  origi- 
nal report  and  parts  of  the  opinions  of  Bayley  and  Best,  JJ.,  arc  omitted. 


328    •  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1' 

he  had  no  right  to  make  the  seizure.  Having  thus  disposed  of  the 
authorities  referred  to  in  argument,  I  now  come  to  consider  the  ques- 
tion for  our  decision.  My  opinion  in  this  case  does  not  at  all  pro- 
ceed upon  the  ground  that  slavery  is  not  to  be  tolerated  in  the  place 
where  these  slaves  came  on  board ;  nor  that  an  action,  under  circum- 
stances, may  not  be  maintained  for  enticing  away  or  harbouring  a 
slave;  nor  on  the  ground  that  the  instant  he  leaves  his  master's  plan- 
tation and  gets  upon  other  land,  where  slavery  is  not  tolerated,  that, 
ex  necessitate,  he  becomes,  to  all  intents  and  purposes,  a  free  man. 
I  give  no  opinion  upon  any  one  of  these  points ;  but  I  say  that  there 
is  a  great  distinction  between  making  the  law  of  England  active,  and 
leaving  the  law  of  England  passive.  Here  we  are  called  upon  to  put 
that  law  into  activity  upon  the  ground  that  the  defendants  have  done 
a  wrong.     *     *     * 

HoLROYD,  J.  I  am  also  of  opinion  that  the  plainti'ff  is  not  entitled  to 
maintain  the  present  action.  The  declaration  alleges  that  the  plaintiff 
was  the  proprietor,  and  it},  the  possession  of  a  cotton  plantation  lying 
contiguous  to  the  river  St.  John's,  in  East  Florida,  on  which  land  he 
employed  divers  persons,  his  slaves  or  servants.  The  plaintiff  there- 
fore claims  a  general  property  in  them  as  his  slaves  or  servants,  and 
he  claims  this  property,  as  founded,  not  upon  any  municipal  law  of 
the  country  where  he  resides,  but  upon  a  general  right.  This  action 
is  therefore  founded  upon  an  injury  done  to  that  general  right.  Now 
it  appears,  from  the  facts  of  the  case,  that  the  plaintiff  had  no  right 
in  these  persons,  except  in  their  character  of  slaves,  for  they  were  not 
serving  him  under  any  contract;  and,  according  to  the  principles  of 
the  English  law,  such  a  right  cannot  be  considered  as  warranted  by 
the  general  law  of  nature.  I  do  not  mean  to  say  that  particular  cir- 
cumstances may  not  introduce  a  legal  relation  to  that  extent ;  but 
assuming  that  there  may  be  such  a  relation,  it  can  only  have  a  local 
existence,  where  it  is  tolerated  by  the  particular  law  of  the  place,  to 
which  law  all  persons  there  resident  are  bound  to  submit.  Now  if  the 
plaintiff  cannot  maintain  this  action  under  the  general  law  of  nature, 
independently  of  any  positive  institution,  then  his  right  of  action  can 
be  founded  only  upon  some  right  which  he  has  acquired  by  the  law  of 
the  country  where  he  is  domiciled.  If  he,  being  a  British  subject, 
could  show  that  the  defendant,  also  a  British  subject,  had  entered  the 
country  where  he,  the  plaintiff,  was  domiciled,  and  had  done  any  act 
amounting  to  a  violation  of  that  right  to  the  possession  of  slaves 
which  was  allowed  by  the  laws  of  that  country,  I  am  by  no  means 
prepared  to  say  that  an  action  might  not  be  maintained  against  him. 
The  laws  of  England  will  protect  the  rights  of  British  subjects,  and 
give  a  remedy  for  a  grievance  committed  by  one  British  subject  upon 
another,  in  whatever  country  that  may  be  done.  That,  however,  is 
a  very  different  case  from  the  present.  Here,  the  plaintiff,  a  British 
subject,  was  resident  in  a  Spanish  colony,  and  perhaps  it  may  be  in- 
ferred, from  what  is  stated  in  the  special  case,  that,  by  the  law  of 


Ch.  4)  JURISDICTION   OF   STATES  329 

that  colony,  slavery  was  tolerated.  I  am  of  opinion,  that,  according 
to  the  principles  of  the  English  law,  the  right  to  slaves,  even  in  a 
country  where  such  rights  are  recognized  by  law,  must  be  considered 
as  founded  not  upon  the  law  of  nature,  but  upon  the  particular  law 
of  that  country.  And,  supposing  that  the  law  of  England  would  give 
a  remedy  for  the  violation  of  such  a  right  by  one  British  subject  to 
another  (both  being  resident  in  and  bound  to  obey  the  laws  of  that 
country)  still  the  right  to  these  slaves  being  founded  upon  the  law 
of  Spain,  as  applicable  to  the  Floridas,  must  be  co-extensive  with  the 
territories  of  that  state. 

I  do  not  mean  to  say,  that  if  the  plaintiff  having  the  right  to  possess 
these  persons  as  his  slaves  there,  had  taken  them  into  another  place, 
where,  by  law,  slavery  also  prevailed,  his  right  would  not  have  con- 
tinued in  such  a  place,  the  laws  of  both  countries  allowing  a  property 
in  slaves.  The  law  of  slavery  is,  however,  a  law  in  invitum ;  and 
when  a  party  gets  out  of  the  territory  where  it  prevails,  and  out  of 
the  power  of  his  master,  and  gets  under  the  .protection  of  another 
power,  without  any  wrongful  act  done  by  the  party  giving  that  pro- 
tection, the  right  of  the  master,  which  is  founded  on  the  municipal  law 
of  the  particular  place  only,  does  not  continue,  and  there  is  no  right 
of  action  against  a  party  who  merely  receives  the  slave  in  that  country, 
without  doing  any  wrongful  act.  This  has  been  decided  to  be  the  law 
with  respect  to  a  person  who  has  been  a  slave  in  any  of  our  West 
India  colonies  and  comes  to  this  countr}'.  The  moment  he  puts  his 
foot  on  the  shores  of  this  country  his  slaverv^  is  at  an  end.  Put  the 
case  of  an  uninhabited  island  discovered  and  colonized  by  the  sub- 
jects of  this  country ;  the  inhabitants  would  be  protected  and  governed 
by  the  laws  of  this  country.  In  the  case  of  a  conquered  country, 
indeed,  the  old  laws  would  prevail,  until  altered  by  the  King  in  coun- 
cil; but  in  the  case  of  the  newl}-  discovered  country,  freedom  would  be 
as  much  the  inheritance  of  the  inhabitants  and  their  children  as  if 
they  were  treading  on  the  soil  of  England.  Now,  suppose  a  person 
who  had  been  a  slave  in  one  of  our  own  \\'^est  India  settlements,  es- 
caped to  such  a  country,  he  would  thereby  become  as  much  a  freeman 
as  if  he  had  come  into  England.  He  ceases  to  be  a  slave  in  England 
only  because  there  is  no  law  which  sanctions  his  detention  in  slavery ; 
for  the  same  reason  he  would  cease  to  be  a  slave  the  moment  he 
landed  in  the  supposed  newly  discovered  island.  In  this  case,  indeed, 
the  fugitives  did  not  escape  to  any  island  belonging  to  England,  but 
they  went  on  board  an  English  ship  (which  for  this  purpose  may  be 
considered  a  floating  island),  and  in  that  ship  they  became  subject  to 
the  English  laws  alone.  They  then  stood  in  the  same  situation  in 
this  respect  as  if  they  had  come  to  an  island  colonized  by  the  English. 
It  was  not  a  wrongful  act  in  the  defendants  to  receive  them,  quite 
the  contrary.  The  moment  they  got  on  board  the  English  ship  there 
was  an  end  of  any  right  which  the  plaintiff  had  by  the  Spanish  laws 
acquired  over  them  as  slaves.     They  had  got  beyond  the  control  of 


330  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

their  master,  and  beyond  the  territory  where  the  law  recognizing  them 
as  slaves  prevailed.  They  were  under  the  protection  of  another  power. 
The  defendants  were  not  subject  to  the  Spanish  law,  for  they  had 
never  entered  the  Spanish  territories,  either  as  friends  or  enemies. 
The  plaintiff  was  permitted  to  see  the  men,  and  to  endeavor  to  per- 
suade them  to  return;  but  in  that  he  failed.  He  never  applied  to  be 
permitted  to  use  force ;  and  it  does  not  appear  that  he  had  the  means 
of  doing  so.  I  think  that  Sir  G.  Cockburn  was  not  bound  to  do 
more  than  he  did ;  whether  he  was  bound  to  do  so  much  it  is  unneces- 
sary for  me  to  say.  It  was  not  a  wrongful  act  in  him,  a  British  officer, 
to  abstain  from  using  force  to  compel  the  men  to  return  to  slavery. 
It  does  not  appear  that  he  prevented  force  being  used.  I  do  not  say 
that  he  might  not  have  refused,  but  in  fact  there  was  no  refusal.  I 
have  given  my  opinion  upon  this  question,  supposing  that  there  woulci 
be  a  right  of  action  against  these  defendants,  if  a  wrong  had  actually 
been  done  by  them,  but  I  am  by  no  means  clear  that,  even  under  such 
circumstances,  any  action  would  have  been  maintainable  against  them 
by  reason  of  their  particular  situation  as  officers  acting  in  discharge 
of  a  public  duty,  in  a  place  flagrante  bello.  I  doubt  whether  the  ap- 
plication ought  not'  to  have  been  made  in  such  a  case  to  the  govern- 
ing powers  of  this  country  for  redress.  The  cases  from  the  admiralty 
courts  are  distinguishable  from  the  present,  upon  the  grounds  already 
stated  by  my  Brother  Bayley.  In  Madrazo  v.  Willes,  3  B.  &  Aid. 
353,  the  plaintiff  was  a  Spanish  subject,  and  by  the  law  of  Spain 
slavery  and  the  trade  in  slaves  being  tolerated,  he  had  a  right,  by 
the  laws  of  his  own  country,  to  exercise  that  trade.  The  taking  away 
the  slaves  was  an  active  wrong  done  in  aggression  upon  rights  given  by 
the  Spanish  law.  That  is  very  different  from  requiring,  as  in  this 
case,  an  act  to  be  done  against  the  slaves,  who  had  voluntarily  left 
their  master.  When  they  got  out  of  the  territory  where  they  became 
slaves  to  the  plaintiff  and  out  of  his  power  and  control,  they  were, 
by  the  general  law  of  nature,  made  free,  unless  they  were  slaves  by 
the  particular  law  of  the  place  w'here  the  defendant  received  them. 
They  were  not  slaves  by  the  law  which  prevailed  on  board  the  British 
ship  of  war.  I  am,  therefore,  of  opinion  that  the  defendants  are  en- 
titled to  the  judgment  of  the  court. 

Best,  j^  *  *  *  'pj-^g  qviestion  is,  were  these  persons  slaves  at 
the  time  when  Sir  G.  Cockburn  refused  to  do  the  act  which  he  was 
desired  to  do?  I  am  decidedly  of  opinion  that  they  were  then  no 
longer  slaves.  The  moment  they  put  their  feet  on  board  of  a  British 
man-of-war,  not  lying  within  the  waters  of  East  Florida  (where,  un- 
doubtedly, the  laws  of  that  country  would  prevail),  those  persons  who 
before  had  been  slaves  were  free.  The  defendants  were  not  guilty 
of  any  act  prejudicial  to  the  rights  which  the  plaintiff  alleges  to  have 
been  infringed.  Those  rights  were  at  an  end  before  the  defendants 
were  called  upon  to  act.  Slavery  is  a  local  law,  and,  therefore,  if  a 
man  wishes  to  -preserve  his  slaves,  let  him  attach  them  to  him  by 


Ch.  4)  JURISDICTION   OF   STATES  331 

affection,  or  make  fast  the  bars  of  their  prison,  or  rivet  well  their 
chains,  for  the  instant  they  get  beyond  the  limits  where  slavery  is 
recognized  by  the  local  law,  they  have  broken  their  chains,  they  have 
escaped  from  their  prison,  and  are  free.  These  men,  when  on  board 
an  English  ship,  had  all  the  rights  belonging  to  Englishmen,  and  were 
subject  to  all  their  liabilities.  If  they  had  committed  any  offence  they 
must  have  been  tried  according  to  English  laws.  If  any  injury  had 
been  done  to  them  they  would  have  had  a  remedy  by  applying  to  the 
laws  of  this  country  for  redress.  I  think  that  Sir  G.  Cockburn  did 
all  that  he  lawfully  could  do  to  assist  the  plaintiff;  he  permitted  him 
to  endeavor  to  persuade  the  slaves  to  return;  but  he  refused  to  apply 
force.  I  think  that  he  might  have  gone  further,  and  have  said  that 
force  should  not  be  used  by  others ;  for  if  any  force  had  been  used  by 
the  master  or  any  person  in  his  assistance,  can  it  be  doubted  that  the 
slaves  might  have  brought  an  action  of  trespass  against  the  persons 
using  that  force?  Nay,  if  the  slave,  acting  upon  his  newly  recovered 
right  of  freedom,  had  determined  to  vindicate  that  right,  originally 
the  gift  of  nature,  and  had  resisted  the  force,  and  his  death  had 
ensued  in  the  course  of  such  resistance,  can  there  be  any  doubt  that 
every  one  who  had  contributed  to  that  death  would,  according  to  our 
laws,  be  guilty  of  murder?  That  is  substantially  decided  by  Som- 
mersett's  Case,  from  which,  it  is  clear,  that  such  would  have  been  the 
consequence  had  these  slaves  been  in  England;  and  so  far  as  this 
question  is  concerned,  there  is  no  difference  between  an  English  ship 
and  the  soil  of  England ;  for  are  not  those  on  board  an  English  ship 
as  much  protected  and  governed  by  the  English  laws  as  if  they  stood 
upon  English  land?     *     *     * 

There  is  no  statute  recognizing  slavery  which  operates  in  the  part 
of  the  British  empire  in  which  we  are  now  called  upon  to  administer 
justice.     *     *     * 

The  place  where  the  transaction  took  place  was,  with  respect  to  this 
question,  the  same  as  the  soil  of  England.  Had  the  defendants  de- 
tained these  men  on  board  their  ships  near  the  coast  of  England,  a  writ 
of  habeas  corpus  would  have  set  them  at  liberty.  *  *  *  For  these 
reasons  I  am  of  opinion,  that  our  judgment  must  be  for  the  defend- 
ants. 

Judgment  for  the  defendants.*" 

8  0  In  the  Case  of  John  Brown,  1820,  Sir  William  Scott  (Lord  Stowell)  wrote 
an  elaborate  opinion  for  the  British  foreign  office,  in  which  he  vigorously  main- 
tained that  the  right  of  asylum,  as  regards  political  refugees,  does  not  prop- 
erly belong  to  ships  of  war. 

"Your  Excellency  will  find  it  easy,  from  these  papers,  to  give  such  an 
explanation  of  the  circumstances  which  attended  the  liberation  in  England 
of  this  individual,  as  will  be  satisfactory  to  the  Spanish  minister.  You  will  at 
the  same  time,  on  the  part  of  your  court,  disavow  Captain  Falcon's  conduct  In 
rescuing  Brown  on  board  his  ship  within  a  Spanish  port,  and  not  delivering 
him  up,  upon  the  requisition  of  the  local  authorities.  The  officer  no  doubt, 
acted  upon  a  good  motive,  but  in  assuming  that  the  British  flag  could  protect 
him  against  the  legal  process  of  the  territorial  jurisdiction  within  which  the 


332  RIGHTS  AND   DUTIES   OF   NATIONS   IN  TIME   OF   PEACE       (Part  1 

(C)  On  Merchant  Vessel 

UNITED  STATES  v.  DIEKELMAN. 
(Supreme  Court  of  the  United  States,  1875.    92  U.  S.  520,  23  L.  Ed.  742.) 

Mr,  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

This  suit  was  brought  in  the  Court  of  Claims  under  the  authority  of 
a  joint  resolution  of  both  houses  of  Congress,  passed  May  4,  1870,  as 
follows : 

"That  the  claim  of  E.  Diekelman,  a  subject  of  the  King  of  Prussia, 
for  damages  for  an  alleged  detention  of  the  ship  Essex  by  the  military 

parties  then  were,  was  to  maintain  a  principle  wliich  the  British  government 
desire  distinctly  to  disclaim  as  not  consistent  with  their  uniform  practice, 
or  with  the  law  of  nations."  Report  of  Royal  Commission  on  Fugitive  Slaves, 
p.  Ixxvii. 

On  the  other  hand,  a  directly  opposite  view  was  expressed  by  Lord  Palmers- 
ton,  in  1849.  Mr.  Addington,  writing  to  the  Secretary  of  the  Admiralty,  Au- 
gust 4th,  said: 

"Viscount  Palmerston  directs  me  to  request  that  you  will  acquaint  the  Board 
of  Admiralty  that  his  Lordship  is  of  opinion  that  it  would  not  lie  right  to 
receive  and  harbor  on  board  a  British  ship  of  war  any  person  flying  from  jus- 
tice on  a  criminal  charge,  or  who  was  escaping  from  the  sentence  of  a  court 
of  law.  But  a  British  man-of-war  has  always  and  everywhere  been  considered 
a  safe  place  of  refuge  for  persons  of  whatever  country  or  party  who  have 
sought  shelter  under  the  British  flag  from  persecution  on  account  of  their 
political  conduct  or  opinions ;  and  this  protection  has  been  equally  afforded, 
whether  the  refugee  was  escaping  from  the  arbitrary  acts  of  a  monarchical 
government,  or  from  the  lawless  violence  of  a  revolutionary  commit- 
tee.    *     * ,   * 

"Although  the  commander  of  such  ship  of  war  should  not  seek  out  or  invite 
political  refugees,  yet  he  ought  not  to  turn  away  nor  to  give  up  any  who  may 
reach  his  ship  and  ask  admittance  on  board.  Such  oflicer  must  of  course 
take  care  that  such  refugees  shall  not  carry  on  from  on  board  his  ship  any 
political  correspondence  with  their  partisans  on  shore,  and  he  ought  to  avail 
himself  of  the  earliest  opportunity  to  send  them  to  some  place  of  safety  else- 
where."    Rep.  of  Royal  Comm.  on  Fug.  Slaves,  p.  155. 

For  a  full  discussion  of  the  question  of  the  extraterritoriality  of  ships  of 
war,  see  the  separate  reports  of  Lord  Chief  Justice  Cockburn  and  Mr.  Rothery 
in  the  Report  of  the  Royal  Commission  on  Fugitive  Slaves.  1876.  Mr.  Rothery 
takes  strong  ground  against  the  right  of  asylum  on  such  ships. 

Sir  James  Fitzjames  Stei)heu,  another  member  of  the  commission,  takes 
similar  ground.    Stephen's  History  of  the  Criminal  Law,  II,  43-58. 

As  to  American  practice.  Attorney  General  Bradford  held,  in  1794,  that  a 
"writ  of  habeas  corpus  may  be  awarded  to  bring  up  an  American  subject  un- 
lawfully detained  on  board  a  foreign  ship  of  war,  the  commander  being  amen- 
able to  the  usual  jurisdiction  of  the  state  where  he  happens  to  be,  and  not 
entitled  to  claim  the  extraterritoriality  which  is  annexed  to  a  foreign  minister 
and  his  domicil."     Wharton's  Digest,  I,  138. 

But  in  1855  Attorney  General  Gushing — a  high  authority — held  that  a 
"prisoner  of  war  on  board  a  foreign  ship  of  war,  or  of  her  prize,  cannot  be 
released  by  habeas  corpus  issuing  from  courts  of  the  United  States  or  of  a 
particular  state."  And  again,  in  1856:  "Ships  of  war  enjoy  the  full  rights 
of  extraterritoriality  in  foreign  ports  and  territorial  waters."  Wharton's 
Digest,  I,  138.  It  would  seem  to  follow,  therefore,  that  right  of  asylum  could 
be  granted  on  American  ships  of  war.  In  South  American  ports  it  has 
frequently  been  done.  Freeman  Snow's  Cases  on  International  Law  (1893) 
146.  147.  note. 


Ch.  4)  JURISDICTION   OF   STATES  333 

authorities  of  the  United  States  at  New  Orleans,  in  the  month  of 
September,  1862,  be  and  is  hereby  referred  to  the  Court  of  Claims  for 
its  decision  in  accordance  with  law,  and  to  award  such  damages  as 
may  be  just  in  the  premises,  if  he  may  be  found  to  be  entitled  to  any 
damages." 

Before  this  resolution  was  passed,  the  matter  of  the  claim  had  been 
the  subject  of  diplomatic  correspondence  between  the  governments  of 
the  United  States  and  Prussia. 

The  following  article,  originally  adopted  in  the  treaty  of  peace  be- 
tween the  United  States  and  Prussia,  concluded  July  11,  1799  (8 
Stat.  168),  and  revived  by  the  treaty  concluded  May  1,  1828  (8  Stat. 
384),  was  in  force  when  the  acts  complained  of  occurred,  to  wit : 

"Art.  XIII.  And  in  the  same  case,  if  one  of  the  contracting  parties, 
being  engaged  in  war  with  any  other  power,  to  prevent  all  the  diffi- 
culties and  misunderstandings  that  usually  arise  respecting  merchan- 
dise of  contraband,  such  as  arms,  ammunition,  and  military  stores  of 
every  kind,  no  such  articles  carried  in  the  vessels,  or  by  the  subjects 
or  citizens  of  either  party,  to  the  enemies  of  the  other,  shall  be 
deemed  contraband  so  as  to  induce  confiscation  or  condemnation,  and 
a  loss  of  property  to  individuals.  Nevertheless,  it  shall  be  lawful  to 
stop  such  vessels  and  articles,  and  to  detain  them  for  such  length  of 
time  as  the  captors  may  think  necessary  to  prevent  the  inconvenience 
or  damage  that  might  ensue  from  their  proceeding;  paying,  however, 
a  reasonable  compensation  for  the  loss  such  arrest  shall  occasion  to 
the  proprietors :  and  it  shall  further  be  allowed  to  use  in  the  service 
of  the  captors  the  whole  or  any  part  of  the  military  stores  so  detained, 
paying  the  owners  the  full  value  of  the  same,  to  be  ascertained  by  the 
current  price  at  the  place  of  its  destination.  But  in  the  case  sup- 
posed of  a  vessel  stopped  for  articles  of  contraband,  if  the  master  of 
the  vessel  stopped  will  deliver  out  the  goods  supposed  to  be  of  contra- 
band nature,  he  shall  be  admitted  to  do  it,  and  the  vessel  shall  not, 
in  that  case,  be  carried  'into  any  port,  nor  further  detained,  but  shall 
be  allowed  to  proceed  on  her  voyage." 

When  the  Essex  visited  New  Orleans,  the  United  States  were  en- 
gaged in  the  War  of  the  Rebellion.  The  port  of  that  city  was,  at  the 
very  commencement  of  the  war,  placed  under  blockade,  and  closed 
against  trade  and  commercial  intercourse;  but,  on  the  12th  of  May, 
1862,  the  President,  having  become  satisfied  that  the  blockade  might 
"be  safely  relaxed  with  advantage  to  the  interests  of  commerce,"  is- 
sued his  proclamation,  to  the  effect  that  from  and  after  June  1  "com- 
mercial intercourse,  *  *  *  except  as  to  persons,  things,  and  in- 
formation contraband  of  war,"  might  "be  carried  on  subject  to  the 
laws  of  the  United  States,  and  to  the  limitations,  and  in  pursuance  of 
the  regulations  *  *  *  prescribed  by  the  Secretary  of  the  Treas- 
ury," and  appended  to  the  proclamation.  These  regulations  so  far  as 
they  are  applicable  to  the  present  case,  are  as  follows : 


334  RIGHTS  AND   DUTIES   OF  NATIONS   IN   TIME   OF   PEACE       (Part  1 

"1.  To  vessels  clearing  from  foreign  ports  and  destined  to  *  *  * 
New  Orleans,  *  *  *  licenses  will  be  granted  by  consuls  of  the 
United  States  upon  satisfactory  evidence  that  the  vessels  so  licensed 
will  convey  no  persons,  property,  or  information  contraband  of  war 
either  to  or  from  the  said  ports ;  which  licenses  shall  be  exhibited  to  the 
collector  of  the  port  to  which  said  vessels  may  be  respectively  bound, 
immediately  on  arrival,  and,  if  required,  to  any  officer  in  charge  of 
the  blockade;  and  on  leaving  either  of  said  ports  every  vessel  will  be 
required  to  have  a  clearance  from  the  collector  of  the  customs  accord- 
ing to  law,  showing  no  violation  of  the  conditions  of  the  license."  12 
Slat.  1264. 

The  Essex  sailed  from  Liverpool  for  New  Orleans  June  19,  1862, 
bnd  arrived  August  24.  New  Orleans^was  then  in  possession  of  the 
military  forces  of  the  United  States,  with  General  Butler  in  com- 
mand. The  city  was  practically  in  a  state  of  siege  by  land,_but  open 
by  sea,  and  was  under  martial  law. 

The  commanding  general  was  expressly  enjoined  by  the  government 
of  the  United  States  to  take  measures  that  no  supplies  went  out  of  the 
port  which  could  afford  aid  to  the  rebellion;  and,  pursuant  to  this 
injunction,  he  issued  orders  in  respect  to  the  exportation  of  money, 
goods,  or  property,  on  account  of  any  person  known  to  be  friendly  to 
the  Confederacy,  and  directed  the  custom-house  officers  to  inform  him 
whenever  an  attempt  was  made  to  send  anything  out  which  might  be 
the  subject  of  investigation  in  that  behalf. 

In  the  early  part  of  September,  1862,  General  Butler,  being  still  in^ 
command,  was  informed  that  a  large  quantity  of  clothing  had  been 
bought  in  Belgium  on  account  of  the  Confederate  government,  and  was 
lying  at  Matamoras  awaiting  delivery,  because  that  government  had 
failed  to  get  the  means  they  expected  from  New  Orleans  to  pay  for  it ; 
and  that  another  shipment,  amounting  to  a  half  million  more,  was 
delayed  in  Belgium  from  coming  forward  because  of  the  non-payment 
of  the  first  shipment.  He  was  also  informed  that  it  was  expected  the 
first  payment  would  go  forward  through  the  agency  of  some  foreign 
consuls ;  and  this  information  afterwards  proved  to  be  correct. 

He  was  also  informed  early  in  September  by  the  custom-house  offi- 
cers that  large  quantities  of  silver-plate  and  bullion  were  being  _ 
shipped  on  the  Essex,  then  loading  for  a  foreign  port,  by  ^persons,  one 
of  whom  had  declared  himself  an  enemy  of  the  United  States,  and 
aone  of  whom  would  enroll  themselves  as  friends;  and  he  thereupon 
gave  directions  that  the  specified  articles  should  be  detained,  and 
their  exportation  not  allowed  until  further  orders. 

On  the  15th  September,  the  loading  of  the  vessel  having  been 
completed,  the  master  applied  to  the  collector  of  the  port  for  his^ 
clearance,  which  was  refused  in  consequence  of  the  orders  of  General 
Butler,  but  without  any  reasons  being  assigned  by  the  collector.  The 
next  day,   he  was  informed,   however,   that  his   ship  would  not  be 


Ch.  4)  JURISDICTION   OF   STATES  335 

cleared  unless  certain  specified  articles  which  she  had  on  board  were 
taken  out  and  landed.  Much  correspondence  ensued  between  General 
Butler  and  the  Prussian  consul  at  New  Orleans  in  reference  to  the 
clearance,  in  which  it  was  distinctly  stated  by  General  Butler  that  the 
clearance  would  not  be  granted  until  the  specified  goods  were  landed, 
and  that  it  would  be  granted  as  soon  as  this  should  be  done.  Almost 
daily  interviews  took  place  between  the  master  of  the  vessel  and  the 
collector,  in  which  the  same  statements  were  made  by  the  collector. 
The  master  refused  to  land  the  cargo,  except  upon  the  return  of  his 
bills  of  lading.  Some  of  these  bills  were  returned,  and  the  property 
surrendered  to  the  shipper.  In  another  case,  the  shipper  gave  an 
order  upon  the  master  for  his  goods,  and  they  were  taken  away  by 
force.  At  a  very  early  stage  in  the  proceeding,  the  master  and  the 
Prussian  consul  were  informed  that  the  objection  to  the  shipment  of 
the  articles  complained  of  was  that  they  were  contraband. 

A  part  only  of  the  goods  having  been  taken  out  of  the  vessel,  a 
clearance  was  granted  her  on  the  6th  of  October,  and  she  was  per- 
mitted to  leave  the  port  and  commence  her  voyage. 

Upon  this  state  of  facts,  the  Court  of  Claims  gave  judgment  for 
JDiekelman,  from  which  the  United  States  took  an  appeal.     *     *     * 

1.  As  to  the  general  law  of  nations. 

The  merchant  vessels  of  one  country  visiting  th^ports  of  anotlier 
for  the  purposes  of  trade  subject  themselves  to  the  laws  which  govern 
the  port  they  visit,  so  long  as  they  remain;  and  this  as  well  in  war  as 
in  peace,  unless  it  is  otherwise  provided  by  treaty.  The  Exchange  v. 
McFaddon,  7  Cranch,  116,  3  L.  Ed.  287.  When  the  Essex  sailed  from 
Liverpool,  the  United  States  were  engaged  in  war.  The  proclamation 
under  which  she  was  permitted  to  visit  New  Orleans  made  it  a  condi- 
tion of  her  entry  that  she  should  not  take  out  goods  contraband  of  war, 
and  that  she  should  not  leave  until  cleared  by  the  collector  of  customs 
according  to  law.  Previous  to  June  1  she  was  excluded  altogether 
from  the  port  by  the  blockade.  At  that  date  the  blockade  was  not 
removed,  but  relaxed  only  in  the  interests  of  commerce.  The  war 
still  remained  paramount,  and  commercial  intercourse  subordinate 
only.  When  the  Essex  availed  herself  of  the  proclamation  and 
entered  the  port,  she  assented jtp  the  conditions  imposed,  and  cannot 
^omplain  if  she  was  detained  on  account  of  the  necessity  of  enforcing 
her_obligations  thus  assumed.     *     *     * 

We  are  clearly  of  the  opinion  that  there  Is  no  liability  to  this  plain- 
tiff resting  upon  the  United  States  under  the  general  law  of  nations. 

2.  As  to  the  treaty. 

The  vessel  was  in  port  when  the  detention  occurred.  She  had  not 
broken  ground,  and  had  not  commenced  her  voyage.  She  came  into 
the  waters  of  the  United  States  while  an  impending  war  was  flagrant, 
under  an  agreement  not  to  depart  with  contraband  goods  on  board. 
The  question  is  not  whether  she  could  have  been  stopped  and  detained 


336  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF  PEACE       (Part  1 

after  her  voyage  had  been  actually  commenced,  without  compensation 
for  the  loss,  but  whether  she  could  be  kept  from  entering  upon  the 
voyage  and  detained  by  the  United  States  within  their  own  waters, 
held  by  force  against  a  powerful  rebellion,  until  she  had  complied 
with  regulations  adopted  as  a  means  of  safety,  and  to  the  enforcement 
of  which  she  had  assented,  in  order  to  get  there.  In  our  opinion,  no 
provision  of  the  treaties  in  force  between  the  two  governments  inter- 
feres with  the  right  of  the  United  States,  under  the  general  law  of 
nations,  to  withhold  a  custom-house  clearance  as  anieahs  of^^enforcing 
port  regulations.     *     *     * 

Art.  XIII  of  the  treaty  of  1799,  revived  by  that  of  1828,  evidently 
has  reference  to  captures  and  detentions  after  a  voyage  has  com- 
menced, and  not  to  detentions  in  port,  to  enforce  port  regula- 
tions.    *     *     * 

As  we  view  the  case,  the  claimant  is  not  "entitled  to  any  damages" 
as  against  the  United  States,  either  under  the  treaty  with  Prussia  or 
by  the  general  law  of  nations. 

The  judgment  of  the  Court  of  Claims  is,  therefore,  reversed,  and  the 
cause  remanded  with  directions  to  dismiss  the  petition.^^ 

31  In  Sotelo's  Case,  1  Calvo,  569  (1840),  M.  Sotelo,  an  ex-Spanish  Minister 
of  State,  was  taken  off  the  French  merchant  vessel  L'OcSan  on  reaching  Ali- 
cante, a  Spanish  port. 

To  the  same  effect  was  the  opinion  of  Lord  Aberdeen,  as  appears  from 
the   following : 

•*I  am  directed  by  Lord  Aberdeen  to  acqiiaint  yon,  for  the  information 
of  the  Lords  Commissioners  of  the  Admiralty,  that  there  is  no  stipula- 
tion in  the  existing  treaties  between  this  country  and  Spain  which  can 
be  deemed  sufRcientI  to  debar  the  Spanish  government  from  exercising  the 
right  which,  in  his  lordship's  opinion,  appertains  to  that  government  of  claim- 
ing its  own  subjects  when  they  may  be  found  in  a  Spanish  port  as  passengers 
on  board  vessels  hired  to  convey  the  mails  between  this  country  and  the  Penin- 
sula." Viscount  Canning  to  the  Secretary  of  the  Admiralty,  March  20,  1844 ; 
Rep.  of  Royal  Comm.  on  Fugitive  Slaves,  154. 

The  better  American  precedents  are  in  accord.  In  the  Case  of  Gomez 
(United  States  Foreign  Relations,  1885.  82),  Secretary  of  State  Bayard,  on 
March  12,  1885,  sent  the  following  instructions  to  Minister  Hall : 

"It  appears  that  Mr.  Gomez,  who  is  said  to  be  a  political  fugitive  from  Nic- 
aragua, voluntarily  took  passage  at  San  Josig  de  Guatemala  for  Punta 
Arenas,  Costa  Rica,  on  board  the  Pacific  Mail  steamship  Honduras  with  the 
knowledge  that  the  vessel  would  enter  en  route  the  port  of  San  Juan  del  Sur, 
Nicaragua. 

"The  government  of  Nicaragua  upon  learning  of  this  fact  ordered  the  com- 
mandant of  the  port  of  San  Juan  del  Sur  to  arrest  Gomez  upon  the  arrival 
of  the  Honduras  at  that  port. 

"The  minister  for  foreign  affairs  of  Nicaragua  informed  Mij.  Leavitt,  United 
States  consul  at  Managua,  of  the  action  of  the  government  by  a  telegram,  as 
follows : 

"  'Government  has  ordered  the  commander  of  port  San  Juan  del  Sur  to 
arrest  Jose  Dolores  Gomez,  a  fugitive  prisoner,  who  is  on  board  of  the  steam- 
er Honduras,  now  en  route  to  that  port.  I  suppose  the  captain  will  not  inter- 
fere with  the  action  of  the  commander,  but  to  avoid  whatever  difficulties  like- 
ly to  arise  I  suggest  you  to  send  a  telegraphic  message  to  the  captain  of  the 
Honduras,  at  San  Juan  del  Sur,  stating  that  the  order  has  been  issued  by 
the  government  and  recommending  him  to  support  the  commander,  as  there 


Ch.  4)  JURISDICTION    OF    STATES  337 


SECTION  3.— EXTRATERRITORIAL  JURISDICTION 
1.  In  Case  of  Piracy 


OPINION  OF  SIR  LEOLINE  JENKINS. 

Charge  to  the  Jury,  1668 

(1  Life  of  Sir  Leoline  Jenkins,  LXXXVI.) 

There  are  some  sorts  of  felonies  and  offences,  which  cannot  be 
committed  anywhere  else  but  upon  the  sea,  within  the  jurisdiction 
of  the  Admiralty.  These  I  shall  insist  upon  a  little  more  particularly, 
and  the  chiefest  in  this  kind  isjjiracy. 

You  are  therefore  to  inquire  of  all  Pirates  and  sea-rovers ;  they  are 
in  the  eye  of  the  law  hostes  humani  generis,  ejiemies  not  of  onena- 
tion  or  of  one  sort  of  people  only,  but  of  all  mankind.  They  are 
outlawed,  as  I  may  say,  by  the  laws  of  all  nations,  that  is,  out  of 

is  no  ground  on  the  part  of  the  captain  to  hinder  the  execution  of  the  govern- 
ment order.' 

"It  appears  that,  before  Mr.  Leavitt  had  an  opportunity  to  act  upon  this 
request,  you  telegraphed  liim  as  follows : 

"  'Reported  here  arrest  of  a  transit  passenger  bound  to  Panama  on  board 
steamer  Honduras  at  San  Juan  del  Sur.  Say  respectfully  to  Nicaraguau  minis- 
ter of  foreign  affairs  that  our  Government  never  has  consented  and  never  will 
consent  to  the  arrest  and  removal  from  an  American  vessel  in  a  foreign  port,  of 
any  passenger  in  transit,  much  less  if  offense  is  political.' 

"It  appears  that  Mr.  Leavitt  declined  to  comply  with  the  request  of  the 
minister  of  foreign  affairs,  and  followed  your  instructions  by  submitting  a 
copy  in  writing  to  the  minister. 

"From  the  brief  outline  given  by  the  consul  of  the  subsequent  proceedings,  it 
appears  that  the  government  authorities  at  San  Juan  del  Sur,  upon  the 
arrival  of  the  Honduras  at  that  port,  requested. the  captain  to  deliver  up  Mr. 
Gomez.     This  he  declined  to  do  and  set  sail  without  proper  clearance  papers. 

"The  consul  reports  that  for  these  offenses  the  captain  has  been  tried  by 
the  Nicaraguan  government  and  found  guilty,  and  although  he  has  not  been 
able  to  learn  the  nature  of  the  sentence,  he  is  convinced,  from  the  present 
attitude  of  the  government,  that  the  sentence  will  be  executed  in  case  of  the 
return  of  the  captain  or  the  vessel  within  the  jurisdiction  of  the  government 
of  Nicaragua. 

"As  the  nature  and  character  of  the  proceedings  against  the  captain  of  the 
Honduras  are  not  known  to  ihis  department,  a  full  and  detailed  report  should 
be  made  as  early  as  practicable.  It  is  clear  that  Mr.  Gomez  voluntarily  en- 
tered the  jurisdiction  of  a  country  whose  laws  he  had  violated.     •     *     * 

"It  may  be  safely  afhrmed  that  when  a  merchant  ves.sel  of  one  country 
visits  the  ports  of  another  for  the  purposes  of  trade,  it  owes  temporary  al- 
legiance and  is  amenable  to  the  jurisdiction  of  that  country,  and  is  subject  to 
the  laws  which  govern  the  port  it  visits  so  long  as  it  remains,  unless  it  is 
otherwise  provided  by  treaty. 

"Any  exemption  or  immunity  from  local  jurisdiction  must  be  derived  from 
the  consent  of  that  country.    No  such  exemption  is  made  in  the  treaty  of  com- 
merce and  navigation  concluded  between  this  country  and  Nicaragua  on  the 
21st  day  of  June,  1S67." 
Scott  Int. Law — 22 


/ti 


c-x^ 


338  RIGHTS   AND   DUTIES   OF  NATIONS   IN   TIME   OF   PEACE       (Part  1 

the  protection  of  all  princes  and  of  all  laws  whatsoever.  Everybody 
is  commissioned,  and  is  to  be  armed  against  them,  as  against  rebels 
and  traitors,  to  subdue  and  to  root  them  out. 

That  which  is  called  robbing  upon  the  highway,  the  same  being 
done  upon  the  water  is  called  piracy.  Now  robbery,  as  'tis  distin- 
guished from  thieving  or  larceny,  implies  not  only  the  actual  taking 
away  of  my  goods,  while  I  am,  as  we  say,  in  peace,  but  also  the  put- 
ting me  in  fear,  by  taking  them  away  by  force  and  arms  out  of  my 
hands,  or  in  my  sight  and  presence ;  when  this  is  done  upon  the  sea, 
without  a  lawful  commission  of  war  or  reprisals,  it  is  downright  piracy. 

And  such  was  the  generosity  of  our  ancient  English,  such  the  ab- 
horrence of  our  laws  against  pirates  and  sea-rovers,  that  if  any  of 
the  King's  subjects  robbed  or  murdered  a  foreigner  upon  our  seas  or 
within  our  ports,  though  the  foreigner  happened  to  be  of  a  nation  in 
hostility  against  the  King,  yet  if  he  had  the  King's  passport,  or  the 
Lord  Admiral's,  the  offender  was  punished,  not  as  a  felon  only,  but 
this  crime  was  made  high  treason,  in  that  great  Prince  Henry  the 
Fifth's  time;  and  not  only  himself,  but  all  his  accomplices  were  to 
suffer  as  traitors  against  the  crown  and  dignity  of  the  King."  ^^ 


LE  LOUIS.     ^'   -'  ':^ 

(High  Court  of  Admiralty,  1817.    2  Dodson,  210.)        -■''/- 

This  was  the  case  of  a  ^^rench  vessel  which  sailed  from  Martinique 
on  the  30th  of  January,  1^16,  destined  on  a  voyage  to  the  coast  of 
Africa  and  back,  and  was  captured  ten  or  twelve  leagues  to  the 
southward  of  Cape  Mesurada,  by  the  Queen  Charlotte  cutter^  on  the 
11th  of  March  in  the  same  year,  and  carried  to  Sierra  Leone. 

She  was  proceeded  against  in  the  Vice  Admiralty  Court  of  that 
colony,  and  the  information  pleaded — 1st,  that  the  seizors  were  duly 
and  legally  commissioned  to  make  captures  and  seizures.  2d,  That  the 
seizure  was  within  the  jurisdiction  of  the  court.  3d,  That  the  ves- 
sel belonged  to  French  subjects  or  others,  and  was  fitted  out,  manned 
and  navigated  for  the  purpose  of  carrying  on  the  African  slave-trade, 
after  that  trade  had  been  abolished  by  the  internal  laws  of  France, 
and  by  the  treaty  between  Great  Britain  and  France.  4th,  That  the 
vessel  had  bargained  for  twelve  slaves  at  Mesurada,  and  was  prevented 
by  the  capture  alone  from  taking  them  on  board.  5th,  That  the  brig 
being  engaged  in  the  slave-trade,  contrary  to  the  laws  of  France,  and 
the  law  of  nations,  was  liable  to  condemnation,  and  could  derive  no 

3  2  See  U.  s.  V.  Smith,  5  Wheat.  1.53.  .5  L.  Ed.  .57  (1820). 

In  speaking  of  this  case  Sir  Robert  Phillimore  (1  Int.  Law,  489,  note  d) 
says:  "The  note  (a)  to  this  page  [5  Wheat.  163]  contains  a  most  learned  and 
careful  accumulation  of  all  the  authorities  on  the  subject  of  Piracy."  Lack  of 
space  unfortunately  compels  its  omission. 

Scott  Int.Law 


>!!/. 


Ch.  4)  JURISDICTION   OF   STATES  339 

protection  from  the  French  or  any  other  flag.  6th,  That  the  crew 
of  thQ  brig  resisted  the  Queen  Charlotte,  and  piratically  killed  eight 
of  her  crew,  and  wounded  twelve  others.  7th,  That  the  vessel  being 
engaged  in  this  illegal  traffic  resisted  the  King's  duly  commissioned 
cruisers,  and  did  not  allow  of  search  until  overpowered  by  numbers. 
And  8th,  That  by  reason  of  the  circumstances  stated,  the  vessel  was 
out  of  the  protection  of  any  law,  and  liable  to  condemnation.  The 
ship  was  condemned  to  his  Majesty  in  the  Vice-Admiralty  Court  at 
Sierra  Leone,  and  from  this  decision  an  appeal  was  made  to  this 
court. 

Sir  W.  ScoTT.^^  This  ship  was  taken  o'ff  Gape  Mesurada,  on  the 
coast  of  Africa,  on  the  11th  of  March,  1816,  by  an  English  colonial 
armed  vessel,  after  a  severe  engagement,  which  followed  an  attempt 
to  escape.     *     *     * 

The  ship  seized  was^  in  appearance  and  in  fact,  a  French  ship,  ad- 
mitted both  in  the  plea  and  in  the  argument  to  be  so  unquestionably, 
owned  and  navigated  by  Frenchmen,  originally,  indeed,  built  in  Amer- 
ica, and  having  been  for  a  short  time  in  British  possession,  which  had 
ceased.  She  is  immediately  proceeded  against  in  the  Vice-Admiralty 
Court  at  Sierra  Leone  (whither  she  had  been  carried),  as  a  French  ship 
violating  French  law  by  the  intention  of  purchasing  slaves  for  the 
purpose  of  carrying  them  to  her  port  in  .Martinique.     *     *     * 

At  Sierra  Leone,  proceedings  were  commenced,  which  led  to  the  first 
condemnation  of  the  ship  and  cargo.  *  *  *  j  -^iH  suppose  the  ju- 
risdiction to  be  duly  founded,  as  far  as  the  matter  of  locality  is  con- 
cerned, and  consider  only  whether  the  sentence  can  be  sustained, 
giving  the  authority  which  pronounced  it  the  benefit  of  a  supposed  in- 
disputable jurisdiction. 

At  the  outset  of  the  proceedings,  the  seizor  describes  himself  as 
commissioned  to  make  captures  and  seizures.  It  certainly  appeared 
to  be  a  singular  commission  that  authorized  him  to  make  captures  in 
time  of  peace ;  and  it  was  therefore  not  an  unnatural  curiosity  on  the 
part  of  the  court  to  desire  to  see  it.  The  commission,  after  repeated 
requisitions,  has  been  at  last  brought  in,  at  a  time  extremely  incon- 
venient for  the  purpose  of  any  careful  examination  by  the  court,  if 
that  were  necessary.  It  may,  however,  be  sufficient  to  state  that  this 
commission  professes  to  be  issued  by  the  governor  of  Sierra  Leone,  on 
the  25th  of  January,  1816,  to  be  founded  on  the  Slave  Trade  Act,  51 
Geo.  Ill,  and  to  authorize  the  commander  to  seize  and  detain  (for  I 
do  not  find  that  the  word  capture  occurs)  all  ships  and  vessels  of- 
fending against  that  act,  or  any  other  act  abolishing  the  slave  trade ; 
and,  after  stating  these  facts,  to  observe,  that  neither  this  British  act 
of  parliament,  nor  any  commission  founded  on  it,  can  affect  any  right 
or  interest  of  foreigners,  unless  they  are  founded  upon  principles,  and 
impose  regulations,  that  are  consistent  with  the  law  of  nations.     That 

33  Parts  of  the  opinion  are  omitted. 


340  RIGHTS   AND   DUTIES   OP   NATIONS   IN   TIME   OF   PEACE       (Part  1 

is  the  only  law  which  Great  Britain  can  apply  to  them ;  and  the  general- 
ity of  any  terms  employed  in  an  act  of  parliament  must  be  narrowed 
in  construction  by  a  religious  adherence  thereto.     *     *     * 

Assuming  the  fact,  which  is  indistinctly  proved,  that  there  was 
a  demand,  and  a  resistance  producing  the  deplorable  results  here 
described,  I  think  that  the  natural  order  of  things  compels  me  to 
inquire  first,  whether  the  party  who  demanded  had  a  right  to  search ; 
for  if  not,  then  not  only  was  the  resistance  to  it  lawful,  but  likewise 
the  very  fact  on  which  the  other  ground  of  condemnation  rests  is 
totally  removed.  *  *  *  Supposing,  however,  that  it  should  ap- 
pear that  he  had  a  right  to  visit  and  search,  and  therefore  to  avail 
himself  of  all  the  information  he  so  acquired,  the  question  would  then 
be,  whether  that  information  has  established  all  the  necessary  facts? 
The  first  is,  that  this  was  a  French  ship  intentionally  employed  in  the 
slave  trade,  which,  I  have  already  intimated,  appears  to  be  sufficiently 
shown.  The  second  is,  that  such  a  trading  is  a  contravention  of  the 
French  law ;  for  it  has  been  repeatedly  admitted  that  the  court,  in  or- 
der to  support  this  sentence  of  condemnation,  must  have  the  founda- 
tion of  the  trade  being  prohibited  by  the  law  of  the  country  to  which  the 
party  belongs. 

Upon  the  first  question,  whether  the  righb  of  search  exists  in  time 
of  peace,  I  have  to  observe,  that  two  principles  of  public  law  are 
generally  recognized  as  fundamental.  One  is  the  perfect  equality 
and  entire  independence  of  all  distinct  states.  Relative  magnitude 
creates  no  distinction  of  right ;  relative  imbecility,  whether  permanent 
or  casual,  gives  no  additional  right  to  the  more  powerful  neighbor ; 
and  any  advantage  seized  upon  that  ground  is  mere  usurpation.  This  is 
the  great  foundation  of  public  law,  which  it  mainly  concerns  the 
peace  of  mankind,  both  in  their  politic  and  private  capacities,  to  pre- 
serve inviolate.  The  second  is,  that  all  nations  being  equal,  all  have 
an  equal  right  to  the  uninterrupted  use  of  the  unappropriated  parts  of 
jthe  ocean  for  their  navigation.  In^  places  where  no  local  authority  ex- 
ists, where  the  subjects  of  all  states  meet  upon  a  footing  of  entire 
equality  and  independence,  no  one  state,  or  any  one  of  its  subjects, 
has  a  right  to  assume  or  exercise  authority  over  the  subjects  of  anoth- 
er. I  can  find  no  authority  that  gives  the  right  of  interruption  to  the 
navigation  of  states  in  amity  upon  the  high  seas,  excepting  that  which 
the  rights  of  war  give  to  both  belligerents  against  neutrals.  This  right, 
incommodious  as  its  exercise  may  occasionally  be  to  those  who  are 
subjected  to  it,  has  been  fully  established  in  the  legal  practice  of  na- 
tions, having  for  its  foundation  the  necessities  of  self-defense,  in  pre- 
venting the  enemy  from  being  supplied  with  the  instruments  of  war, 
and  from  having  his  means  of  annoyance  augmented  by  the  advantages 
of  maritime  commerce.  Against  the  property  of  his  enemy  each  bel- 
ligerent has  the  extreme  rights  of  war.  Against  that  of  neutrals,  the 
friends  of  both,  each  has  the  right  of  visitation  and  search,  and  of  pur- 
suing an  inquiry  whether  they  are  employed  in  the  service  of  his  enemy, 


Ch.  4)  .  JURISDICTION   OF   STATES  341 

the  right  being  subject,  in  almost  all  cases  of  an  inquir}-  wrongfully 
pursued,  to  a  compensation  in  costs  and  damages.     *     *     ''■' 

If  it  be  asked  why  the  right  of  search  does  not  ex[st  in  time  of  peace 
as  well  as  in  war,  the  answer  is  prompt;  that  it  has  not  the  same 
foundation  on  which  alone  it  is  tolerated  in  war, — the  necessities  of 
self-defence.  They  introduced  it  in  war;  and  practice  has  established 
it.  No  such  necessities  have  introduced  it  in  time  of  peace,  and  no 
such  practice  has  established  it.  It  is  true,  that  wild  claims  (alluded 
to  in  the  argument)  have  been  occasionally  set  up  by  nations,  particu- 
larly those  of  Spain  and  Portugal,  in  the  East  and  West  Indian  seas : 
but  these  are  claims  of  a  nature  quite  foreign  to  the  present  question, 
being  claims  not  of  a  general  right  of  visitation  and  search  upon  the 
high  seas  unappropriated,  but  extravagant  claims  to  the  appropriation 
of  particular  seas,  founded  upon  some  grants  of  a  pretended  authority, 
or  upon  some  ancient  exclusive  usurpation.  Upon  a  principle  much 
more  just  in  itself  and  more  temperately  applied,  maritime  states  have 
claimed  a  right  of  visitation  and  inquiry  within  those  parts  of  the 
ocean  adjoining  to  their  shores,  which  the  common  courtesy  of  nations 
has,  for  their  common  convenience,  allowed  to  be  considered  as  parts 
of  their  dominions  for  various  domestic  purposes,  and  particularly 
for  fiscal  or  defensive  regulations  more  immediately  affecting  thei« 
safety  and  welfare.  Such  are  our  hovering  laws,  which  within  certain 
limited  distances  more  or  less  moderately  assigned,  subject  foreign 
vessels  to  such  examination.  This  has  nothing  in  common  with  a  right 
of  visitation  and  search  upon  the  unappropriated  parts  of  the  ocean. 
A  recent  Swedish  claim  of  examination  on  the  high  seas,  though  con- 
fined to  foreign  ships  bound  to  Swedish  ports,  and  accompanied  in  a 
manner  not  very  consistent  or  intelligible,  with  a  disclaimer  of  all  right 
of  visitation,  was  resisted  by  our  government  as  unlawful,  and  was 
finally  withdrawn. 

The  right  of  visitation  being  in  this  present  case  exercised  in  time 
of  peace,  the  question  arises,  how  is  it  to  be  legalized?  And  looking 
to  what  I  have  described  as  the  known  existing  law  of  nations  evi- 
denced by  all  authority  and  all  practice,  it  must  be  upon  the  ground 
that  the  caj)tured  vessel  is  to  be  taken  legally  as  a  pirate,  or  else  some 
new  ground  is  to  be  assumed  on  which  this  right  which  has  been  dis- 
tinctly admitted  not  to  exist  generally  in  time  of  peace  can  be  sup- 
ported. Wherever  it  has  existed,  it  has  existed  upon  the  ground  of  re- 
pelling injury,  and  as  a  measure  of  self-defence.  No  practice  that 
exists  in  the  world  carries  it  farther. 

It  is  perfectly  clear,  that  this  vessel  cannot  be  deemed  a  pirate  from 
any  want  of  a  national  character  legally  obtained.  *  *  *  If,  there- 
fore, the  character  of  a  pirate  can  be  impressed  upon  her,  it  must  be 
only  on  the  ground  of  her  occupation  as  a  slave  trader;  no  other  act 
of  piracy  being  imputed.  The  question  then  comes  to  this : — Can  the 
occupation  of  this  French  vessel  be  legally  deemed  a  piracy,  inferring, 
as  it  must  do,  if  it  be  so,  all  the  pains  and  penaltes  of  piracy?     *     ""■'- 


342  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

It  has  not  been  contended  in  argument,  that  the  common  case  of 
dealing  in  slaves  could  be  deemed  a  piracy  in  law.  In  all  the  fervor 
of  opinion  which  the  agitation  of  all  questions  relating  to  this  practice 
has  excited  in  the  minds  of  many  intelligent  persons  in  this  country,  no 
attempt  has  ever  been  thought  of,  at  least  with  any  visible  effect,  to 
submit  any  such  question  to  the  judgment  of  the  law  by  such  a  prosecu- 
tion of  any  form  instituted  in  any  court:  and  no  lawyer,  I  presume, 
could  be  found  hardy  enough  to  maintain,  that  an  indictment  for  piracy 
could  be  supported  by  the  mere  evidence  of  a  trading  in  slaves.  Be 
the  malignity  of  the  practice  what  it  may,  it  is  not  that  of  piracy,  in 
legal  consideration. 

Piracy  being  excluded,  the  court  has  to  look  for  some  new  and 
peculiar  ground :  but  in  the  first  place  a  new  and  very  extensive  ground 
is  offered  to  it  by  the  suggestion,  which  has  been  strongly  pressed,  that 
this  trade,  if  not  the  crime  of  piracy,  is  nevertheless  crime,  and  that 
every  nation,  and  indeed  every  individual  has  not  only  a  right,  but  a 
duty,  to  prevent  in  every  place  the  commission  of  crime.  It  is  a 
sphere  of  duty  sufficiently  large  that  is  thus  opened  out  to  communities 
and  to  their  members.  But  to  establish  the  consequence  required,  it 
is  first  necessary  to  establish  that  the  right  to  interpose  by  force  to 
prevent  the  commission  of  crime,  commences  not  upon  the  commence- 
ment of  the  overt  act,  nor  upon  the  evident  approach  towards  it,  but  on 
the  bare  surmise  grounded  on  the  mere  possibility ;  for  unless  it  goes 
that  length  it  will  not  support  the  right  of  forcible  inquiry  and  search. 
What  are  the  proximate  circumstances  which  confer  on  you  the  right 
of  intruding  yourself  into  a  foreign  ship,  over  which  you  have  no 
authority  whatever,  or  of  demanding  the  submission  of  its  crew  to 
your  inquiry,  whether  they  mean  to  deal  in  the  traffic  of  slaves,  not  in 
your  country,  but  in  one  with  which  you  have  no  connection?  Where 
is  the  law  that  has  defined  those  circumstances  and  created  that  right 
under  their  existence?  Secondly,  it  must  be  shown  that  the  act  im- 
puted to  the  parties  is  unquestionably  and  legally  criminal  by  the  uni- 
versal law  of  nations ;  for  the  right  of  search  claimed  makes  no  dis- 
tinctions, and  in  truth  can  make  none;  for  till  the  ship  is  searched  it 
cannot  be  known  whether  she  is  a  slave  trader  or  not,  and  whether  she 
belongs  to  a  nation  which  admits  the  act  to  be  criminal,  or  to  one  which 
maintains  it  to  be  simply  commercial, — and  I  say  legally  criminal,  be- 
cause neither  this  court  nor  any  other  can  carry  its  private  apprehen- 
sions, independent  of  law,  into  its  public  judgments  on  the  quality  of  ac- 
tions. It  must  conform  to  the  judgment  of  the  law  upon  that  subject; 
and  acting  as  a  court  in  the  administration  of  law,  it  cannot  attribute 
criminality  to  an  act  where  the  law  imputes  none.  It  must  look  to  the 
legal  standard  of  morality;  and  upon  a  question  of  this  nature,  that 
standard  must  be  found  in  the  law  of  nations  as  fixed  and  evidenced  by 
general  and  ancient  and  admitted  practice,  by  treaties  and  by  the 


Ch.  4)  JURISDICTION   OF   STATES  343 

general  tenor  of  the  laws  and  ordinances,  and  the  formal  transactions 
of  civilized  states ;  and  looking  to  those  authorities,  I  find  a  difficulty 
in  maintaining  that  the  traffic  is  legally  criminal.     *     *     * 

What  is  the  doctrine  of  our  courts  of  the  law  of  nations  relatively 
to  them  ?  Why,  that  their  practice  is  to  be  respected ;  that  their  slaves 
if  taken  are  to  be  restored  to  them;  and  if  not  taken  under  innocent 
mistake,  to  be  restored  with  costs  and  damages.  All  this  surely,  upon 
the  ground  that  such  conduct  on  the  part  of  any  state  is  no  departure 
from  the  law  of  nations ;  because,  if  it  were,  no  such  respect  could  be 
allowed  to  it,  upon  an  exemption  of  its  own  making;  for  no  nation 
can  privilege  itself  to  commit  a  crime  against  the  law  of  nations  by 
a  mere  "municipal  regulation  of  its  own.  And  if  our  understanding  and 
administration  of  the  law_of  nations  bCj  that  every  nation,  independently 
of  treaties,  retains  a  legal  right  to  carry  on  this  traffic,  and  that  the  trade 
carried  on  under  that  authority  is  to  be  respected  by  all  tribunals, 
foreign  as  well  as  domestic,  it  is  not  easy  to  find  any  consistent  grounds 
on  which  to  maintain  that  the  traffic,  according  to  our  views  of  that 
law,  is  criminal.     *     *     * 

It  is  next  said  that  every  country  has  a  right  to  enforce  its  own 
navigation  laws ;  and  so  it  certainly  has,  so  far  as  it  does  not  inter- 
fere with  the  rights  of  others.  It  has  a  right  to  see  that  its  own  ves- 
sels are  duly  navigated,  but  it  has  no  right  in  consequence  to  visit 
and  search  all  the  apparent  vessels  of  other  countries  on  the  high  seas, 
in  order  to  institute  an  inquiry  whether  they  are  not  in  truth  British 
vessels  violating  British  laws.  No  such  right  has  ever  been  claimed, 
nor  can  it  be  exercised  without  the  oppression  of  interrupting  and 
harassing  the  real  and  lawful  navigation  of  other  countries;  for  the 
right  of  search  when  it  exists  at  all,  is  universal,  and  will  extend  to 
vessels  of  all  countries,  whether  they  tolerate  the  slave  trade  or  not; 
and  whether  the  vessels  are  employed  in  slave  trading  or  in  any  other 
traffic.  It  is  no  objection  to  say  that  British  ships  may  thus  by  disguise 
elude  the  obligations  of  British  law.  The  answer  of  the  foreigner  is 
ready,  that  you  have  no  right  to  provide  against  that  inconvenience  by 
imposing  a  burden  upon  his  navigation.  If  even  the  question  were 
reduced  to  this,  that  either  all  British  ships  might  fraudulently  escape, 
or  all  foreign  ships  be  injuriously  harassed,  Great  Britain  could  not 
claim  the  option  to  embrace  the  latter  branch  of  the  alternative.  When 
you  complain  that  the  regulation  cannot  be  enforced  without  the  exer- 
cise of  such  a  right,  the  answer  again  is,  that  you  ought  not  to  make 
regulations  which  you  cannot  enforce  without  trespassing  on  the 
rights  of  others.  If  it  were  a  matter  by  which  your  own  safety  was 
affected,  the  necessities  of  self-defence  would  fully  justify;  but  in 
a  matter  in  which  your  own  safety  is  in  no  degree  concerned,  you 
have  no  right  to  prevent  a  suspected  injustice  towards  another,  by  com- 
mitting an  actual  injustice  of  your  own. 

The  next  argument  is,  that  the  legislature  must  have  contemplated 


344  RIGHTS  AND   DUTIES   OF  NATIONS   IN   TIME  OF  PEACE       (Part  1 

the  exercise  of  this  right  in  time  of  peace;  otherwise  they  have  left 
the  remedy  incomplete,  and  peace  in  Europe  will  be  war  in  Africa. 
The  legislature  must  be  understood  to  have  contemplated  all  that  was 
within  its  power,  and  no  more.  It  provided  for  the  existing  occa- 
sion and  left  to  future  wisdom  to  provide  for  future  times.  Nothing 
can  be  more  clear  than  that  it  was  so  understood  by  the  British  Gov- 
ernment; for  the  project  of  the  treaty  proposed  by  Great  Britain  to 
France,  in  1815,  is,  "that  permission  should  be  reciprocally  given  by 
each  nation  to  search  and  bring  in  the  ships  of  each  other ;"  and  when 
the  permission  of  neutrals  to  have  their  ships  searched  is  asked  at  the 
commencement  of  a  war,  it  may  then  be  time  enough  to  admit  that  the 
right  stands  on  exactly  the  same  footing  in  time  of  war  and  in  time 
of  peace.  The  fact  turned  out  to  be,  that  such  permission  was  ac- 
tually refused  by  France,  upon  the  express  ground  that  she  would 
not  tolerate  any  maritime  police  to  be  exercised  on  her  subjects,  but 
by  herself.  Nor  can  it  be  matter  of  just  surprise  or  resentment,  that 
that  people  should  be  willing  to*  retain,  what  every  independent  na- 
tion must  be  averse  to  part  with,  the  exclusive  right  of  executing  their 
own  laws. 

It  is  pressed  as  a  difficulty,  what  is  to  be  done,  if  a  French  ship 
laden  with  slaves  for  a  French  port  is  brought  in?  I  answer,  with- 
out hesitation,  restore  the  possession  which  has  been  unlawfully  di- 
vested— rescind  the  illegal  act  done  by  your  own  subject;  and  leave 
the  foreigner  to  the  justice  of  his  own  country.     *     *     * 

It  is  said,  and  with  just  concern,  that  if  not  permitted  in  time  of 
peace  it  will  be  extremely  difficult  to  suppress  the  traffic.  It  will  be 
so,  and  no  man  can  deny,  that  the  suppression,  however  desirable, 
and  however  sought,  is  attended  with  enormous  difficulties ;  difficulties 
which  have  baffled  the  most  zealous  endeavors  of  many  years.  To 
every  man  it  must  have  been  evident  that  without  a  general  and  sincere 
concurrence  of  all  maritime  states  in  the  principle  and  in  the  proper 
modes  of  pursuing  it,  comparatively  but  little  of  positive  good  could 
be  acquired ;  so  far  at  least,  as  the  interests  of  the  victims  of  this 
commerce  were  concerned  in  it ;  and  to  every  man  who  looks  to 
the  rival  claims  of  these  states,  to  their  established  habit  of  trades, 
to  their  real  or  pretended  wants,  to  their  different  modes  of  thinking, 
and  to  their  real  mode  of  acting  upon  this  particular  subject,  it  must 
be  equally  evident  that  such  a  concurrence  was  matter  of  very  difficult 
attainment.  But  the  difficulty  of  the  attainment  will  not  legalize  meas- 
ures that  are  otherwise  illegal.  To  press  forward  to  a  great  prin- 
ciple by  breaking  through  every  other  great  principle  that  stands  in  the 
way  of  its  establishment ;  to  force  the  way  to  the  liberation  of  Africa 
by  trampling  on  the  independence  of  other  states  in  Europe ;  in  short, 
to  procure  an  eminent  good  by  means  that  are  unlawful,  is  as  little  con- 
sonant to  private  morality  as  to  public  justice.  Obtain  the  concvu'- 
rence  of  other  nations,  if  you  can,  by  application,  by  remonstrance. 


Ch.  4)  JURISDICTION   OF   STATES  345 

by  example,  by  every  peaceable  instrument  which  man  can  employ 
to  attract  the  consent  of  man.  But  a  nation  is  not  justified  in  assuming 
rights  that  do  not^  belong  to  her,  merely  because  she  means  to  apply 
¥iennto^  laudable  purpose ;  nor  in  setting  out  upon  a  moral  crusade 
of  converting  other  nations  by  acts  of  unlawful  force.  Nor  is  it  to  be 
argued,  that  because  other  nations  approve  the  ultimate  purpose,  they 
must  therefore  submit  to  every  measure  which  any  one  state  or  its 
subjects  may  inconsiderately  adopt  for  its  attainment.  In  this  very 
case  nothing  can  be  clearer  than  that  the  only  French  law  produced  is 
in  direct  contradiction  to  such  a  notion;  because  approving  as  it 
does  (though  to  a  very  limited  extent)  the  abolition,  it  nevertheless  re- 
serves to  its  own  authorities  the  cognizance  of  each  cause  and  the 
appropriation  of  the  penalties. 

If  I  felt  it  necessary  to  press  the  consideration  further,  it  would 
be  by  stating  the  gigantic  mischiefs  which  such  a  claim  is  likely  to 
produce.  It  is  no  secret,  particularly  in  this  place,  that  the  right  of 
search  in  time  of  war,  though  unquestionable,  is  not  submitted  to 
without  complaints  loud  and  bitter,  in  spite  of  all  the  modifications 
that  can  be  applied  to  it.  If  this  right  of  war  is  imported  into  peace 
by  convention,  it  will  be  for  the  prudence  of  states  to  regulate  by  that 
convention  the  exercise  of  the  right  with  all  the  softenings  of  which 
it  is  capable.     *     *     * 

Upon  the  matter  of  costs  and  damages  that  have  been  prayed,  I 
must  observe  that  it  is  the  first  case  of  the  kind,  and  that  the  ques- 
tion itself  is  primse  impressionis,  and  that  upon  both  grounds  it  is 
not  the  inclination  of  the  court  to  inflict  such  a  censure.  If  a  second 
case  should  occur,  it  will  require  (in  my  judgment  till  corrected),  and 
undoubtedly  shall  receive,  a  different  consideration.^* 


THE  MAGELLAN  PIRATES. 

(High  Court  of  Admiralty,  1853.  1  Spinks.  81.) 
This  was  a  cause  arising  under  13  &  14  Vict.  c.  26,  in  pursuance  of 
which  the  court  was  prayed  to  determine  and  pronounce  that  certain 
persons  captured _by.  Her  Majesty's  sloop  Virago,  in  the  Straits  of 
Magellan,  were  pirates,  and  to  adjudge  the  number  of  them,  in  order 
to  the  usual  application  being  made  for  the  bounty.     *     *     * 

These  cases  have  generally  been  decided  in  a  summary  manner  on 

3*  For  other  cases  upon  the  subject  of  the  slave  trade,  see  The  Ain^die, 
1  Act.  240  (1810),  per  Sir  Wm.  Grant;  The  Fortuna.  1  Dod.  M  (1811): 
Madrazo  v.  Willes,  3  B.  &  Aid.  353  (1820)  ;  The  Antelope,  10  Wheat.  66,  6 
L.   Ed.   268    (1825). 

Particular  attention  should  be  called  to  The  Marianna  Flora,  11  Wheat.  1, 
6  L.  Kd.  405  (1826),  in  which  the  Supreme  Court  of  the  United  States,  per 
Mi-.  Justice  Story,  hekl  that  the  right  to  visit  and  search  was  essentially  a 
vbelliserent  right,  to  be  exercised  in  time  of  war,  and  that  it  did  not  exist 
in  time  of  peace,  in  the  absence  of  .special  agreement  to  that  ellect. 

See  also  Dana's  Wheatou,  notes  83   (193-195),  84   (196-200),  85   (201-203). 


346  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

the  hearing  of  the  petition;  but  in  the  present  case  the  petition  was 
opposed  by  the  Queen's  proctor,  the  Admiralty  proctor,  and  also  a 
proctor  for  the  owner  of  the  Eliza  Cornish,  who  asserted  an  interest, 
inasmuch  as,  if  the  men  who  seized  the  Eliza  Cornish  were  not  pirates, 
but  only  revolted  subjects  of  the  Chilian  government,  his  party  would 
then  have  a  claim  for  damages  against  that  government,  which,  if  the 
men  were  pirates,  could  not,  as  he  was  advised,  be  supported. 

Dr.  EusHiNGTON.^^  *  *  *  I  apprehend  that,  in  the  administra- 
tion of  our  criminal  law,  generally  speaking,  all  persons  are  held  to 
be  pirates  who  are  found  guilty  of  piratical  acts;  and  piratical  acts 
are  robbery  and  murder  upon  the  high  seas.  I  do  not  believe  that,  even 
where  human  life  was  at  stake,  our  courts  of  common  law  ever  thought 
it  necessary  to  extend  their  inquiries  further,  if  it  was  clearly  proved 
against  the  accused  that  they  had  committed  robbery  and  murder  upon 
the  high  seas.  In  that  case  they  were  adjudged  to  be  pirates,  and  suf- 
fered accordingly.  Whatever  may  have  been  the  definition  in  some  of 
the  books,  and  I  have  been  referred  by  Her  Majesty's  advocate  to  an 
American  case  (United  States  v.  Smith,  5  Wheat.  153,  5  L.  Ed.  57) 
where,  I  believe,  all  the  authorities  bearing  on  this  subject  are  col- 
lected, it  was  never,  so  far  as  I  am  able  to  find,  deemed  necessary  to 
inquire  whether  parties  so  convicted  of  these  crimes  had  intended  to 
rob  on  the  high  seas,  or  to  murder  on  the  high  seas  indiscriminately. 

Though  the  municipal  law  of  different  countries  may  and  does  differ, 
in  many  respects,  as  to  its  definition  of  piracy,  yet  I  apprehend  that  all 
nations  agree  in  this :  that  acts,  such  as  those  which  I  have  mentioned, 
when  committed  on  the  high  seas,  are  piratical  acts,  and  contrary  to  the 
law  of  nations. 

It  is  true,  that  where  the  subjects  of  one  country  may  rebel  against 
the  ruling  power,  and  commit  divers  acts  of  violence  with  regard  to 
that  ruling  power,  that  other  nations  may  not  think  fit  to  consider 
them  as  acts  of  piracy.  But,  however  this  may  be,  I  do  not  think 
it  necessary  to  follow  up  that  disquisition  on  the  present  occasion.  I 
think  it  does  not  follow  that,  because  persons  who  are  rebels  or 
insurgents  may  commit  against  the  ruling  power  of  their  own  country 
acts  of  violence,  they  may  not  be,  as  well  as  insurgents  and  rebels, 
pirates  also;  pirates  for  other  acts  committed  towards  other  persons. 
It  does  not  follow  that  rebels  or  insurgents  may  not  commit  piratical 
acts  against  the  subjects  of  other  states,  especially  if  such  acts  were  in 
no  degree  connected  with  the  insurrection  or  rebellion. 

Even  an  independent  state  may,  in  my  opinion,  be  guilty  of  piratical 
acts.  What  were  the  Barbary  pirates  of  olden  times?  What  many 
of  the  African  tribes  at  this  moment  ?  It  is,  I  believe,  notorious,  that 
tribes  now  inhabiting  the  African  coast  of  the  Mediterranean  will  send 

35  The  statement  of  facts  is  abridged  and  only  so  much  of  the  opinion  is 
given  as  relates  to  the  question  of  piracy.  That  portion  is  omitted  iu  which 
the  learned  judge  found  that  the  captors  were  entitled  to  the  bounty  provided 
)y  statute  for  the  capture  of  pirates, 


Ch.  4)  JURISDICTION   OF   STATES  347 

out  their  boats  and  capture  any  ships  becalmed  upon  their  coasts.  Are 
they  not  pirates,  because,  perhaps,  their  whole  livelihood  may  not  de- 
pend on  piratical  acts?  I  am  well  aware  that  it  has  been  said  that  a 
state  cannot  be  piratical ;  but  I  am  not  disposed  to  assent  to  such  dic- 
tum as  a  universal  proposition.     *     *     * 

Now,  I  refer  to  Russell  on  Crimes,  where  we  find  the  result  of 
many  older  authorities.  He  commences  in  these  words :  "The  of- 
fence of  piracy,  at  common  law,  consists  in  committing  those  acts  of 
robbery  and  depredation  upon  the  high  seas,  which,  if  committed  upon 
land,  would  have  amounted  to  felony  there"  (Russell  on  Crimes, 
book  ii.  ch.  8,  §  1) ;  and  in  a  subsequent  part  I  find  the  following : 
"If  a  robbery  be  committed  in  creeks,  harbors,  ports,  etc.,  in  foreign 
countries,  the  Court  of  Admiralty  indisputably  has  jurisdiction  of  it, 
and  such  offence  is  consequently  piracy"  (Id.  §  2).  There  is  a  case 
also  stated  here  which  I  think  applies :  "Where  a  prisoner  was  in- 
dicted for  stealing  three  chests  of  tea  out  of  the  Aurora,  of  London, 
on  the  high  seas,  and  it  was  proved  that  the  larceny  was  committed 
while  the  vessel  lay  off  Wampa,  in  the  river,  twenty  or  thirty  miles 
from  the  sea,  but  there  was  no  evidence  as  to  the  tide  flowing  or 
otherwise,  at  the  place  where  the  vessel  lay ;  it  was  held,  from  the 
circumstance  that  the  tea  was  stolen  on  board  the  vessel  which  had 
crossed  the  ocean,  that  there  was  sufficient  evidence  that  the  larceny 
was  committed  on  the  high  seas."    (Id.) 

Again,  it  was  decided  in  another  case,  that  where  A.,  standing  on 
the  shore  of  a  harbour,  fired  a  loaded  musket  at  a  revenue  cutter 
which  had  struck  upon  a  sand-bank  in  the  sea,  about  100  yards  from 
the  shore,  by  which  firing  a  person  was  maliciously  killed  on  board  the 
vessel,  it  was  piracy.     (Id.) 

It  appears  to  me,  therefore,'  that,  from  the  quotations  which  I  have 
just  made,  I  derive  two  advantages ;  one,  in  being  enabled  with  greater 
certainty  to  affix  a  true  meaning  to  the  statute  itself ;  the  other,  a  ref- 
erence to  what  I  must  more  particularly  consider, — the  place  where 
the  occurrence  happened. 

I  will  now  advert  to  so  much  of  the  facts  as  will  be  sufficient  to 
enable  me  to  judge  whether  the  present  claim  is  well-founded. 

It  appears  that,  towards  the  latter  end  of  1851,  there  was  an  insur- 
rection in  some  of  the  dominions  belonging  to  the  states  of  Chili.  Gen- 
eral Cruz  was  at  the  head  of  this  insurrection,  failed,  and  retired  into 
the  country.  There  was  a  Chilian  convict  settlement  at  a  place  called 
Punta  Arenas,  the  garrison  of  which  consisted  of  160  soldiers,  and 
450  male  convicts.  An  officer  in  that  garrison  raised  an  insurrection 
agaijist  the  governor,  murdered  him,  and,  in  conjunction  with  those 
who  conspired  with  him,  seized  a  British  vessel,  called  the  Eliza  Cor- 
nish, and  also  an  American  vessel  called  the  Florida.  They  murdered 
the  master  of  the  Eliza  Cornish,  and  a  Mr.  Deane,  a  passenger  and 
part  owner,  and  they  also  murdered  the  owner  of  the  Florida,  who  was 


348  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   PEACE       (Part  1 

on  board.  These  facts  coming  to  the  knowledge  of  Admiral  Thoresby, 
the  commander-in-chief  of  that  station,  he  despatched  the  Virago,  a 
British  steamer,  under  the  command  of  Captain  Houston  Stewart,  to 
tiie_  Straits  of  Magellan.  On  the  28th  January,  1852,  a  vessel,  which 
proved  to  be  the  Eliza  Cornish  was  descried  working  out  of  the 
Straits;  chase  was  made;  a  shot  fired  a,cross  her  bows  brought  her 
to;   she  was  boarded  and  seized  by  orders  of  Captain  Stewart. 

At  the  time  she  was  so  seized  she  was  in  possession  of  a  large  num- 
ber of  persons  who  had  raised  the  insurrection  at  Punta  Arenas.  There 
were  found  on  board  her  128  men,  24  women,  and  18  children ;  the 
guns  were  loaded  and  the  men  were  armed.  These  were  under  the 
command  of  a  man  named  Bruno  Brionis,  who  held  a  commission 
from  Cambiaso,  the  leader  of  the  insurrection,  and  the  instigator  of 
the  murders  and  robberies  then  committed ;  and  these  men  were  after- 
wards delivered  up  to  the  Chilian  authorities  at  Valparaiso.  Captain 
Stewart  proceeded  in  search  of  Cambiaso  and  the  other  insurgents, 
giving  that  name  to  those  who  had  left  Punta  Arenas.  He  secured  fifty- 
six  at  a  place  called  Wood's  Bay,  and  on  the  15th  February  he  dis- 
covered the  Florida  herself,  in  the  possession  of  a  large  number  of 
the  same  people.  It  was  said  that  these  insurgents  had,  whilst  at  sea, 
risen  against  Cambiaso  and  five  others,  and,  with  the  aid  of  the  Amer- 
ican master  and  crew,  brought  the  vessel  to  the  port  where  Captain 
Stewart  had  found  her. 

On  board  the  Florida  was  found  treasure  which  has  been  plundered 
from  the  Eliza  Cornish.  All  the  persons  on  board  the  Floridaj.not 
American,  were  delivered  up  to  the  Chilianv  authorities. 

As  to  the  general  character-of  these  transactions,  I  really  cannot 
bring  myself  to  entertain  a  doubt.  Even  if  I  could  be  induced  to  adopt 
the  distinction,  that  the  acts  in  question  were  the  acts  of  insurgents,  I 
should  still,  even  from  that,  adhere  to  the  opinion  that  they  were  pirati- 
cal acts ;  piratical  acts,  too,  in  my  judgment,  in  no  degree  whatsoever 
connected  with  the  insurrection  or  rebellion,  or  with  the  intention  of 
these  parties  to  go  to  any  other  part  of  the  world.  They  were  acts, 
in  one  sense,  of  wanton  cruelty,  in  the  murder  of  foreign  subjects,  and 
in  the  indiscriminate  plunder  of  their  property.  I  am  of  opinion  that 
the  persons  who  did  these  acts  were  guilty  of  piracy,  and  were  to  be 
deemed  pirates,  unless  some  of  the  other  objections  which  have  been 
urged  ought  to  prevail. 

It  has  been  said  that  these  acts  were  not  committed  on  the  high  seas, 
and,  therefore,  the  murder  and  robbery  not  properly  or  legally  pirati- 
cal. This  objection  well  deserves  consideration;  for  it  is  true  that 
murder  and  robbery,  done  upon  land,  and  not  by  persons  notoriously 
pirates,  would  not  be  piracy.  Here,  as  I  understand  the  facts,  the  Eliza 
Cornish  and  the  Florida  were  seized  in  port,  and  the  murders  com- 
mitted in  port  or  committed  on  land,  on  the  persons  taken  out  of  the 
vessels.     Had  the  vessels  been  recaptured  whilst  lying  in  port,  there 


Ch.  4)  JURISDICTION   OF   STATES  349 

might  be  raised  an  argument,  though  I  do  not  say  it  would  prevail,  that 
these  offences,  legally  speaking,  would  not  be  classed  as  acts  of  piracy. 
I  say  it  might  be  so ;  though  I  am  not  disposed  to  hold  that  the  doctrine 
that  the  port,  forming  a  part  of  the  dominions  of  the  state  to  which  it 
belongs,  ought  in  all  cases  to  divest  robbery  and  murder  done  in  such 
port  of  the  character  of  piracy.  I  am  much  more  strongly  inclined  to 
hold  this  from  the  facts  quoted  from  Russell;  and  I  am  still  more  in- 
clined to  come  to  that  conclusion  for  another  reason,  because  the  stat- 
ute expressly  contemplates  acts  done  on  shore,  for  these  are  the  words : 
"Shall,  after  the  said  first  day  of  June,  attack  or  be  engaged  with  any 
persons  alleged  to  be  pirates,  afloat  or  ashore,"  manifestly  intending  to 
take  cognizance  of  piratical  offences,  or  offences  of  that  class,  when 
they  were  committed  on  shore.  It  would  quite  fail  if  it  were  not  so ; 
because  we  all  know  that  pirates  are  not  perpetually  at  sea,  but  under 
the  necessity  of  going  on  shore  at  various  places ;  and,  of  course,  they 
must  be  followed  and  taken  there,  or  not  at  all. 

In  this  case,  however,  the  ships  were  carried  away  and  navigated  by 
the  very  same  persons  who  originally  seized  them.  Now,  I  consider  the 
possession  at  sea  to  have  been  a  piratical  possession ;  to  have  been  a 
continuation  of  the  murder  and  robbery ;  and  the  carrying  away  the 
ships  on  the  high  seas,  to  have  been  piratical  acts,  quite  independently 
of  the  original  seizure.     *     *     * 


II.  Merchant  Vessels 
REGINA  V.  LESLEY. 

(Court  of  Crown  Cases  Reserved,  18G0.    Bell's  Crown  Cases  Reserved,  220.) 

The  following  case  was  reserved  by  Watson,  B. : 

The  grisoner  was  the  master  of  the  British  ship  LouisaJBraginton, 
and  the  charge  against  him  was  for  the  false  imprisonment  of  several 
Chilian  subjects  from  Valparaiso  to  Liverpool. 

These  persons,  having  been  ordered  to  be  banished  from  Chili  by 
the  government  of  that  country,  were  brought  by  force,  guarded  by 
soldiers  of  that  state,  on  board  the  ship,  whence  the  prisoner,  und_er 
a  contract  (a  copy  accompanies  this  case)  with  the  Chilian  government, 
earned  and  conveyed  these  Chilian  subjects  to  Liverpool. 

The  evidence,  and  an  abstract  of  the  indictment,  accompanies  this 
case.  On  this  evidence  I  directed  a  verdict  of  guilty,  reserving  the 
question  of  law,  whether  or  not  the  defendant  was  liable  to  an  in- 
dictment in  this  country  under  the  circumstances,  for  the  opinion  of 
this  court. 

W.  H.  Watson.3« 

The  judgment  of  the  court  was  delivered,  on  the  28th  Januarv, 
1860,  by 

3"  The  abstract  of  indictment  is  omitted. 


350  RIGHTS  AND   DUTIES  OF  NATIONS   IN   TIME   OF  PEACE       (Part  1 

ErlE,  C.  J.  In  this  case  the  question  is,  whether  a  conviction  for 
false  imprisonment  can  be  sustained  upon  the  following  facts. 

The  prosecutor  and  others,  being  in  Chili,  and  subjects  of  that  state, 
were  banished  by  the  government  from  Chili  to  England. 

The  defendant,  being  master  of  an  English  merchant  vessel  lying 
in  the  territorial  waters  of  Chili,  near  Valparaiso,  contracted  with  that 
government  to  take  the  prosecutor  and  his  companions  from  Valpa- 
raiso to  Liverpool,  and  they  were  accordingly  brought  on  board  the 
defendant's  vessel  by  the  officers  of  the  government,  and  carried  to 
Liverpool  by  the  defendant  under  his  contract.  Then,  can  the  con- 
viction be  sustained  for  that  which  was  done  within  the  Chilian  wa- 
ters?   We  answer  no. 

We  assume  that  in  Chili  the  act  of  the  government  toward  its 
subjects  was  lawful;  and  although  an  English  ship  in  some  respects 
carries  with  her  the  laws  of  her  country  in  the  territorial  waters  of 
a  foreign  state,  yet  in  other  respects  she  is  subject  to  the  laws  of 
that  state  as  to  acts  done  to  the  subjects  thereof. 

We  assume  that  the  government  could  justify  all  that  it  did  within 
its  own  territory,  and  we  think  it  follows  that  the  defendant  can 
justify  all  that  he  did  there  as  agent  for  the  government  and  under 
its  authority.         .--^ —n 

In  Dobree  v.  'i^apiep,  2  Bing.  N.  C.  781,  the  defendant,  on  behalf 
of  the  Queen  of  Portugal,  seized  the  plaintiff's  vessel  for  violating  a 
blockade  of  a  Portuguese  port  in  time  of  war.  The  plaintiff  brought 
trespass ;  and  judgment  was  for  the  defendant,  because  the  Queen 
of  Portugal,  in  her  own  territory,  had  a  right  to  seize  the  vessel  and 
to  employ  whom  she  would  to  make  the  seizure ;  and  therefore  the 
defendant,  though  an  Englishman  seizing  an  English  vessel,  could 
justify  the  act  under  the  employment  of  the  Queen. 

We  think  that  the  acts  of  the  defendant  in  Chili  become  lawful 
on  the  same  principle,  and  that  there  is  therefore  no  ground  for  the 
conviction. 

The  further  question  remains,  Can  the  conviction  be  sustained  for 
that  which  was  done  out  of  the  Chilian  territory?  and  we  think  it 
can. 

It  is  clear  that  an  English  ship  on  the  high  sea,  out  of  any  for- 
eign territory,  is  subject  to  the  laws  of  England ;  and  persons,  whether 
foreign  or  English,  on  board  such  ship,  are  as  much  amenable  to 
English  law  as  they  would  be  on  English  soil. 

In  Regina  v,  Sattler,  Dears.  &  Bell's  C.  C.  525,  this  principle  was 
acted  on,  so  as  to  make  the  prisoner,  a  foreigner,  responsible  for  mur- 
der on  board  an  English  ship  at  sea.  The  same  principle  has  been 
laid  down  by  foreign  writers  on  international  law  among  which  it  is 
enough  to  cite  Ortolan,  "Sur  la  Diplomatic  de  la  Mer,"  liv.  2,  cap.  13. 
The  Merchant  Shipping  Act,  17  &  18  Vict.  c.  104,  §  267,  makes  the 
master  and  seamen  of  a  British  ship  responsible  for  all  offences  against 
property  or  person  committed  on  the  sea  out  of  her  Majesty's  do- 


Ch.  4)  JURISDICTION    OF    STATES  351 

minions  as  if  they  had  been  committed  within  the  jurisdiction  of  the 
admiralty  of  England. 

Such  being  the  law,  if  the  act  of  the  defendant  amounted  to  a  false 
imprisonment,  he  was  liable  to  be  convicted.  Now,  a^_Jhe_  con- 
tract^of  the  defendant  was  to  receive  the  prosecutor  and  the  others  as 
prisoners  on  board  his  ship  and  to  take  them,  without  their  consent, 
over  the  sea  to  England,  although  he  was  justified  in  first  receiving 
them  in  Chili,  j^et  that  justification  ceased  when  he  passed  the  line 
of  Chilian  jurisdiction  and  after  that  it  was  a  wrong  which  was  inten- 
tionally planned  and  executed  in  pursuance  of  the  contract,  amounting 
in  law  to  a  false  imprisonment. 

It  may  be  that  transportation  to  England  is  lawful  by  the  law  of 
Chili,  and  that  a  Chilian  ship  might  so  lawfully  transport  Chilian 
subjects;  but  for  an  English  ship,  the  laws  of  Chili,  out  of  the  state, 
are  powerless,  and  the  lawfulness  of  the  acts  must  be  tried  by  Eng- 
lish law. 

For  these  reasons,  to  the  extent  above  mentioned,  the  conviction 
is  affirmed, 


REGINA  v.  ANDERSON. 

(Court  for  Crown  Cases  Reserved,  1868.    11  Cox,  C.  C.  198.) 

Case  reserved  by  Byles,  J.,  at  the  October  Sessions  of  the  Central 
Criminal  Court,  1868,  for  the  opinion  of  this  court. 

James  Anderson,  an  American  citizen,  was  indicted  for  murder  on 
board  a__vessel,  belonging  to  the  port  of  Yarmouth  in  Nova  Scotia. 
She  was  registered  in  London,  and  was  sailing  under  the  British 
flag.__ 

TCt  the  time  of  the  offence  committed  the  vessel  was  in  the  river 
Garonne,  within  the  boundaries  of  the  French  empire,  on  her  way  up 
to  Bordeaux,  which  city  is  by  the  course  of  the  river  about  ninety 
miles  from  the  open  sea.  The  vessel  had  proceeded  about  half-way 
up  the  river,  and  was  at  the  time  of  the  ofifence  about  three  hundred 
yards  from  the  nearest  shore,  the  river  at  that  place  being  about  half 
a  mile  wide. 

-The  Jide_flows  up  to  the  place  and  beyond  it. 

No  evidence  was  given  whether  the  place  was  or  was  not  within  the 
limitk  of  the  port  of  Bordeaux. 

It  was  objected  for  the  prisoner  that  the  offence  having  been  com- 
mitted within  the  empire  of  France,  the  vessel  being  a  colonial  vessel, 
and  the  prisoner  an  American  citizen,  the  court  had  no  jurisdiction  to 
try  him. 

I  expressed  an  opinion  unfavorable  to  the  objection,  but  agreed  to 
grant  a  case  for  the  opinion  of  this  court. 

The  prisoner  was  convicted  of  manslaughter. 

J.  Barnard  Byles. 

f 


352  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

BoviLL,  C.  J.^^  There  is  no  doubt  that  the  place  where  the  offence 
was  committed  was  within  the  territory  of  France,  and  that  the  pris- 
oner was  therefore  subject  to  the  laws  of  France,  which  the  local 
authorities  of  that  realm  might  have  enforced  if  so  minded ;  but  at  the 
same  time,  in  point  of  law,  the  offence  was  also  committed  within  Brit- 
ish territory,  for  the  prisoner  was  a  seaman  on  board  a  merchant  vessel, 
which,  as  to  her  crew  and  master,  must  be  taken  to  have  been  at  the 
time  under  the  protection  of  the  British  flag,  and,  therefore,  also 
amenable  to  the  provisions  of  the  British  law.  It  is  true  that  the  pris- 
oner was  an  American  citizen,  but  he  had  with  his  own  consent  embark- 
ed on  board  a  British  vessel  as  one  of  the  crew.  Although  the  prisoner 
was  subject  to  the  American  jurisprudence  as  an  American  citizen,  and 
to  the  law  of  France  as  having  committed  an  offence  within  the  terri- 
tory of  France,  yet  he  must  also  be  considered  as  subject  to  the  juris- 
diction of  British  law,  which  extends  to  the  protection  of  British 
vessels,  though  in  ports  belonging  to  another  country.  From  the  pas- 
sage in  the  treatise  of  Ortolan,  already  quoted,  it  appears  that,  with 
regard  to  offences  comimitted  on  board  of  foreign  vessels  within  the 
French  territory,  the  French  nation  will  not  assert  their  police  law 
unless  invoked  by  the  master  of  the  vessel,  or  unless  the  oft'ence  leads 
to  a  disturbance  of  the  peace  of  the  port ;  and  several  instances  where 
that  course  was  adopted  are  mentioned.  Among  these  are  two  cases 
where  offences  were  committed  on  board  American  vessels — one  at 
the  port  of  Antwerp,  and  the  other  at  Marseilles — and  where,  on  the 
local  authorities  interfering,  the  American  court  claimed  exclusive 
jurisdiction.  As  far  as  America  herself  is  concerned,  it  is  clear  that 
she,  by  the  statutes  of  the  23d  of  March,  1825  (4  Stat.  115),  has  made 
regulations  for  persons  on  board  her  vessels  in  foreign  parts,  and  we 
have  adopted  the  same  course  of 'legislation.  Our  vessels  must  be  sub- 
ject to  the  laws  of  the  nation  at  any  of  whose  ports  they  may  be,  and 
also  to  the  laws  of  our  country,  to  which  they  belong.  As  to  our  ves- 
sels when  going  to  foreign  parts  we  have  the  right,  if  we  are  not  bound, 
to  make  regulations.  America  has  set  us  a  strong  example  that  we  have 
the  right  to  do  so.  In  the  present  case,  if  it  were  necessary  to  decide  the 
question  on  the  17  &  18  Vict.  c.  104,  I  should  have  no  hesitation  in  say- 
ing that  we  now  not  only  legislate  for  British  subjects  on  board  of  Brit- 
ish vessels,  but  also  for  all  those  who  form  the  crews  thereof,  and  that 
there  is  no  difficulty  in  so  construing  the  statute ;  but  it  is  not  neces- 
sary to  decide  that  point  now.  Independently  of  that  statute,  the 
general  law  is  sufficient  to  determine  this  case.  Here  the  offence  was 
committed  on  board  a  British  vessel  by  one  of  the  crew,  and  it  makes 
no  diff'erence  whether  the  vessel  was  within  a  foreign  port  or  not.  If 
the  offence  had  been  committed  on  the  high  seas  it  is  clear  that  it 
would  have  been  within  the  jurisdiction  of  the  admiralty,  and  the  Cen- 
tral Criminal  Court  has  now  the  same  extent  of  jurisdiction.     Does 

*^  Tbe  concurring  opinions  of  Chauuell,  B.,  and  Lusb,  J.,  are  omitted. 


Ch.  4)  JURISDICTION   OP  STATES  353 

it  make  any  difference  because  the  vessel  was  in  the  river  Garonne 
half-way  between  the  sea  and  the  head  of  the  river?  The  place  where 
the  offence  was  committed  was  in  a  navigable  part  of  the  river  below 
bridge,  and  where  the  tide  ebbs  and  flows,  and  great  ships  do  lie  and 
hover.  An  offence  committed  at  such  a  place,  according  to  the  author- 
ities, is  within  the  admiralty  jurisdiction,  and  it  is  the  same  as  if  the 
offence  had  been  committed  on  the  high  seas.  On  the  whole  I  come 
to  the  conclusion  that  the  prisoner  was  amenable  to  the  British  law, 
and  that  the  conviction  was  right. 

BylES,  J.  I  am  of  the  same  opinion.  I  adhere  to  the  opinion  that 
I  expressed  at  the  trial.  A  British  ship  is,  for  the  purposes  of  this 
question,  like  a  floating  island ;  and,  when  a  crime  is  committed  on 
board  a  British  ship,  it  is  within  the  jurisdiction  of  the  Admiralty 
Court,  and  therefore  of  the  Central  Criminal  Court,  and  the  offender 
is  as  amenable  to  British  law  as  if  he  had  stood  on  the  Isle  of  Wight 
and  committed  the  crime.  Two  English  and  two  American  cases  de- 
cide that  a  crime  comm.itted  on  board  a  British  vessel  in  a  river  like 
the  one  in  question,  where  there  is  the  flux  and  reflux  of  the  tide,  and 
wherein  great  ships  do  hover,  is  within  the  jurisdiction  of  the  Ad- 
miralty 'Court ;  and  that  is  also  the  opinion  expressed  in  Kent's  Com- 
mentaries. The  only  effect  of  the  ship  beings  within  the  .ambit  xaf 
French  territory  is  that  there  might  have  been  concurrent  jurisdiction 
had  the  French  claimed  it.  I  give  no  opinion  on  the  question  whether 
the  case  comes  within  the  enactment  of  the  Merchant  Shipping  Act. 
Reg.  V.  Lopez,  7  Cox,  C.  C.  431 ;  Reg.  v.  Armstrong,  13  Cox,  C.  C.  184. 

Blackburn,  J.  I  am  of  the  same  opinion.  It  is  not  necessary  to 
decide  whether  the  case  comes  within  the  Merchant  Shipping  Act. 
If  the  offence  could  have  been  properly  tried  in  any  English  court, 
then  the  Central  Criminal  Court  had  jurisdiction  to  try  it.  It  has 
been  decided  by  a  number  of  cases  that  a  ship  on  the  high  seas,  car-, 
rj-ing  a  national_  flag,  is  part  of  the  territory  of  that  nation  whose 
flag  she  carries ;  and  all  persons  on  board  her  are  to  be  considered  as 
subject  to  the  jurisdiction  of  the  laws  of  that  nation,  as  much  so  as 
if  they  had  been  on  land  within  that  territory.  From  the  earliest 
times  it  has  been  held  that  the  maritime  courts  have  jurisdiction  over 
offences  committed  on  the  high  seas  where  great  ships  go,  which  are, 
as  it  were,  common  ground  to  all  nations,  and  that  the  jurisdiction 
extends  over  ships  in  rivers  or  places  where  great  ships  go  as  far 
as  the  tide  extends.  In  this  case  the  vessel  was  within  French  terri- 
tory and  subject  to  the  local  jurisdiction,  if  the  French  authorities 
had  chosen  to  exercise  it.  Our  decisions  establish  that  the  admiralty 
jurisdiction  extends  at  common  law  over  British  ships  on  the  high 
seas,  or  in  waters  where  great  ships  go  as  far  as  the  tide  ebbs  and 
flows.  The  cases  Rex  v.  Allen  and  Rex  v.  Jemot  are  most  closely  in 
point,  and  establish  that  offences  committed  on  board  British  ships  in 
Scott  Int. Law — 23 


354  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Parti 

places  where  great  ships  go  are  within  the  jurisdiction  of  the  Court 
of  Admiralty,  and  consequently  of  the  Central  Criminal  Court.  In 
America  it  appears,  from  the  case  of  United  States  v.  Wiltberger,  5 
Wheat.  76,  5  L.  Ed.  37,  that  it  was  held  that  the  United  States  had  no 
jurisdiction  in  the  case  of  the  crime  of  manslaughter  committed  on 
board  a  United  States  vessel  in  the  river  Tigris  in  China ;  but  as  I 
understand  the  American  cases  of  Thomas  v.  Lane,  Fed.  Cas.  No.  13,- 
902,  and  United  States  v.  Coombs-  12  Pet.  72,  9  L.  Ed.  1004,  a  rule 
more  in  conformity  with  the  English  decisions  was  laid  down ;  and 
upon  those  authorities  I  take  it  that  the  American  courts  would  agree 
with  us.  It  is  clear  therefore,  that  a  person  on  board  a  British  ship  is 
amenable  to  the  British  law  just  as  much  as  a  British  person  on  board 
an  American  ship  is  subject  to  the  American  law.  My  view  is,  that 
when  a  person  is  on  board  a  vessel  sailing  under  the  British  flag,  and 
commits  a  crime,  that  nation  has  a  right  to  punish  him  for  the  crime 
committed  by  him;  and  clearly  the  same  doctrine  extends  to  those 
who  are  members  of  the  crew  of  the  vessel. 
Conviction  affirmed.^  ^ 

38  In  U.  S.  Y.  Bennett,  3  Hughes.  466,  Fed.  Cas.  No.  14,574  (1877).  the  crime 
was  committed  on  the  Garonne  near  tlie  city  of  Bordeaux,  and  the  decision 
was  the  same.    See,  also,  Reg.  v.  Lopez  and  Reg.  v.  Sattler,  D.  «&  B.  525  (1858). 

In  1856  a  case  arose  in  reference  to  seamen,  supposed  not  to  be  citizens,  of) 
the  United  States,  who,  having  committed  a  mutiny  at  sea,  on  board  of  the 
American  vessel  Atalanta,  were  brought  back  in  the  vessel  to  Marseilles,  where, 
on  the  application  of  the  consul  of  the  United  States,  they  were  received  and 
imprisoned  by  the  local  authorities  on  shore.  { 

Sis   of  them  were  afterwards  on  his  application  taken  from  prison  and,' 
placed  on  board  the  Atalanta  for  conveyance  to  the  United  States  under  charge 
of  crime.     Then,  with  notice  to  the  consul,  but  in  spite  of  his  remonstrance,', 
the  local  authorities  went  on  board  of  the  Atalanta,  forcibly  resumed  posses- 
sion of  the  prisoners,  and  replaced  them  in  confinement  on  shore.    Mr.  Mason, 
in  a  note  of  the  27th  of  June,  1856,  says :  > 

"It  is  the  first  instance,  in  which  a  vessel  wearing  the  flag  of  the  United  ; 
States,  lying  in  a  French  port,  or  a  French  ship  lying  in  a  port  of  the  United 
States,  has,  since  the  date  of  the  treaty,  been  visited  by  police  officers  without 
the  authority  of  the  consul."    MS.  Department  of  State.     The  correspondence; 
between  the  two  governments  having  been  submitted  to  the  Attorney  General! 
of  the  United  States,  he  concurred  in  opinion  with   the  American  Minister.f 
"that  the  local  authority  of  Marseilles  exceeded  its  lawful  power  in  substance,! 
as  well  as  in  form,  and  that  there  could  be  no  conflict  on  the  part  of  France  '\ 
with   other  powers  on  account  of  the  nationality  of  the  prisoners,  for  they 
were  always  in  the  constructive,  if  not  in  the  actual,  custody  of  the  United ! 
States."     8  Op.  Attys.  Gen.  73.     Freeman  Snow,  Cases  and  Opinions,  pp.  184,/ 
185   (1893).  •  S 

In  the  Case  of  John  Anderson,  1879,  Great  Britain  admitted  the  contention  ' 
of  the  United  States,  that  a  crime  committed  upon  an  American  merchant 
Vessel  while  sailing  on  the  high  seas  was  properly  triable  in  the  United  States, ,' 
and  the  action  of  the  Indian  authorities  in  trying  Anderson  in  Calcutta,  in  i 
which  port  the  vessel  subsequently  arrived,  was  disavowed  by  the  British/ 
Government.    1  Wharton's  Digest,  123-125.  ^ 

Scott  Int.Law 


Ch.  4)  JURISDICTION  OF   STATES  355 

MARSHALL  v.  MURGATROYD. 

(Queen's  Bench,  1870.     L.  R.    [1870-1871]   6  Q.  B.  31.) 

Case  stated  by  Justices  of  the  West  Riding  of  Yorkshire  under  20  & 
21  Vict.  c.  43. 

An  information  was  preferred  by  the  respondent  against  the  appel- 
lant for  that  she  had,  since  the  passing  of  8  &  9  Vict.  c.  101,  and  within 
twelve  calendar  months  from  the  date  of  the  application  by  the  respond- 
ent, been  delivered  of  a  bastard  child,  of  which  she  alleged  the  appellant 
to  be  the  father.  On  the  hearing  the  justices  made  an  order  for  the 
maintenance  of  the  child.  l 

The  facts  proved  before  the  justices  were  as  follows: 

The  respondent  was  delivered  of  a  bastard  child  on  board  the  ship 
Pajmyra,  whilst  sailing  from  New  York  to  Liverpool ;  that  ship  be- 
longed to  the  Cunard  line  of  steamers.  *  *  *  j^  ^^s  admitted  by 
the  appellant's  attorney  that  the  Cunard  line  was  an  English  line  of 
steamers.     *     *     * 

Blackburn,  J.'^  Our  judgment  must  be  for  the  respondent.  It 
has  been  argued  that  the  provisions  of  7  &  8  Vict.  c.  101,  under  which 
this  order  is  made,  extend  only  to  England  and  Wales,  that  the  child  of 
which  the  respondent  was  delivered  having  been  born  on  the  high  seas 
was  born  out  of  England,  and  that  therefore  the  order  is  invalid.  I 
think  that  the  evidence  set  out  in  the  case  is  sufficient  to  shew  that  the 
Cunard  steamer  is  an  English  ship.  It  is  part  of  the  common  law  and 
of  the  law  of  nations,  that  a  ship  on  the  high  seas  is  a  part  of  the  ter- 
ritory of  that  state  to  which  she  belongs ;  and  therefore  an  English  ship 
is  deemed  to  be  part  of  England.  The  child  having  been  born  on  board 
an  English  ship,  the  statute  applies.  The  justices  were  therefore  right 
in  making  the  order. 

Lush,  J.,  concurred.*'' 


Jhe  statement  of  facts  is  abridged. 
40  In  Crapo  v.  Kelly,  16  Wall.  010,  623,  21  L.  Ed.  430  (1872),  the  court  said: 
"1^Ee~Tiu«Uuu  Lheii  arises,  while  thus  upon  the  high  seas  was  she  in  law 
within  the  territory  of  Massachusetts.  If  she  was,  the  insolvent  title  will  pre- 
vail. ^ 
"It  is  not  perceived  that  this  vessel  can  be  said  to  be  upon  United  States 
territory,  or  within  L'nited  States  jurisdiction,  or  subject  to  the  laws  of  the 
United  States  regulating  the  transfer  of  property,  if  such  laws  there  may  be. 
Except  for  the  purposes  and  to  the  extent  to  which  these  attributes  have  been 
transferred  to  the  United  States,  the  state  of  Massachusetts  possesses  all  the 
rights  and  powers  of  a  sovereign  State.  By  her  own  consent,  as  found  in 
article  1  of  the  Constitution  of  the  United  States,  she  has  abandoned  her 
right  to  wage  war,  to  coin  money,  to  make  treaties,  and  to  do  certain  other 
acts  therein  mentioned.  None  of  the  subjects  there  mentioned  allect  the  ques- 
tion before  us.  The  third  article  of  that  instrument  extends  the  judicial 
power  of  the  United  States  'to  all  cases  of  admiralty  and  maritime  jurisdic- 
tion.' This  gives  the  power  to  the  courts  of  the  United  States  to  try  those 
cases  in  which  are  involved  questions  arising  out  of  maritime  affairs,  and  of, 
crimes  connnitted  on  the  high  seas.  To  bring  a  transaction  within  that 
jurisdiction,  it  must  be  not  simply  a  transaction  which  occurred  at  sea,  as  the 


356  RIGHTS  AND   DUTIES   OF  NATIONS   IN   TIME   OP   PEACE       (Part  1 

making  of  a  contract,  but  one  in  which  the  question  itself  is  of  a  maritimvs 
nature,  or  arises  out  of  a  maritime  affair,  or  it  must  be  a  tort  or  crime  com- 
mitted on  the  high  seas.  Over  such  cases  the  United  States  courts  have  juris- 
diction ;  that  is,  they  are  authorized  to  hear  and  determine  them.  No  rule 
of  property  is  thereby  established.  This  remains  as  it  would  have  been  had  no 
such  authority  been  given  to  the  United  States  court. 

"To  Congress  is  also  given  power  'to  define  and  punish  piracies  and  felonies 
committed  on  the  high  seas,  and  offences  against  the  law  of  nations.'  It  will 
scarcely  be  claimed  that  the  title  to  property  could  be  affected  by  this  provi- 
sion. Nor  does  the  circumstance  that  the  Arctic  sailed  under  the  flag  of  the 
United  States  and  was  entitled  to  the  protection  of  that  government  against 
insult  or  injury  from  the  citizens  or  ships  of  other  nations,  touch  the  present 
point.  None  of  these  instances  are  like  that  of  the  passage  of  a  bankrupt 
law  by  the  United  States,  which  acts  directly  upon  the  propei-ty  of  all  the 
citizens  of  all  the  states,  wherever  it  may  be.  Had  the  claim  of  either  party 
to  this  vessel  bejn  based  upon  a  proceeding  under  that  statute,  the  title 
would  have  been  complete,  if  the  property  had  been  within  the  territory  or 
jurisdiction  of  any  of  the  states  of  the  Union. 

"It  is  not  perceived,  therefore,  that  the  relation  of  Massachusetts  to  the 
Union  has  any  effect  upon  the  title  to  this  vessel.  It  stands  as  if  that  state 
were  an  independent  sovereign  state,  unconnected  with  the  other  states  of  the 
Union.  The  question  is  the  same  as  if  this  assignment  had  been  made  in 
London  by  a  British  insolvent  court,  adjudicating  upon  the  afCairs  of  a 
British  subject. 

"We  are  of  the  opinion,  for  the  purpose  we  are  considering,  that  the  ship 
Arctic  was  a  portion  of  the  territory  of  Massachusetts,  and  the  assignment  by 
the  insolvent  court  of  that  state  passed  the  title  to  her,  in  the  same  manner 
and  with  the  like  effect  as  if  she  had  been  physically  within  the  bounds  of 
that  state  when  the  assignment  was  executed." 

In  McDonald  v.  Mallory,  77  N.  Y.  546,  553,  556,  33  Am.  Rep.  664  (1879) 
it  is  said :  "In  respect  to  crimes  committed  on  the  high  seas,  the  power  to 
provide  for  their  punishment  has  been  delegated  to  the  Federal  Government, 
and  for  that  reason  State  laws  cannot  be  applicable  to  them ;  but  I  cannot 
escape  the  conclusion  that  under  the  principle  of  the  case^  of  Crapo  v.  Kelly 
civil  rights  of  action,  for  matters  occurring  at  sea  on  board  of  a  vessel  belong- 
ing to  one  of  the  States  of  the  Union  must  depend  upon  the  laws  of  that  State, 
unless  they  arise  out  of  some  matter  over  which  jurisdiction  has  been  vested 
in  and  exercised  by  the  government  of  the  United  States,  or  over  which  the 
State  has  transferred  its  rights  of  sovereignty  to  the  United  States ;  and  that 
to  this  extent  the  vessel  must  be  regarded  as  part  of  the  territory  of  the  State, 
while  in  respect  to  her  relations  with  foreign  governments,  crimes  committed 
on  board  of  her,  and  all  other  matters  over  which  jurisdiction  is  vested  in  the 
Federal  Government,  she  must  be  regarded  as  part  of  the  territory  of  the 
United  States  and  subject  to  the  laws  thereof."  *  *  *  "There  is  nothing  in 
the  nature  of  this  action  which  renders  it  exclusively  the  subject  of  Federal 
cognizance.  The  jurisdiction  of  the  States  and  of  the  United  States  in  the 
matter  of  personal  torts  committed  at  sea,  such  as  assaults  by  a  master  on 
his  crew,  injuries  to  passengers,  and  the  like,  are  concurrent,  though  remedies 
by  proceedings  in  rem  can  be  administered  only  by  the  courts  of  admiralty  of 
the  United  States.  The  field  of  legislation  in  respect  to  cases  like  the  present 
one  has  not  been  occupied  by  the  general  government  and  is  therefore  open  to 
the  States.  Steamboat  Co.  v.  Chase,  16  Wall.  522,  530,  5.33  [21  L.  Ed.  369 
(1ST2)].  Indeed  the  United  States  Court  of  Admiralty  would  have  no  jurisdic- 
tion in  such  a  case.  Steamboat  Co.  v.  Chase,  16  Wall.  522,  530,  533  [21  L.  Ed. 
369  (1872)] ;  Sherlock  v.  Ailing,  93  U.  S.  99  [23  L.  Ed.  819  (1876)],  and  there 
is  no  gi-eater  objection  to  extending  the  operation  of  a  statute  of  this  descrip- 
tion to  a  vessel  at  sea  than  there  was  to  giving  similar  operation  to  a  State 
insolvent  law." 

Dr.  Wharton  (Commentaries  on  American  Law,  1884,  §  308)  says:  "A  ship 
at  sea  is,  by  the  prevalent  opinion,  a  part  of  the  territory  of  the  State  whose 
flag  she  bears,  and  is  consequently  go'serned  by  the  laws  of  such  State.  As 
between  the  several  States  in  the  American  Union,  a  ship  is  governed  by  the 
law  of  the  State  in  which  she  is  registered.    A  ship  in  port,  however,  is  gov- 


t^\ 


Ch.  4)  JURISDICTION   OF   STATES  357 

■    WILSON  V.  McNAMEE. 

/ 

(Supreme  Court  of  the  United  States,  1880.    102  U.  S.  572,  26  L.  Ed.  234.) 

Error  to  the  Court  of  Appeals  of  the  State  of  New  York. 

McNamee  tendered  his  services  as  a  licensed  Sandy  Hook  pilot  to 
,  conduct  the  schooner  E.  E.  Racket  by  way  of  Sandy  Hook  to  the 
port  of  New  York.  He  was  the  first  that  offered  his  services.  The 
tender  was  made  at  sea,  about  fifty  miles  from  that  port.  The  vessel 
was  from  a  foreign  port,  sailing  under  register,  and  drew  nine  feet  of 
water.  The  master  refused  to  accept  the  services,  and  came  into  port 
without  a  pilot.  McNamee  demanded  the  compensation  allowed  by 
the  local  state  law,  and,  payment  having  been  refused,  brought  this 
suit  and  recovered  judgment  in  the  District  Court  of  the  city  of  New 
York  for  the  First  Judicial  Circuit  against  Wilson,  the  consignee  of 
the  schooner.  The  case  was  thereupon  removed  by  appeal  to  the 
proper  Court  of  Common  Pleas,  and  subsequently  to  the  Court  of 
Appeals  of  the  state.  Those  courts  successively  affirmed  the  judg- 
ment.   Wilson  sued  out  this  writ. 

The  lav^s  of  New  York  on  the  subject  of  pilotage  contain,  among 
other  provisions,  the  following: 

"All  masters  of  foreign  vessels,  and  vessels  from  a  foreign  port, 
and  all  vessels  sailing  under  register,  bound  to  or  from  the  port  of 

erned  by  port  law,  tliough  this  does  not  apply  to  foreign  vessels  of  war."  For 
ships  of  war,  see  The  'Exchange  v.  McFaddon,  7  cranch,  lj.6,  3  L.  Ed.  287  (1812). 
In  The  Lamington  .[D.  C]  87  Fed.  752  (1898),  Thomas,  J.,  said:  "The  first 
qu(?stion  is  this:  Did  the  accident  occur  on  British  territory?  Every  vessel 
outside  the  jurisdiction  of  a  foreign  power  is  a  detached,  floating  portion  of  the 
territory  of  the  countiT  whose  flag  it  flies,  and  under  whose  laws  it  is  register- 
ed. The  Scotia.  14  Wall.  170,  184  [20  L.  Ed.  822  (1871)1  :  Crapo  v.  Kellv,  16 
Wall.  610,  624  [21  L.  Ed.  4.30  (1872)];  Wilson  v.  McNamee,  102  U.  S.*572, 
574  [26  L.  Ed.  234  (1880)]  :  In  re  Moncan  (C.  C.)  14  Fed.  44  [18S2]  •  In  re 
Ah  Sing  [C.  C]  13  Fed.  286  (1882)  ;  U.  S.  v.  Bennett,  3  Hughes,  466,  Fed. 
Cas.  No.  14,574  [1877]  ;  McDonald  v.  Mallory,  77  N.  Y.  546.  5.-)l,  5.53  [33  Am 
Rep.  664  (1879)1;  Wheat.  Int.  Law  (Dana's  ed.)  §  106;  3  Whart.  Int.  Law 
Dig.  228;  Whart.  Conf.  Laws.  §356;  1  Kent,  Comm.  26;  Vatt.  Law  Nat 
bk.  1,  ch.  19,  §  216;  1  Calvo,  552;  Bluntschli,  §  317;  1  Martens  (Frencti 
Trans,  of  Leo),  406;  Seagrove  v.  Parks,  1  Q.  B.  Div.  551  [1891].  The  authori- 
ties noted  so  perfectly  maintain  the  doctrine  stated  that  quotation,  amplifica- 
tion or  illustration  is  unnecessary'.  The  broad  and  fundamental  principle  is 
that  the  sovereignty  of  a  nation  extends  to  its  private  ships,  and  this  dominion 
is  never  shared  by  a  foreign  power  where  the  internal  affairs  of  the  vessel 
are  alone  involved,  and  where  it  is  not  within  the  territorial  domain  of  such 
power.  It  results  from  the  foregoing:  (1)  That  tortious  acts  are  governed 
by  the  law  of  the  place  where  they  are  done.  (2)  That  a  foreign  tribunal  will 
never  afford  reparation  for  such  acts,  unless  they  are  unjustified  both  by  the 
law  of  the  place  where  they  occurred  and  by  the  law  of  tiie  forum.  (3)  That 
a  contract  creating  the  relation  of  master  and  servant,  made  in  a  country  for 
a  service  to  be  rendered  in  such  country,  imposes  only  such  obligations,'  and 
confers  only  such  rights,  as  the  terms  of  the  contract  stipulate,  and  the  laws 
of  such  country  imply.  (4)  That  the  vessels  of  such  country  are,  even  upon 
the  high  seas,  a  detached,  floating  portion  of  its  territory,  and  exclusively 
within  the  influence  of  its  laws,  so  far  as  the  internal  economy  of  the  vessel 
is   concerned." 


358  EIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

New  York,  by  the  way  of  Sandy  Hook,  shall  take  a  licensed  pilot; 
or,  in  case  of  refusal  to  take  such  pilot,  shall  himself,  owners  or  con- 
signees, pay  the  said  pilotage,  as  if  one  had  been  employed;  and  such 
pilotage  shall  be  paid  to  the  pilot  first  speaking  or  offering  his  services 
as  pilot  to  such  vessel." 

The  fourth  section  of  the  act  of  Congress  approved  August  7,  1789 
(1  Stat.  54  [Comp.  St.  §  7981]),  declares  that— 

"All  pilots  in  the  bays,  inlets,  rivers,  harbors,  and  ports  of  the 
United  States  shall  continue  to  be  regulated  in  conformity  with  the 
existing  laws  of  the  states  respectively  wherein  such  pilots  may  be,  or 
with  such  laws  as  the  states  may  respectively  hereafter  enact  for  the 
purpose,  until  further  legislative  provision  shall  be  made  by  Con- 
gress." 

This  enactment  will  also  be  found  in  section  4235  of  the  Revised 
Statutes. 

The  proviso  to  the  second  section  of  an  Act  of  Congress  of  Feb. 
25,  1867  (14  Stat.  412),  is  in  these  words: 

"Nothing  in  this  act  contained,  or  in  the  act  of  which  it  is  amenda- 
tory, shall  be  construed  to  annul  or  affect  any  regulations  established 
by  the  existing  laws  of  any  state  requiring  vessels  entering  or  leaving 
a  port  in  such  state  to  take  a  pilot  duly  authorized  by  the  laws  of  such 
state,  or  of  a  state  situate  upon  the  waters  of  the  same  port." 

Mr.  James  S.  Stearns,  for  the  plaintiff  in  error. 

The  court  declined  hearing  counsel  for  the  defendant  in  error. 

Mr.  Justice  Swayne,  after  stating  the  case,  delivered  the  opinion  of 
the  court. 

The  only  point  argued  here  was  the  validity  of  the  pilot  law  of  New 
York  with  reference  to  the  Constitution  of  the  United  States. 

At  the  close  of  the  opening  argument  of  the  learned  counsel  for  the 
plaintiff  in  error,  we  announced  that  the  affirmative  of  the  question 
thus  presented  was  so  well  settled  by  the  repeated  adjudications  of 
this  court,  that  we  had  no  desire  to  hear  the  counsel  for  the  defendant 
in  error  upon  the  subject. 

Thereafter,  the  counsel,  who  had  been  heard  submitted  a  memoran- 
dum, in  which  he  called  our  attention  particularly  "to  the  tenth  point 
of  the  brief  of  the  plaintiff  in  error,  namely,  that  the  tender  took  place 
outside  of  the  jurisdiction  of  the  state  of  New  York."  He  added: 
"This  question  has  never  yet  been  passed  upon  by  this  court  in  either 
of  the  other  pilot  cases." 

Our  opinion  will  be  confined  to  that  subject. 

There  are  several  answers  to  the  suggestion. 

1.  The  objection  does  not  appear  to  have  been  taken  in  the  circuit 
court,  and  cannot,  therefore,  be  considered  here.  Edwards  v.  Elliott, 
21  Wall.  532,  22  L.  Ed.  487. 

2.  A  vessel  at  sea  is  considered  as  a  part  of  the  territory  to  which  it 
belongs  when  at  home.     It  carries  with  it  the  local  legal  rig^hts  and_ 
legal  juiisdiction  of  such  locality.    All  on  board  are  endowed  and  sub- 


Ch.  4)  JURISDICTION   OF   STATES  359 

ject  accordingly.  The  pilot,  upon  his  boat,  had  the  same  authority 
from  the  lawj  of  New  York  to  tender  and  demand  employment,  and 
the  same  legal  consequences,  under  the  circumstances,  followed  the 
refusal  of  the  master  as  if  both  vessels  had  then  been  infra  fauces 
terrse,  where  the  municipal  jurisdiction  of  the  state  was  complete  and 
exclusive.  The  jurisdiction  of  the  local  sovereign  over  a  vessel,  and 
over  those  belonging  to  her,  in  the  home  port  and  abroad  on  the  sea,  is, 
according  to  the  law  of  nations,  the  same.  Dana's  Wheaton,  p.  169, 
§  106;  1  Kent,  Com.  27;  Vattel,  bk.  1,  c.  19,  §  216;. 2  Rutherford's 
Inst.  bk.  2,  c.  9,  §§  8,  19. 

The  principle  here  recognized  is,  of  course,  subject  to  the  para- 
mount authority  of  the  Constitution  and  laws  of  the  United  States 
over  the  foreign  and  interstate  commerce  of  the  country,  and  the 
commercial  marine  of  the  country  engaged  in  such  commerce,  and 
subject  also  to  the  like  power  of  Congress  "to  define  and  punish  pira- 
cies and  felonies  committed  on  the  high  seas  and  offences  against  the 
law  of  nations."     See  Ex  parte  McNiel,  13  Wall.  236,  20  L.  Ed.  624. 

Speaking  of  the  universal  law  of  reason,  justice,  and  conscience,  of 
which  the  law  of  nations  is  necessarily  a  part,  Cicero  said :  "Nor  is  it 
one  thing  at  Rome  and  another  at  Athens,  one  now  and  another  in 
future,  but  among  all  nations  it  is,  and  in  all  time  will  be,  eternally 
and  immutably  the  same."    Lactantius,  Inst.  Div.  bk.  7,  c.  8. 

3.  Conceding  that  the  pilot  laws  of  the  several  states  are  regula- 
tions of  commerce,  Mr.  Justice  Story  said :  "They  have  been  adopted 
by  Congress,  and  without  question  are  controllable  by  it."  2  Story, 
Const.  §  1071. 

Mr.  Chief  Justice  Marshall,  in  Gibbons  v.  Ogden,  said:  "When  the 
government  of  the  Union  was  brought  into  existence,  it  found  a  sys- 
tem for  the  regulation  of  pilots  in  force  in  every  state.  The  act 
which  has  been  mentioned  adopts  this  system,  and  gives  it  the  same 
validity  as  if  its  provisions  had  been  specially  made  by  Congress." 
9  Wheat.  1,  207,  6  L.  Ed.  23.  The  long-continued  silence  of  Con- 
gress, with  its  plenary  power,  in  the  presence  of  such  legislation  by 
the  states  concerned,  is  itself  an  implied  ratification  and  ado-ption,  and 
is  equivalent  in  its  consequences  to  an  express  declaration  to  that 
_effect.    Atkins  V.  Fiber  Disintegrating  Co.,"  18  Wall.  272,  21  L.  Ed.  841. 

The  several  acts  of  Congress  bearing  on  the  subject  are  fully  re- 
ferred to  in  Ex  parte  McNiel,  supra.  In  that,  and  in  the  earlier  and 
more  elaborate  case  of  Cooley  v.  Board  of  Wardens  of  Port  of  Phila- 
delphia, 12  How.  299,  13  L.  Ed.  996,  this  subject,  in  all  its  aspects, 
was  so  fully  considered  that  further  remarks  on  the  present  occasion 
are  deemed  unnecessary. 

Judgment  affirmed.*^ 

*i  In  One  Hundred  and  Ninety-Four  Shawls,  1  Abb.  Adm.  317,  Fed.  Cas.  No, 
10,521  (1S4S),  it  was  held,  according  to  the  headnote.  that: 

'"It  rests  in  the  discretion  of  a  court  of  admiralty,  whose  aid  is  invoked  to 


360  RIGHTS  AND   DUTIES  OF   NATIONS   IN  TIME  OF  PEACE       (Part  1 


UNITED  STATES  v.  RODGERS. 

(Supreme  Court  of  the  United  States,  1893.     150  U.  S.  249,  14  Sup.  Ct.  109, 

37  L.  Ed.  1071.) 

See  ante,  p.  222,  for  a  report  of  the  case. 

the  settlement  of  a  controversy  between  foreigners,  to  hear  and  determine  it, 
or  to  remit  the  parties  to  their  home  forum. 

"There  is  no  authority  of  weight  which  imposes  on  the  courts  of  our  own 
country  the  necessity  of  determining  controversies  between  foreigners  resi- 
dent abroad,  either  in  common-law  proceedings,  transitory  in  their  nature,  or 
in  maritime  suits  prosecuted  in  rem. 

"As  a  general  rule,  where  the  only  question  in  a  salvage  suit  is  as  to  the 
rate  of  reward,  and  the  salved  property  is  within  the  jurisdiction  of  the 
court,  a  court  of  admiralty,  in  this  country,  will  entertain  the  suit,  notwith- 
standing that  all  the  parties  are  foreigners. 

"It  seejns  that  when,  in  a  salvage  suit  between  foreigners,  the  answer 
charges  the  libelant  with  wanton  misconduct  in  obtaining  possession  of  the 
property,  and  prays  the  privilege  to  contest  the  claim  of  the  libelant  before 
the  courts  of  their  common  country,  the  case  should  be  dismissed  to  the  home 
forum.     *     *     • " 

In  The  Belgenland,  114  U.  S.  355.  5  Sup.  Ct.  860,  29  L.  Ed.  152  (1885),  it 
was  held,  according  to  the  headuote,  that: 

"A  collision  on  the  high  seas  between  vessels  of  different  nationalities  is 
prima  facie  a  proper  subject  of  inquiry  in  any  court  of  admiralty  which  first 
obtains  jurisdiction. 

"The  courts  of  the  United  States  in  admiralty  may,  in  their  discretion,  take 
jurisdiction  over  a  collision  on  the  high  seas  betrween  two  foreign  ves- 
sels.    *     *     * 

"When  a  controversy  in  admiralty  between  foreign  vessels  in  the  courts  of 
the  United  States  arises  under  the  common  law  of  nations,  the  court  below 
should  take  jurisdiction,  unless  special  grounds  are  shown  why  it  should  not 
do  so.     *     *     * 

"In  a  proceeding  in  admiralty  against  one  foreign  vessel  for  collision  with 
another  foreign  vessel  on  the  high  seas,  the  general  maritime  law,  as  under- 
stood and  administered  in  the  courts  of  the  country  in  which  the  litigation 
is  prosecuted,  is  the  law  governing  the  case;  except  (1)  that  persons  on 
either  ship  will  not  be  open  to  blame  for  following  the  sailing  regulations 
and  rules  of  navigation  prescribed  by  their  own  government  for  their  direc- 
tion on  the  high  seas;  and  (2)  that  if  the  maritime  law,  as  administered  by 
both  nations  to  which  the  respective  ships  belong,  be  the  same  in  both,  in  re- 
spect to  any  matter  of  liability  or  obligation,  such  law,  if  shown  to  the  court, 
should  be  followed,  although  different  from  the  maritime  law  of  the  country 
of  the  forum." 

See,  also,  The  Svea  and  the  Seine,  Reichsgericht,  74  Decisions  of  the 
Reichsgericht  in  Civil  Cases,  46  (1910). 


Ch.  4)  JURISDICTION   OF   STATES  361 

III.  Municipal  Seizure  beyond  the  THREEr_MlL£-  Limit  *' 

CHURCH  V.  HUBBART.  >     '  ^ ' 

(Supreme  Court  of  the  United  States,  1804,    2~Cranch,  187,  2  L.  Ed.  249.) 

Error  from  the  Circuit  Court  for  the  District  of  Massachusetts,  in 
an  action  on  the  _casej  uj)on  two  ppHcies  of  insurance,  whereby  John 
Barker  Church,  Jr.,  caused  to  be  insured  $20,000  upon  the  cargo  of  the 
brigantine  Aurora,  Nathaniel  Shaler,  master,  at  and  from  New  York 
_to_one  or  two  Portuguese  ports  on  the  coast  of  Brazil,  and  at  and 
from  thence  back  to  New  York. 

.At  the  foot  of  one  of  the  policies  was  the  following  clause:  "The 
insurers  are  not  liable_fpr  seizure  by  the  Portuguese  for  illicit  trade;" 
and  in  the  body  of  the  other  was  inserted  the  following:  "N.  B. — The 
insurers  do  not  take_  the  risk  of  illicit  trade  with  the  Portu- 
guese."    *     *     * 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. *^  If,  in  this 
case,  the  court  had  been  of  opinion,  that  the  circuit  court  had  erred 
in  its  construction  of  the  policies,  which  constitute  the  ground  of 
action;  that  is,  if  we  had  conceived,  that  the  defence  set  up  would 
have  been  insufficient,  admitting  it  to  have  been  clearly  made  out  in 
point  of  fact,  we  should  have  deemed  it  right  to  have  declared  that 
opinion,  although  the  case  might  have  gone  off  on  other  points ;  because 
it  is  desirable  to  terminate  every  cause,  upon  its  real  merits,  if  those 
merits  are  fairly  before  the  court,  and  to  put  an  end  to  litigation, 
where  it  is  in  the  power  of  the  court  to  do  so.  But  no  error  is  per- 
ceived in  the  opinion  given  on  the  construction  of  the  policies.  If 
the  proof  is  sufficient  to  show  that  the  loss  of  the  vessel  and  cargo^ 
was  occasioned  by  attempting  an  illicit  trade  with  the  Portuguese ;  that 
an  offence  was  actually  committed  against  the  laws  of  that  nation,  and 
that  they  were  condemned  by  the  government  on  that  account,  the 
case_  comes  fairly  within  the  exception  of  the  policies,  and  the  risk 
was  one  not  intended  to  be  insured  against. 

The  words  of  the  exception  in  the  first  policy  are,  "the  insurers  are 
not  liable  for  seizure  by  the  Portuguese  for  illicit  trade."  In  the  sec- 
ond policy  the  words  are,  "the  insurers  do  not  take  the  risk  of  illicit 
trade  with  the  Portuguese."  The  counsel  on  both  sides  insist  that 
these  words  ought  to  receive  the  same  construction,  and  that  each 
exception  is  substantially  the  same.  The  court  is  of  the  same  opinion. 
The  words  themselves  are  not  essentially  variant  from  each  other,  and 
no  reason  is  perceived,  for  supposing  any  intention  in  the  contracting 
parties  to  vary  the  risk. 

*2  On  this  section,  see  an  elaborate  and  carefully  prepared  memorandum  by 
Lester  H.  Woolsey,  Esq.,  then  of  the  Solicitor's  Office,  and  later  Solicitor  for 
the  Department  of  State,  in  Foreign  Relations  of  the  United  States,  1289-1297 
(1912). 

*3  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


362  RIGHTS   AND   DUTIES   OP   NATIONS   IN   TIME   OF   PEACE       (Part  1 

For  the  plaintiff,  it  is  cpntended,  that  the  terms  used  require  an 
actual  trafific  between  the  vessel  and  inhabitants,  and  a  seizure  in  con- 
sequence of  that  traffic,  or  at  least,  that  the  vessel  should  have  been 
brought  into  port,  in  order  to  constitute  a  case  which  comes  within  the 
exception  of  the  policy.  But  such  does  not  seem  to  be  the  necessary 
import  of  the  words.  The  more  enlarged  and  liberal  construction 
given  to  them  by  the  defendants,  is  certainly  warranted  by  common 
usage;  and  wherever  words  admit  of  a  more  extensive  or  more  re- 
stricted signification,  they  must  be  taken  in  that  sense  which  is  re- 
quired by  the  subject-matter,  and  which  will  best  effectuate  what  it  is 
reasonable  to  suppose  was  the  real  intention  of  the  parties. 

In  this  case,  the  unlawfulness  of  the  voyage  was  perfectly  under- 
stood by  both  parties.  That  the  crown  of  Portugal  excluded,  with  the 
most  jealous  watchfulness,  the  commercial  intercourse  of  foreigners 
with  their  colonies,  was,  probably,  a  fact  of  as  much  notoriety  as  that 
foreigners  had  devised  means  to  elude  this  watchfulness,  and  to  carry 
on  a  gainful  but  very  hazardous  trade  with  those  colonies.  If  the  at- 
tempt should  succeed,  it  would  be  very  profitable,  but  the  risk  attend- 
ing it  was  necessarily  great.  It  was  this  risk  which  the  underwriters, 
on  a  fair  construction  of  their  words,  did  not  mean  to  take  upon  them- 
selves. "They  are  not  liable,"  they  say,  "for  seizure  by  the  Portu- 
guese for  illicit  trade."  "They  do  not  take  the  risk  of  illicit  trade 
with  the  Portuguese ;"  now,  this  illicit  trade  was  the  sole  and  avowed 
object  of  the  voyage,  and  the  vessel  was  engaged  in  it,  from  -the  time 
of  her  leaving  the  port  of  New  York.  The  risk  of  this  illicit  trade 
is  separated  from  the  various  other  perils  to  which  vessels  are  exposed 
at  sea,  and  excluded  from  the  policy.  Whenever  the  risk  commences, 
the  exception  commences  also,  for  it  is  apparent  that  the  underwriters 
meant  to  take  upon  themselves  no  portion  of  that  hazard  which  was 
occasioned  by  the  unlawfulness  of  the  voyage. 

If  it  could  have  been  presumed  by  the  parties  to  this  contract,  that 
the  laws  of  Portugal,  prohibiting  commercial  intercourse  between  their 
colonies  and  foreign  merchants,  permitted  vessels  to  enter  their  ports, 
or  to  hover  off  their  coasts  for  the  purposes  of  trade,  with  impunity, 
and  only  subjected  them  to  seizure  and  condemnation  after  the  very 
act  had  been  committed,  or  if  such  are  really  their  laws,  then,  indeed, 
the  exception  might  reasonably  be  supposed  to  have  been  intended 
to  be  as  limited  in  its  construction,  as  is  contended  for  by  the  plaintiff. 
If  the  danger  did  not  commence,  until  the  vessel  was  in  port,  or  until 
/  the  act  of  bargain  and  sale,  without  a  permit  from  the  governor,  had 
been  committed,  then  it  would  be  reasonable  to  consider  the  exception 
as  only  contemplating  that  event.  But  this  presumption  is  too  ex- 
travagant to  have  been  made.  If,  indeed,  the  fact  itself  should  be 
so,  then  there  is  an  end  of  presumption,  and  the  contract  will  be  ex- 
pounded by  the  law,  but  as  a  general  principle,  the  nation  which 
prohibits  commercial  intercourse  with  its  colonies,  must  be  supposed 
to  adopt  measures  to  make  that  prohibition  effectual.     They  must, 


Ch.4) 


JURISDICTION   OF   STATES 


363 


therefore,  be  supposed  to  seize  vessels  coming  into  their  harbors,  or 
hovering  on  their  coasts,  in  a  condition  to  trade,  and  to  be  afterwards 
governed  in  their  proceedings  with  respect  to  those  vessels,  by  the 
circumstances  which  shall  appear  in  evidence.  That  the  officers  of 
that  nation  are  induced  occasionally  to  dispense  with  their  laws,  does 
not  alter  them,  or  legalize  the  trade  they  prohibit.  As  they  may  be 
executed,  at  the  will  of  the  governor,  there  is  always  danger  that  they 
will  be  Executed,  and  that  danger  the  insurers  have  not  chosen  to  take 
upon  themselves. 

That  the  law  of  nations  prohibits  the  exercise  of  any  act  of  author- 
ity over  a  vessel  in  the  situation  of  the  Aurora,  and  that  this  seizure 
is,  on  that  account,  a  mere  marine  trespass,  not  within  the  exception, 
cannot  be  admitted.  To  reason  from  the  extent  of  protection  a  nation 
will  afford  to  foreigners,  to  the  extent  of  the  means  it  may  use  for 
its  own  security,  does  not  seem  to  be  perfectly  correct.  It  is  opposed 
by  principles  which  are  universally  acknowledged.  The  authority  of 
a  nation,  within  its  own  territory,  is  absolute  and  exclusive.  The 
"seizure  of  a  vessel,  within  the  range  of  its  cannon,  by  a  foreign  force, 
is  an  invasion  of  that  territory,  and  is  a  hostile  act  which  it  is  its  duty 
to  repel.  But  its  power  to  secure  itself  from  injury  may  certainly.be 
exercised  beyond  the  limits  of  its  territory.  Upon  this  principle,  the 
right  "of  a  belligerent  to  search  a  neutral  vessel  on  the  high  seas,  for 
contraband  of  war,  is  universally  admitted,  because  the  belligerent  has 
a  right  to  prevent  the  injury  done  to  himself,  by  the  assistance  in- 
tended for  his  enemy:  so  too,  a  nation  has  a  right  to  prohibit  any 
commerce  with  its  colonies.  Any  attempt  to  violate  the  laws  made  to 
protect  this  right,  is  an  injury  to  itself,  which  it  may  prevent,  and  it 
has  a  right  to  use  the  means  necessary  for  its  prevention.  These 
means  do  not  appear  to  be  limited  within  any  certain  marked  bound- 
aries, which  remain  the  same,  at  all  times  and  in  all  situations.  If 
they  are  such  as  unnecessarily  to  vex  and  harass  foreign  lawful  com- 
merce, foreign  nations  will  resist  their  exercise.  If  they  are  such  as 
are  reasonable  and  necessary  to  secure  their  laws  from  violation,  they 
will  be  submitted  to. 

In  different  seas,  and  on  different  coasts,  a  wider  or  more  con- 
tracted range,  in  which  to  exercise  the  vigilance  of  the  government, 
will  be  assented  to.  Thus,  in  the  channel,  where  a  very  great  part  of 
the  commerce  to  and  from  all  the  north  of  Europe,  passes  through  a 
very  narrow  sea,  the  seizure  of  vessels  on  suspicion  of  attempting  an 
illicit  trade,  must  necessarily  be  restricted  to  very  narrow  limits;  but 
on  the  coast  of  South  America,  seldom  frequented  by  vessels,  but  for 
the  purpose  of  illicit  trade,  the  vigilance  of  the  government  may  be 
extended  somewhat  farther ;  and  foreign  nations  submit  to  such  reg- 
ulations as  are  reasonable  in  themselves,  and  are  really  necessary  to 
secure  that  monopoly  of  colonial  commerce,  which  is  claimed  by  all 
nations  holding  distant  possessions. 

If  this  right  be  extended  too  far,  the  exercise  of  it  will  be  resisted. 


\)0 


(J^' 


h  '^ 


364  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

It  has  occasioned  long  and  frequent  contests,  which  have  sometimes 
ended  in  open  war.  The  EngHsh,  it  will  be  well  recollected,  com- 
plained of  the  right  claimed  by  Spain  to  search  their  vessels  on  the 
high  seas,  which  was  carried  so  far,  that  the  guarda  costas  of  that 
nation  seized  vessels  not  in  the  neighborhood  of  their  coasts.  This 
practice  was  the  subject  of  long  and  fruitless  negotiations,  and  at 
length,  of  open  war.  The  right  of  the  Spaniards  was  supposed  to  be 
exercised  unreasonably  and  vexatiously,  but  it  never  was  contended, 
that  it  could  only  be  exercised  within  the  range  of  the  cannon  from 
their  batteries.  Indeed,  the  right  given  to  our  own  revenue  cutters, 
to  visit  vessels  four  leagues  from  our  coast,  is  a  declaration  that,  in  the 
opinion  of  the  American  government,  no  such  principle  as  that  con- 
tended for  has  a  real  existence.  Nothing,  then,  is  to  be  drawn  from 
the  laws  or  usages  of  nations,  which  gives  to  this  part  of  the  contract 
before  the  court,  the  very  limited  construction  which  the  plaintiff  in- 
sists on,  or  which  proves  that  the  seizure  of  the  Aurora,  by  the  Portu- 
guese governor,  was  an  act  of  lawless  violence. 

The  argument  that  such  act  would  be  within  the  policy,  and  not 
within  the  exception,  is  admitted  to  be  well  founded.  That  the  ex- 
clusion from  the  insurance  of  "the  risk  of  illicit  trade  with  the  Portu- 
guese," is  an  exclusion  only  of  that  risk,  to  which  such  trade  is  by 
law  exposed,  will  be  readily  conceded.  It  is  unquestionably  limited 
and  restrained  by  the  terms  "illicit  trade."  No  seizure,  not  justifiable 
under  the  laws  and  regulations  established  by  the  crown  of  Portugal, 
for  the  restriction  of  foreign  co'mmerce  with  its  dependencies,  can 
come  within  this  part  of  the  contract,  and  every  seizure  which  is  jus- 
tifiable by  those  laws  and  regulations,  must  be  deemed  within  it. 

To  prove  that  the  Aurora,  and  her  cargo,  was  sequestered  at  Para, 
in  conformity  with  the  laws  of  Portugal,  two  edicts  and  the  judgment 
of  sequestration  have  been  produced  by  the  defendants  in  the  circuit 
court.  These  documents  were  objected  to,  on  the  principle,  that  they 
were  not  properly  authenticated,  but  the  objection  was  overruled,  and 
the  judges  permitted  them  to  go  to  the  jury.     *     *     * 

The  judgment  must  be  reversed  with  costs,  and  the  cause  remanded, 
to  be  again  tried  in  the  circuit  court,  with  instructions  not  to  permit 
the  copies  of  the  edicts  of  Portugal  and  the  sentence  in  the  proceed- 
ings mentioned  to  go  to  the  jury,  unless  they  be  authenticated  accord- 
ing to  law.** 

4*  Mr.  Dana,  in  speaking  of  this  decision  (Dana's  Wheaton,  p.  259,  note), 
says,  as  to  ttie  assei'tion  that  the  seizure  of  a  vessel  four  leagues  from  the 
coast  does  not  render  the  seizure  invalid :  "This  remark  must  now  be  treated 
as  an  unwarranted  admissioii.  *  *  *  It  may  be  said  that  the  principle  is 
settled,  that  municipal  seizures  cannot  be  made,  for  any  purpose,  beyond 
territorial  waters.  It  is  also  settled,  that  the  limit  of  these  waters  is,  in 
the  absence  of  treaty,  the  marine  league  or  the  cannon-shot.  It  cannot  now 
be  successfully  maintained,  either  that  municipal  visits  and  search  may  be 
made  beyond  the  territorial  waters  for  special  purposes,  or  that  there  are 
different  bounds  of  that  territory  for  different  objects.  ♦  *  *  In  the  earlier 
cases,  the  courts  were  not  strict  as  to  standards  of  distance,  where  no  foreign 


Ch.  4)  JURISDICTION  OF   STATES  3G5 

HUDSON  and  SMITH  v.  GUESTIER. 
(Supreme  Court  of  the  United  States,  1810.    6  Cranch,  281,  3  L.  Ed.  224.) 

Error  to  the  Circuit  Court  for  the  District  of  Maryland,  in  an  action 
of  trover,  for  coffee  and  logwood,  the  cargo  of  the  brig  S_ea_FlPwer, 
which  had  been  captured  by  the  French,  for  trading  to  the  revolted 
ports  of  the  island  of  Hispaniola,  contrary  to  the  ordinances  of  France, 
and  carried  into  the  Spanish  port  of  Baracoa,  but  condemned^  by  a 
French  tribunal,  at  Guadaloupe,  sold  for  the  benefit  of  the  captorSj_and 
purchased  by  the  defendant  Guestier.     *     *     * 

The  plaintiffs  took  a  bill  of  exceptions  to  the  opinion  of  the  court, 
who  directed  the  jury  "that  if  they  find  from  the  evidence  produced, 
that  the  brig  Sea  Flo\ver_had  traded  with  the  insurgents  at  Portau 
Prince,  in  the  island  of  St.  D'omingo,  and  had  there  purchased  a  cargo 
of  coffee  and  logwood,  and  having  cleared  at  the  said  port,  and  coming 
from  the  same,  was  captured  by  a  French.  pjriv:ateer„  duly  commission- 
ed as  such,  withiiTstxIeagues  of  the  island  of  St.  Heneague,  a  depend- 
ency of  St.  Domingo,  for  a  breach  of  said  municipal  regulations,  that 
in  such  case,  the  capture  of  the  Sea  Flower  was  legal,  although  such 
capture  was  made  at  the  distance  of  six  leagues  from  the  said  island 
of  St.  Domingo,  or  St.  Heneague,  its  dependency,  and  beyond  the  ter- 
ritorial limits  or  jurisdiction  of  said  island,  and  that  the  said  capture, 
possession,  subsequent  condemnation  and  sale  of  the  said  Sea  Flower, 
with  her  cargo,  divested  the  said  cargo  out  of  the  plaintiffs,  and  the 
property  therein  became  vested  in  the  purchaser." 

Harper,  for  the  plaintiffs  in  error.  The  main  question  in  this  case 
is,  whether  the  French  tribunal  at  Guadaloupe  had  jurisdiction  of  a 
seizure,  under  the  municipal  laws  of  St,  Domingo,  of  a  vessel  seized 
more  than  two  leagues  distant  from"  the  coast.     *     *     * 

P.  B.  Key  and  Martin,  contra.    A  nation  has  a  right  to  use  all  the 

powers  intervened  in  the  causes.  In  later  times,  it  is  safe  to  infer  that  judi- 
cial as  well  as  political  tribunals  will  insist  ou  a  line  of  marine  territorial  jur- 
isdiction for  the  exercise  of  force  on  foreign  vessels  in  time  of  peace  for  all 
purposes  alike." 

There  still  stands  upon  the  statute  book  of  the  United  States  a  law  passed 
in  1799  (Comp.  St.  §  5510)  authorizing  thein  revenue  officers  to  stop  and 
visit  foreign  vessels  four  leagues  from  the  coast.  The  British  "Hovering  Act," 
passed  in  1734,  and  which  doubtless  suggested  the  American  act,  contained  a 
similar  provision.  But  this,  says  Mr.  Boyd  (Boyd's  AVheaton,  p.  241),  has 
long  since  been  repealed.  "The  present  customs  legislation  makes  a  distinc- 
tion as  regards  the  extent  of  jurisdiction  claimed  for  revenue  purposes,  be- 
tween ships  belonging  to  British  subjects  and  ships  belonging  to  foreigners." 
There  is  no  longer  any  authority  under  English  laws  to  visit  a  foreign  vessel 
beyond  the  three-mile   limit.     See   Custom^  Consolidations  Act.   187G,   §  134. 

See  further,  on  this  subject,  the  case  of  Rose  v.  Himely.  4  Cranch,  241.  2 
L.  Ed.  608  (1808),  in  which  the  Supreme  Court  of  the  United  States  held 
that  a  seizure,  under  customs*  regulations,  of  a  foreign  vessel  beyond  the 
territorial  waters  of  a  state,  was  not  valid.  See,  also,  the  case  of  Hudson  v. 
Guestier,  6  Cranch,  281,  3  L.  Ed.  224  (1810)  ;  Freeman  Snow's  Cases  and 
Opinions  on  International  Law,  194-195,  note   (1893). 


366  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

means  necessary  to  enforce  obedience  to  its  municipal  regulations  and 
laws.  It  has  a  right  to  enforce  its  municipal  laws  of  trade,  beyond  its 
territorial  jurisdiction.  This  right  is  exercised  both  by  Great  Britain 
and  America,  to  enforce  their  respective  revenue  laws.  The  only  limit 
to  this  right  is  the  principle  that  you  do  not  thereby  invadeThe  exclu- 
sive rights  of  other  nations.     *     *     * 

Livingston,  J.*^  In  this  case,  when  here  before,  I  dissented  from 
the  opinion  of  the  court,  because  I  did  not  think  that  the  condemnation 
of  a  French  court,  at  Guadaloupe.  of  a  vessel  and  cargo  lying  in  the 
port  of  another  nation,  had  changed  the  property ;  but  this  ground, 
which  was  the  only  one  taken  by  two  of  the  judges  in  this  case,  and  by 
three,  in  that  of  Rose  v.  Himely,  4  Cranch,  241,  2  L.  Ed.  608,  and  was 
principally  and  almost  solely  relied  on  at  bar,  was  overruled  by  a  ma- 
jority of  the  court,  as  will  appear  by  examining  those  two  cases,  which 
were  decided  the  same  day.  I  am  not,  therefore,  in  determining  this 
cause,  as  it  now  comes  up,  at  liberty  to  proceed  upon  it;  and  such 
must  have  been  the  opinion  of  Judge  Chase,  on  the  trial  of  it,  who 
was  one  of  the  court  who  had  proceeded  on  that  principle. 

Considejing  it,  then,  as  settled,  that  the  French  tribunal  had  jurisdic- 
tion of  property  seized  under  a  municipal  regulation,  within  the  terri- 
torial jurisdiction  of  the  government  of  St.  Domingo,  it  only  remains 
for  me  to  say,  whether  it  will  make  any  difference  if,  as  now  appears 
to  have  been  the  case,  the  vessel  were  taken  on  the  high  seas,  or  more 
than  two  leagues  from  the  coast.  If  the  res  can  be  proceeded  against, 
when  not  in  the  possession  or  under  the  control  of  the  court,  I  am  not 
able  to  perceive,  how  it  can  be  material,  whether  the  capture  were  made 
within  or  beyond  the  jurisdictional  limits  of  France ;  or  in  the  exercise 
of  a  belligerent  or  municipal  right.  By  a  seizure  on  the  high  seas,  she 
mterfered  with  the  jurisdiction  of  no  other  nation,  the  authority  of  each 
being  there  concurrent.  It  would  seem  also,  that  if  jurisdiction  be  at 
all  permitted,  where  the  thing  is  elsewhere,  the  court  exercising  it  must 
necessarily  decide,  and  that  ultimately,  or  subject  only  to  the  review  of  a 
superior  tribunal  of  its  own  state,  whether,  in  the  particular  case,  she 
had  jurisdiction,  if  any  objection  be  made  to  it.  And  although  it  be 
now  stated,  as  a  reason  why  we  should  examine  whether  a  jurisdiction 
was  rightfully  exercised  over  the  Sea  Flower,  that  she  was  captured 
more  than  two  leagues  at  sea,  who  can  say,  that  this  very  allegation,  if 
it  had  been  essential,  may  not  have  been  urged  before  the  French  court, 
and  the  fact  decided  in  the  negative?  And  if  so,  why  should  not  its 
decision  be  as  conclusive  on  this  as  on  any  other  point?  The  judge 
must  have  had  a  right  to  dispose  of  every  question  which  was  made 
on  behalf  of  the  owner  of  the  property,  whether  it  related  to  his  own 
jurisdiction,  or  arose  out  of  the  law  of  nations,  or  out  of  the  French 
decrees,  or  in  any  other  way:  and  even  if  the  reasons  of  his  judgment 
should  not  appear  satisfactory,  it  would  be  no  reason  for  a  foreign  court 

45  The  statement  of  facts  is  abridged  and  part  of  the  opiuiou  is  omitted. 


Ch,  4)  JURISDICTION   OF  STATES  367 

to  review  his  proceedings,  or  not  to  consider  his  sentence  as  conclusive 
on  the  property. 

Beheving,  therefore,  that  this  property  was  changed  by  its  condemna- 
tion at  Guadaloupe,  the  original  owner  can  have  no  right  to  pursue  it 
in  the  hands  of  any  vendee  under  that  sentence,  and  the  judgment  below 
must,  therefore,  be  affirmed.    . 

The  other  Judges  (except  the  Chief  Justice)  concurred.     *     *     * 


THE  ITATA. 
SOUTH  AMERICAN  STEAMSHIP  CO.  v.  UNITED  STATES. 

(United  States  and  Chilean  Claims  Commission  tinder  Convention  of  August 
7,   1892.     3  Moore's  International  Arbitrations,  3067.) 

The  questions  raised  by  the  demurrer  in  this  case  are  very  import- 
ant, and  have  been  argued  with  unusual  zeal  and  ability  by  the  learned 
counsel  on  both  sides.  At  present  we  deem  it  only  necessary  to  decide 
whether  the  steamship  Itata  was  the  property  of  the  claimant  at  the 
time  the  acts  complained  of  were  committed,  and  whether  her  alleged 
seizure  by  the  Government  of  the  United  States  was  illegal.  As  to 
the  question  of  ownership,  there  is  a  distinct  allegation  in  the  memorial 
that  the  vessel  belonged  to  the  memorialist.  That  allegation  is  admitted 
by  the  demurrer  to  be  true  in  so  far  as  it  is  not  contradicted  or  con- 
trolled by  the  accompanying  documents.  After  a  careful  examination 
of  those  documents,  we  find  nothing  inconsistent  with  the  allegation 
of  the  memorialist  as  to  ownership ;  on  the  contrary,  we  think  they 
fully  sustain  its  claim.  They  show  that  at  the  time  of  its  seizure  the 
steamship  Itata  was  in  the  temporary  possession  of  the  provisional 
government  of  Chile.  It  is  immaterial  to  inquire  whether  that  pos- 
session was  acquired  under  a  charter  party  or  by  virtue  of  the  au- 
thority given  by  the  laws  of  Chile  enacted  on  the  29th  of  December. 
1883,  and  the  1st  of  February,  1888.  If  the  possession  was  only  tem- 
porary and  the  general  ownership  of  the  vessel  remained  in  the  com- 
pany, it  has,  beyond  all  question,  we  think,  the  right  to  maintain  an 
action  for  any  damage  done  to  the  vessel  itself.  It  appears  that  when 
the  libel  or  information  against  the  Itata  was  filed  in  the  district  court 
of  the  United  States  for  the  southern  district  of  California  the  captain, 
in  the  navy  of  the  Republic  of  Chile,  who  commanded  her  at  the  time 
of  the  seizure,  made  the  following  claim :  "That  he  is  the  commander 
and  in  possession  of  the  steamship  Itata,  her  tackle,  apparel,  ^nd  furni- 
ture, for  the  Government  and  Republic  of  Chile,  as  charterer  thereof 
under  the  laws  of  said  republic  from  the  South  American  Steamship 
Company,  owner  of  said  steamship.  Wherefore  this  claimant  prays 
that  this  honorable  court  will  be  pleased  to  decree  a  restitution  of 
the  same  to  him  as  such  commander  in  possession,  and  otherwise  right 
and  justice  to  administer  in  the  premises." 


368  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

But  it  also  appears  that  Charles  R.  Flint,  intervening  as  agent  for  the 
interest  of  the  South  American  Steamship  Company  in  the  said  steam- 
ship Itata,  appeared  before  the  court  and  made  claim  to  the  said  steam- 
ship and  averred:  "That  said  company  was  the  owner  of  the  said 
steamship  at  the  time  of  the  attachment  thereof,  and  that  the  said  com- 
pany is  the  true  and  bona  fide  owner  of  the  said  steamship,  and  that 
no  other  person  is  the  owner  thereof." 

The  record  of  the  suit  also  shows  that  there  was  no  contest  made  by 
the  counsel  representing  the  steamship  company  and  the  provisional 
government  of  Chile  as  to  the  ownership  of  the  said  vessel.  It  seems 
they  were  in  perfect  accord  on  that  subject,  and  that  by  an  agreement 
entered  into  between  them  and  announced  in  open  court  the  vessel  was 
delivered  to  the  representatives  of  the  provisional  government  of  Chile. 
Under  these  circumstances  we  are  unable  to  assent  to  the  proposition 
that  the  South  American  Steamship  Company  has  forfeited  its  right  to 
appear  before  this  commission  and  assert  its  claim.  It  may  or  may  not 
be  true  that  the  said  company  has  a  valid  claim  against  Chile,  and  that 
Chile  has  a  valid  claim  against  the  United  States,  growing  out  of  the 
seizure  of  the  Itata.  We  do  not  feel  called  upon  to  express  any  opinion 
.upon  that  subject.  We  only  decide  at  present  that  the  memorialist, 
as  the  owner  of  the  steamship  Itata,  is  entitled  to  maintain  its  claim 
for  any  damage  done  to  the  vessel  itself,  if  such  damage  has  been  oc- 
casioned by  any  unjustifiable  action  of  the  United  States. 

Did  the  government  of  the  United  States,  by  the  seizure  of  the 
Itata  for  an  alleged  infraction  of  its  neutrality  laws,  incur  any  legal 
liability?  The  record  of  the  suit  referred  to  shows  that  the  district 
court  of  the  United  States  for  the  southern  district  of  California, 
after  full  consideration  of  all  the  evidence,  documentary  and  oral, 
ordered  and  decreed  that  the  United  States  should  recover  nothing  by 
reason  of  the  libel  against  the  steamship  Itata,  and  that  said  libel 
should  be  dismissed.**  The  United  States  took  appeal  from  this  decree, 
and  it  was  affirmed  by  the  circuit  court  of  appeals,  the  three  judges  of 
that  court  being  unanimously  of  the  opinion  that  the  evidence  adduced 
was  not  sufficient  to  justify  a  decree  of  forfeiture.*^  It  is  true  they 
pronounced  the  seizure  to  have  been  justifiable  under  the  circumstanc- 
es, but  as  the  question  of  probable  cause  was  not  involved  in  the  de- 
termination of  the  question  before  the  court,  we  do  not  feel  bound  by 
the  dictum  of  the  judges  on  that  subject.  In  view  of  the  occurrences 
that  took  place  after  the  original  seizure  of  the  Itata,  we  do  not  deem 
it  necessary  at  this  time  to  decide  whether  there  was  probable  cause 
for  the  seizure  or  not. 

After  stating  that  on  or  about  the  6th  of  May,  1891,  while  lying 
in  the  harbor  of  San  Diego,  the  said  steamship  was  boarded  by  a  per- 
son who  alleged  himself  to  be  one  Spaulding,  an  officer  of  the  United 

4«  U.  S.  V.  Trumbull,  48  Fed.  99  (1891). 

4^  The  Itata,  56  Fed.  505,  5  C.  C.  A.  608  (1893). 


Ch.  4)  JURISDICTION   OF  STATES  369 

States,  and  in  such  pretended  capacity  assumed  to  take  possession  of 
said  vessel ;  that  the  said  Spaulding  was  unable  to  exliibit  any  au- 
thority as  an  officer  of  the  United  States,  and  thp  officers  of  the  said 
Itata,  believing  him  to  be  falsely  impersonating  an  officer  of  the  Unit- 
ed States,  set  him  on  shore,  and  said  Itata  put  to  sea,  the  memorialist 
proceeds  as  follows : 

"Meanwhile  the  government  of  the  United  States,  or  the  duly  au- 
thorized and  responsible  officers  thereof,  had  taken  cognizance  of  the 
presence  of  the  said  Itata  within  the  jurisdiction  of  the  United  States 
and  the  fact  of  her  departure  therefrom,  and  for  reasons  unknown 
to  your  memorialist  directed  certain  of  its  naval  officers  to  proceed  with 
vessels  of  war  in  pursuit  of  the  said  Itata ;  to  intercept  her  by  force 
if  found  on  the  high  seas,  and  to  cause  her  to  return  to  San  Diego. 

"It  became  known  to  the  provisional  government  of  Chile,  or  its  duly 
authorized  and  empovv'ered  representatives,  through  the  medium  of  the 
public  press,  that  the  steamship  Itata  was  charged  by  the  government 
of-  the  United  States,  or  by  certain  of  its  officers,  with  an  infraction  of 
the  neutrality  laws  of  the  said  United  States,  that  a  portion  of  the 
United  States  naval  forces  were  then  en  route  to  the  port  of  Iquique 
for  the  purpose  of  securing  the  said  Itata,  and  said  reports  were  con- 
firmed by  a  note  to  Mr.  Isidoro  Errazuriz,  minister  of  foreign  rela- 
tions from  Admiral  W.  P.  McCann,  in  which  the  latter,  in  his  official 
capacity  as  commander  in  chief  of  the  United  States  naval  forces  on 
that  station  and  as  the  representative  of  his  government,  solemnly 
asserted  and  declared  without  qualification  that,  in  his  opinion,  the  said 
Itata,  in  procuring  her  cargo  within  the  waters  of  the  United  States, 
was  guilty  of  a  violation  of  said  neutrality  laws.  Upon  these  repre- 
sentations of  Admiral  McCann,  made  in  the  manner  aforesaid,  and 
because  of  the  demands  of  the  Government  of  the  United  States,  ac- 
companied as  they  were  by  the  presence  of  a  large  naval  force,  the 
said  Itata,  with  her  cargo,  was  surrendered  under  duress  to  the  rep- 
resentatives of  the  United  States. 

"The  said  Itata  was  accordingly  taken  possession  of  by  said  Ad- 
miral McCann  on  the  4th  day  of  June,  1891,  and  departed  from 
Iquique  on  the  13th  day  of  June,  1891,  under  convoy  of  the  U.  S.  S. 
Charleston,  Captain  George  C.  Remey  commanding,  by  whom  she 
was  placed  in  the  custody  of  the  United  States  marshal  at  San  Diego 
on  or  about  the  6th  day  of  July,  1891." 

We  find  nothing  at  variance  with  these  statements  in  the  documents 
accompanying  the  memorial  or  in  any  public  document  to  which  we 
may  properly  make  reference.  Assuming  it  to  be  true  that  after  the 
departure  of  the  Itata  from  the  port  of  San  Diego  she  was  pursued 
by  the  naval  authorities  of  the  United  States  upon  the  high  seas  into 
Chilean  waters,  induced  to  surrender  by  a  display  of  superior  force, 
and  brought  back  under  duress,  tlie  question  arises  whether  or  not- 
Scott  Int. Law — 24 


370  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OP   PEACE       (Part  1 

such  action  on  the  part  of  the  United  States  was  allowed  by  the  laws 

of  nations.    After  an  examination  of  many  authorities  on  international 

law  and  numerous  decisions  of  courts,  we  are   of   opinion  that  the 

United  States  committed  an  act  for  which  they  are  liable  in  damages 

and  for  which  they  should  be  held  to  answer.     Mr.  David  Dudley 

Field,  in  his  International  Code,  §  626,  says : 

,'      "An  inmate  of  a  foreign  ship  who  commits  an  infraction  of  the 

/    criminal  law  of  a  nation  within  its  territory  can  not  be  pursued  be- 

vyond  its  territory  into  any  part  of  the  high  seas." 

~'In  the  case  of  The  ApoUon,  reported  in  9  Wheat,  p.  361  [6  L.  Ed. 
Ill],  it  was  decided — 

"That  the  municipal  laws   of   one  nation   do   not  extend  in  their 
'  f  operation  beyond  its  own  territory  except  as  regards  its  own  citizens, 
and  that  a  seizure  for  a  breach  of  municipal  laws  of  one  nation  can  not 
\    be  made  within  the  territory  of  another." 

Mr.  Justice  Story,  in  delivering  the  opinion  of  the  court,  says : 

"It  would  be  monstrous  to  suppose  that  our  revenue  officers  were 
authorized  to  enter  into  foreign  ports  and  territories  for  the  purpose 
of  seizing  vessels  which  had  offended  against  our  laws.  It  cannot  be 
presumed  that  Congress  would  voluntarily  justify  such  a  clear  vio- 
lation of  the  laws  of  nations." 

In  the  case  of  Rose  v.  Himely,  reported  in  4  Cranch,  239  [2  L. 
Ed.  608],  Chief  Justice  Marshall,  speaking  for  a  majority  of  the 
court  says : 

"It  is  conceded  that  the  legislation  of  every  country  is  territorial; 
that  beyond  its  own  territory  it  can  only  affect  its  own  subjects  or  citi- 
zens. It  is  not  easy  to  conceive  a  power  to  execute  a  municipal  law  or  to 
enforce  obedience  to  that  law  without  the  circle  in  which  that  law  oper- 
ates. A  power  to  seize  for  the  infraction  of  a  law  is  derived  from  the 
sovereign  and  must  be  exercised,  it  would  seem,  within  those  TTrhrts 
which  circumscribe  the  sovereign  power.  The  rights  of  war  may  be 
exercised  on  the  high  seas,  because  war  is  carried  on  upon  the  high 
seas ;  but  the  specific  rights  of  sovereignty  must  be  exercised  within  the 
territory  of  the  sovereign.  If  these  propositions  be  true,  the  seizure 
of  a  person  not  a  subject,  or  of  a  vessel  not  belonging  to  a  subject,  made 
,  on  the  high  seas  for  the  breach  of  a  municipal  regulation,  is  an  act 
/  which  the  sovereign  cannot  authorize.  The  person  who  makes  this 
seizure,  then  makes  it  on  a  pretext  which,  if  true,  will  not  justify  the 
act,  and  is  a  marine  trespasser." 

In  view  of  these  authorities  and  others  that  might  be  cited,  we  are 
of  the  opinion  that  the  South  American  Steamship  Company  has  a 
claim  for  extraordinary  repairs  of  machinery  and  boilers  made  nec- 
essary by  the  long  voyages  to  and  from  San  Diego.  We  do  not  deem 
it  necessary  at  this  time  to  examine  the  other  items  of  the  damages 

Scott  Int.Law 


Ch.  4)  JURISDICTION   OF   STATES  371 

claimed.     If  any  single  item  in  the  list  constittites  a  valid  claim  for 
damages,  the  demurrer  can  not  be  sustained. 

We  therefore  decide  that  it  should  be  overruled  and  the  respondent 
required  to  answer.** 


IV.   Jurisdiction  of  Offenses  Committed  Abroad 

The  TRIAL  OF  EARL  RUSSELL. 
(Before  tbe  King  in  Parliament,  1901.     L.  R.  1901,  App.  Cas.  446.) 

Earl  Russell  was  married  to  Mabel  Edith  Scott  on  February  6,  1890, 
in  England.  On  April  14,  1900,  he  obtained  a  divorce  from  his  wife 
in  Nevada,  and  on  the  day  thereafter,  married  one  Mollie  Cook,  other- 
wise known  as  Mrs.  Somerville. 

In  June,  1890,  Lady  Russell  presented  a  petition  against  Earl  Russell 
for  divorce  on  the  ground  of  bigamous  adultery,  and  on  March  24, 
1901,  a  decree  nisi  was  pronounced,  the  suit  being  undefended. 

On  June  17,  1901,  Earl  Russell  was  arrested  and  charged  with  big- 
amy. Subsequently,  the  Grand  Jury  found  a  true  bill,  but  as  Lord  Rus- 
sell was  a  Peer  of  the  Realm,  his  case  was  transferred  to  the  House 
of  Lords,  of  which  he  was  a  member,  and  was  tried,  in  accordance  with 
precedent,  before  the  Lord  High  Steward  (Halsbury,  L.  C).  *  *  *  *» 

July  18.  The  Earl  of  Halsbury  L.  C,  presided  as  Lord  High  Stew- 
ard. There  were  also  present  about  160  Peers,  including  all  the  Law 
Lords  who  generally  hear  appeals,  and  the  following  judges:  Sir 
Francis  Jeune,  and  Mathew,  Wills,  Wright,  Lawrance,  Kennedy,  Dar- 
ling, Bigham,  Cozens-Hardy,  Farwell,  and  Buckley,  JJ. 

The  King's  Commission,  the  writ  of  certiorari,  the  return  thereof, 

4  8  See  The  King  v.  The  Ship  North,  11  British  Columbia  Reports,  473  (1905), 
in  which  the  High  Court  of  Admiralty  of  British  Columbia  held  that  a  pur- 
suit begun  within  the  jurisdiction  of  that  province  for  violation  of  munici- 
pal law  might  be  continued  upon  the  high  seas,  and  "the  schooner  North,  her 
boats,  tackle,  rigging,  apparel,  furniture,  stores,  and  cargo,  *  *  *  con- 
demned and  declared  forfeited  to  His  Majesty."  This  judgment  was  aflirmed 
on  appeal  by  the  Supreme  Court  of  Canada  in  The  Ship  North  v.  The  King, 
37  Canada  Supreme  Court  Reports,  385  (1906).  This,  it  will  be  observed,  is 
the  decision  of  a  municipal  court  of  justice. 

In  The  O.  H.  White,  the  contrary  was  held  by  Asser,  Arbitrator,  in  arbitra- 
tion between  the  United  States  and  Russia,  under  agreement  of  August  26/ 
September  8,  1900.  (Foreign  Relations  of  the  U.  S.,  1902,  Appendix  I,  459). 
It  is  to  be  observed  that  the  decision  of  the  arbitrator  was  under  international, 
not  municipal,  law. 

"Thus  it  would  seem,"  as  Mr.  Lester  H.  Woolsey  states  in  the  memorandum 
refen-ed  to,  ante,  p.  361,  "that  the  question  whether  municipal  seizures  be- 
yond the  three-mile  limit  are  legal  has  been  decided  aflirmatively  by  the 
municipal  coui-ts,  bound  by  municipal  law,  and  negatively  by  international 
tribunals  governed  by  international  law."  Foreign  Relations  of  the  United 
States,  1912,  1289-1297. 

•*^  A  shortened  statement  has  been  substituted  for  that  of  the  oi*igiuaJ 
report. 


372  RIGHTS   AND   DUTIES  OF   NATIONS   IN  TIME   OF  PEACE       (Part  1 

and  the  indictment  having  been  read,  Earl  Russell  was  called  upon  to 
plead  guilty  or  not  guilty.     *     *     * 

Robson,  K.  C,  for  Earl  Russell: 

Before  the  defendant  pleads  to  this  indictment  it  is  submitted  that 
the  indictment  ought  to  be  quashed,  inasmuch  as  it  discloses  no  offence 
according  to  the  true  construction  of  the  fifty-seventh  section  of  the 
Offences  against  the  Person  Act,  1861.  The  section  defining  the  of- 
fence does  not  in  express  terms  apply  to  any  offence  committed  beyond 
the  King's  dominions.  According  to  the  well-known  rule  of  construc- 
tion in  every  Act  passed  by  our  Parliament,  words,  however  wide,  with 
reference  to  area  must  have  read  along  with  them  a  reference  to  the 
King's  dominions,  unless  very  express  words  are  added  in  the  Act 
shewing  that  it  was  the  intention  of  the  Legislature  to  make  justici- 
,  able  offences  committed  outside  the  King's  dominions.  The  word 
'—^  "elsewhere"  must  be  read  with  a  limitation — that  is,  it  means  "else- 
<^  where"   within   the    King's   dominions.      This   is    shewn   by   sections 

^/ i  9  and  4  of  this  very  Act,  where  the  framers  of  the  statute  did  not 
'  consider  the  preliminary  words  "where  any  murder,  &c.,  shall  be  com- 
mitted on  land  out  of  the  United  Kingdom"  sufficiently  wide  to  cover 
offences  committed  outside  His  Majesty's  dominions,  and  added  the 
express  words  which  are  absent  from  section  57,  "whether  within  the 
Queen's  dominions,  or  without."  Therefore,  if  the  words  "or  else- 
where" had  been  intended  to  apply  to  places  beyond  the  King's  domin- 
ions, words  would  have  been  added  to  that  effect. 

[The  Lord  High  Steward  referred  to  the  proviso  in  section  57. 
Has  not  the  Imperial  Legislature  a  right  to  legislate  with  respect  to  His 
Majesty's  subjects  all  over  the  world  wherever  they  are?] 

Undoubtedly.  But  if  section  57  had  been  intended  to  apply  to  coun- 
tries abroad,  words  would  have  been  inserted  for  that  purpose.  The 
reasons  given  for  the  decision  in  Macleod  v.  Attorney  General  for  New 
South  Wales  (1)  apply  here.     *     *     * 

The  Lord  High  Steward.  My  Lords,  we  have  the  advantage  of 
having  His  Majesty's  judges  here.  I  have  been  myself  of  opinion  for 
some  time  that  the  matter  which  has  been  discussed  at  such  inordinate 
length  was  really  too  plain  for  argument.  The  statute  is  plain  in  its 
ordinary  signification,  and  the  only  ground  upon  which  the  learned 
counsel  can  suggest  that  we  should  not  give  it  its  ordinary  significa- 
tion is  apparently  because  of  the  use  of  certain  words  in  other  statutes 
enacted  under  other  circumstances  in  relation  to  other  crimes.  My 
Lords,  I  thought  it  right  to  ask  His  Majesty's  judges  whether  there  is 
anything  in  the  argument  suggested  which  should  call  for  the  Attorney 
General  to  reply;  and  they  are  unanimously  of  opinion  that  there  is 
not,  and  that  it  is  not  necessary  to  hear  the  Attorney  General. 

Thereupon,  Earl  Russell  having  under  the  advice  of  his  counsel 
pleaded  guilty, 


Cll.  4)  JURISDICTION   OF   STATES  373 

Robson,  K.  C,  addressed  their  Lordships  on  the  mitigation  of  pun- 
ishment ;    and  Earl  Russell  was  also  allowed  to  make  a  speech. 

Sentence — Three  calendar  months'  imprisonment  in  His  Majesty's 
prison  at  Holloway  as  an  offender  of  the  First  Division.^** 


STATE  V.  KNIGHT. 

(Superior  Court  of  North  Carolina,  1799.    1  N.  C.  143.) 

The  defendant  was  indicted  under  the  fourth  section  of  the  act  of 
1784,  c.  25,  the  words  of  which  are:  "And  whereas  there  is  reason 
to  apprehend  that  wicked  and  ill-disposed  persons,  resident  in  the 
neighbouring  states,  make  a  practice  of  counterfeiting  th€  current  bills 
of  credit  of  this  state;  and  by  themselves,  or  emissaries,  utter  or  vend 
the  same  with  an  intention  to  defraud  the  citizens  of  this  state ;  Be  it 
enacted,  &c.  that  all  such  persons  shall  be  subject  to  the  same  mode  of_ 
trial,  and  on  conviction,  liable  to  the  same  pains  and  penalties,  as  if  the^ 
offence  had  been  committed  within  the  limits  of  this  state,  and  be  prose- 
cuted in  the  Superior  Court  of  any  district  of  the  state."  Being  found 
guilty  by  the  jury,  he  was  now  brought  up  to  receive  judgment. 

Taylor,  J.  As  the  prisoner  was  unassisted  with  counsel  at  his  trial, 
we  have  felt  it  to  be  our  duty  to  examine  whether  this  indictment  and 
conviction  be  warranted  by  a  just  application  of  the  principles  of  crimi- 
nal justice  and  of  general  jurisprudence;  and  an  inquiry  having  produc- 
ed great  doubts  as  to  the  validity  of  this  section  of  the  act,  independent 
of  the  indefinite  terms  in  which  it  is  expressed,  we  have  thought  it  right 
that  this  judgment  should  be  arrested.    The  states  are  to  be  considered, 

5  0  The  question  discussed  and  decided  in  the  principal  case  has  recently 
arisen  in  another  of  the  British  dominions.  The  facts  involved  and  the 
decision  of  the  court  are  thus  stated  by  Arthur  Berridale  Keith,  in  his  War 
Government  of  the  British  Dominions,  262  (1921)  : 

"In  1919  the  question  was  brought  to  a  direct  issue  on  the  trial  of  a  New 
Zealand  soldier  (R.  v.  Lauder,  [1919]  N.  Z.  L.  R.  305),  who  being  already 
married,  went  through  a  form  of  marriage  with  a  girl  in  England,  where  he 
was  stationed  while  on  war  service.  The  New  Zealand  Crimes  Act.  1908. 
following  the  provisions  of  the  British  law  of  bigamy,  enacted  penalties  for 
any  British  subject  who  entered  into  a  second  marriage,  during  the  subsistence 
of  his  first  marriage,  wherever  the  second  marriage  might  take  place,  but  it 
was  contended  for  the  defence  that,  while  the  Imperial  legislature  had  power 
to  pass  such  an  enactment,  no  such  authority  was  vested  in  the  Dominion 
Parliament,  whose  legislative  sphere  was  restricted  to  New  Zealand.  This 
contention  was  repelled  by  the  Chief  Justice,  who  held  that  power  to  punish 
a  New  Zealander  for  such  an  offence  followed  as  a  natural  consequence  from 
the  right  to  make  laws  for  the  peace,  order,  and  good  government  of  the 
Dominion,  but  the  other  judges  of  the  Court  of  Appeal  agreed  that  the  Now 
Zealand  Act  was  invalid  in  .so  far  as  it  purported  to  penalize  actions  taking 
place  beyond  New  Zealand  limits." 

In  Macleod  v.  Atty.  Gen.  [1891]  A.  C.  4.")5,  Halsbury  L.  C,  laid  down  as 
English  law  that  "all  crime  is  local.  The  jurisdiction  over  the  crime  belongs 
to  the  country  where  the  crime  is  committed,  and,  except  over  her  own 
subjects,  Her  Majesty  and  the  Imperial  Legislature  have  no  power  whatever." 


374  RIGHTS  AND  DUTIES  OF  NATIONS   IN   TIME   OF  PEACE       (Part  1 

with  respect  to  each:  other,  as  independent  sovereignties,  possessing 
powers  completely  adequate  to  their  own  government,  in  the  exercise  of 
which  they  are  Hmited  only  by  the  nature  and  objects  of  government, 
by  their  respective  constitutions,  and  by  that  of  the  United  States. 
Crimes  and  misdemeanors  committed  within  the  limits  of  each,  are 
punishable  only  by  the  jurisdiction  of  that  state  where  they  arise;  for 
the  right  of  punishing,  being  founded  upon  the  consent  of  the  citizens, 
express  or  implied,  cannot  be  directed  against  those  who  never  were 
citizens,  and  who  likewise  committed  the  offence  beyond  the  territorial 
limits  of  the  state  claiming  jurisdiction.  Our  legislature  may  define 
and  punish  crimes  committed  w'ithin  the  state,  whether  by  citizens  or 
strangers;  because  the  former  are  supposed  to  have  consented  to  all 
laws  made  by  the  legislature,  and  the  latter,  whether  their  residence  be 
temporary  or  permanent,  do  impliedly  agree  to  yield  obedience  to  all 
such  laws,  as  long  as  they  remain  in  the  state:  but  they  cannot  define 
and  punish  crimes  committed  -in  another  state,  the  citizens  oT  whicF, 
while  they  remain  there,  are  bound  to  regulate  their  civil  conduct  only 
according  to  their  own  laws.  If  our  legislature  does  not  rightfully 
possess  such  a  power,  its  assumption  and  exercise  should  be  carefully 
avoided,  lest  our  own  citizens  should  be  harassed  under  the  operation 
of  similar  laws  enacted  in  other  states ;  whereby  acts,  against  which 
the  policy  of  this  state  did  not  require  that  any  punishment  should  be 
denounced,  may  be  punished  in  other  states  with  exemplary  severity. 
This  may  happen  in  relation  to  those  acts  which  are  not  criminal  in 
the  state  where  committed ;  but  the  consequences  will  be  far  more  seri- 
ous, if  the  acts  are  originally  criminal ;  for  then  a  conviction  and  pun- 
ishment in  a  state  having  no  right  to  entertain  jurisdiction  of  the 
offence,  and  consequently  to  inflict  the  punishment,  will  be  disregarded 
in  the  courts  of  that  state,  where  the  offence  arose.  The  crime  describ- 
ed  in  this  section  of  the  act  is  no  doubt  punishable  in  Virginia  as  a  com- 
mon law  misdemeanor,  and  although  the  punishment  may  be  less  severe 
than  that  prescribed  by  our  act  of  assembly,  yet  it  is  better  to  yield  up 
the  offender  to  the  laws  of  his  own  state,  than,  by  inflicting  a  punish- 
ment under  the  exercise  of  a  doubtful  jurisdiction,  furnish  a  precedent 
for  a  sister  state  to  legislate  against  acts  committed  by  our  own  citi- 
zens, and  within  the  limits  of  our  own  territory.  "^ 
I  am  authorized  by  Judge  Haywood,  to  declare  his  concurrence  in 
the  opinion,  that  the  prisoner  be  discharged.^  ^ 

51  In  United  States  v.'Arjona,  120  U.  S.  479,  487,  7  Sup.  Ct.  628,  30  L.  Ed. 
728  (1887),  the  Supreme  Court  held  tliat  the  right  to  coin  money  was  an  es- 
sential of  sovereignty ;  that  the  United  States  could  prevent  the  counterfeit- 
ing of  foreign  money  within  its  territory,  and  should  punish  the  offense  when 
committed. 

In  the  course  of  the  opinion,  Mr.  Chief  Justice  Waite,  speaking  for  the 
court,  said : 

"But  if  the  United  States  can  require  this  of  another,  that  other  may  re- 
quire it  of  them,  because  international  obligations  are  of  necessity  reciprocal 
in  their  nature.    The  right,  if  it  exists  at  all,  is  given  by  the  law  of  nations. 


Ch.  4)  JURISDICTION   OF   STATES  375 

COMMONWEALTH  v.  BLANDING. 

(Supreme  Judicial  Court  of  Massachusetts,  1825.     3  Pick.  304,  15  Am.  Dec. 

214.) 

This  was  an  indictment  charging  the  defendant  with  making,  fram- 
ing and  causing  to  be  published  in  a  newspaper  called  the  Providence 
Gazette  at  Rehoboth,  in  the  county  of  Bristol,  on  the  20th  of  February, 
1822  a  false,  scandalous  and  libellous  paragraph  concerning  one 
Enoch  Fowler,  he  then  being  an  innholder  in  that  county,  and  a  good 
and  peaceable  citizen,  etc. 

On  the  trial,  before  Wilde,  J.,  it  was  proved  that  the  defendant  de- 
livered the^  writing  set  forth  in  the  indictment  to  the  printer  of  the 
Providence  Gazette,  at  Providence,  in  the  state  of  Rhode  Island,  and 
that  it  was  published  in  that  paper  at  the  request  of  the  defendant  who 
acknowledged  that  he  was  the  author  of  it;  and  it  was  proved  that 
that  paper  circulates  in  Rehoboth,  and  had  so  circulated  previously  to 
such  publication ;  and  that  the  number  containing  this  writing  was  re- 
ceived and  circulated  in  that  town. 

The  defendant  offered  to  give  in  evidence  a  coroner's  inquest  allud- 
ed to  in  the  libel,  to  prove  that  the  allegations  contained  therein  v/ere 
truej  and  he  also  offered  to  prove  the  truth  of  all  the  allegations  in 
the  writing.     But  this  evidence  was  not  admitted. 

The  defendant  contended  that  there  was  no  evidence  that  the  writing 
was  composed  or  published  in  the  county  of  Bristol;  but  the  jurv 
were  instructed,  that  the  causing  of  it  to  be  published  in  the  Providence 
Gazette,  the  defendant  knowing  that  that  newspaper  was  taken  and 
circulated  in  Rehoboth,  was  a  sufficient  publication  within  the  county.^ 

The  jury  were  also  instructed,  that  the  malicious  intent  charged  in  the 
indictment  was  an  inference  of  law,  it  not  being  competent  for  the  de- 
fendant to  prove  the  truth  of  the  facts  alleged,  and  there  being  no  such 
proof  in  the  case;  and  that  although  the  jury  were,  with  the  advice  of 
the  court,  the  judges  of  the  law  and  the  fact,  yet  they  were  bound  to 
decide  according  to  the  law  as  actually  established,  whatever  might  be 
their  opinion  of  its  policy ;  and  that  unless  they  knew  the  law  to  be 
otherwise,  they  ought  to  receive  it  from  the  judge,  whose  instructions, 
if  incorrect,  would  be  subject  to  revision  and  correction  by  the  whole 
court. 

A  verdict  was  returned  against  the  defendant ;  but  if  these  instruc- 
tions were  wrong,  or  if  the  evidence  offered  by  the  defendant  should 
have  been  admitted,  the  verdict  was  to  be  set  aside  and  a  new  trial 
granted,  or  the  defendant  was  to  be  discharged,  according  as  the  whole 
Court  might  direct. 

and  what  is  law  for  one  is,  under  the  same  circumstances,  law  for  the  other. 
A  right  secured  by  the  law  of  nations  to  a  nation,  or  its  people,  is  one  the 
United  States  as  the  representatives  of  this  nation  are  bound  to  protect." 


376  RIGHTS  AND   DUTIES  OF  NATIONS   IN  TIME   OP  PEACE       (Part  1 

Parker,  C.  J./^  delivered  the  opinion  of  the  court. 

As  to  the  first  question,  which  relates  to  the  publication  of  the  sup- 
posed libel,  we  think  Uie^dmrtted  facts,  that  it  was  at  the  request  of  the 
defendant  inserted  in  a  public  newspaper  printed  in  Providence,  which, 
though  in  another  state,  borders  on  the  county  of  Bristol,  and  that  that 
paper  usually  circulates  in  the  town  of  Rehoboth  in  that  county,  and 
that  the  number  containing  the  libel  was  actually  received  and  did  circu- 
late in  that  town,  were  competent  and  conclusive  evidence  of  a  publica- 
tion in  the  county  of  Bristol.  In  this  respect  the  case  is  like  that  of 
Rex  v.  BurdeTt"  4  Barn.  &  Aid.  95.^» 

As  to  that  part  of  the  instructions  of  the  judge,  which  states  that  the 
malicious  intent  charged  in  the  indictment  (there  being  no  evidence 
admitted  to  prove  the  truth  of  the  facts  alleged)  was  an  inference  of 
law, — this  is  certainly  the  common  law  doctrine,  and  it  never  has  been 
repealed  by  any  statute  of  this  commonwealth,  nor  overruled  by  any 
decision  of  this  court;  and  if  the  doctrine  be  true,  that  the  gist  or 
essence  of  the  offence  of  libel  is,  that  it  tends  to  provoke  a  breach  of 
the  peace,  and  this  certainly  is  maintained  in  all  the  books,  then  it  must 
follow,  that  when  the  publication  complained  of  is  of  a  libellous  nature, 
it  must  be  taken  to  be  of  a  malicious  character,  uftless  the  defendant 
shall  within  some  of  the  known  provisions  of  law  be  admitted  to  prove, 
and  shall  in  fact  prove,  that  the  allegations  made  are  true,  and  that 
he  had  some  warrantable  purpose,  inconsistent  with  a  malicious  in- 
tent, in  causing  the  publication.     *     *     *  54 

Having  thus  attempted  to  vindicate  the  law  of  Hbel,  as  established 
in  this  commonwealth,  from  the  aspersions  which  are  frequently  cast 
upon  it,  we  will  consider  its  application  to  the  case  before  us,  in  order 
to  determine  whether,  upon  either  of  the  grounds  assumed,  a  new  trial 
ought  to  be  granted. 

The  first  ground,  to  wit,  the  want  of  legal  proof  that  the  libel  was 
published,  as  alleged,  within  the  county  of  Bristol,  has  been  considered 
and  overruled ;   as  has  also  the  objection  to  the  charge  to  the  jury. 

The  other  objection,  which  opens  the  general  question,  is  that  the 
judge  refused  to  admit  in  evidence  the  inquisition  which  is  alluded  to 
in  the  publication,  and  with  a  view  to  prove  the  truth  of  the  facts  there- 
in stated.     *     *     * 

Motion  for  new  trial  overruled. 

''^  Part  of  the  opinion  is  omitted. 

B3  See  1  Russell  on  Crimes,  240;  Roscoe's  Dig.  Crim.  Ev.  537;  2  Stark.  Ev. 
(5th  Am.  Ed.)  455,  456;  3  Chitty  on  Crim.  Law  (3d  Am.  Ed.)  872. 

5  4  See  Root  v.  King,  7  Cow.  (N.  Y.)  613  (1827)  ;  Dexter  v.  Spear,  4  Mason, 
115,  Fed.  Cas.  No.  3,867  (1825)  ;  3  Chitty  on  Crim.  Law  (3d  Am.  Ed.)  867, 
868,  875;  2  Stark.  Ev.  (5th  Am.  Ed.)  461;  Roscoe's  Dig.  Crim.  Ev.  536;  1 
Russell  on  Crimes,  242,  243;   Erwin  v.  Sumrow,  8  N.  C.  472  (1821). 


Ch.  4)  JURISDICTION   OF   STATES  377 


UNITED  STATES  v.  SMILEY  et  al. 

(Circuit  Court  of  the  United  States,  Northern  District  of  California,  1864.    6 
Sawy.  640,  Fed.  Cas.  No.  16,317.) 

The  steamer  Golden  Gate  left  San  Francisco  for  Panama  on  July 
21,  1862,  and  had  on  board  "treasure"  amounting  to  $1,450,000.  On 
July  27,  when  three  miles  and  a  half  from  the  Mexican  shore,  fire  broke 
out,  the  steamer  headed  for  the  shore  and  went  to  pieces  about  two_ 
hundred  and  fifty  feet  from  the  shore,  at  a  point  fifteen  miles  north  of 
Manzanillo,  in  Mexico.  Of  the  money  on  board  $1.200.000  were  ulti- 
mately  recovered  in  port  by  Smiley  and  his  associates.  The  shippers 
and  Smiley  disagreeing  about  his  share  of  the  recovered  treasure, 
he  was  indicted  in  March,  1864,  in  United  States  Circuit  Court  for 
plundering  and  stealing  the  treasure  from  the  Golden  Gate,  under  the 
ninth  section  of  act  of  Congress  of  March  3,  1825  (4  St.  L.  116 
[Comp.  St.  §  10470])  which  provides  "that  if  any  person  *  *  * 
shall  plunder,  steal  or  destroy  any  money,  goods,  merchandise  or  other 
effects  from  or  belonging  to  any  ship  or  vessel  or  boat  or  raft,  which 
shall  be  in  distress,  or  which  shall  be  wrecked,  lost,  stranded,  or  cast 
away  upon  the  sea,  or  upon  any  reef,  shore,  bank,  or  rocks  of  the  sea, 
or  in  any  other  place  within  the  admiralty  and  maritime  jurisdiction 
of  the  United  States,"  he  "shall  be  deemed  guilty  of  a  felony,"  etc.^^ 

Mr.  Justice  Field.     *     *     * 

The  criminal  jurisdiction  of  the  gpyernment  _gLthe_.yiiited_Sta 
that  is,  its  jurisdiction  to  try  parties  for  offences  committed  against 
its  laws — may  in  some  instances  extend  to  its  citizens  evervAvhere. 
Thus,  it  may^jxmish  for  violation  of  treaty  stipulations  by  its  citizen- 
abroad,  for  offences  committed  in  foreign  countries  wherCj  by  treaty, 
jurisdictioji  is  conceded  for  that  purpose,  as  in  some  cases  in  China  and 
in  the  Barbary  States ;  it  may  provide  for  offences  committed  on  de- 
serted  islands,  and  on  an  uninhabited  coast,  by  the  officers  and  seamen 
of  vessels  sajling  under  its  flag.  It  may  also  punish  derelictions  of 
duty  by  its  ministers,  consuls,  and  other  representatives  abroad.  But 
in  all  such  cases  it  will  be  found  that  the  law  of  Congress  indicates 
clearly  the  extraterritorial  character  of  the  act  at  which  punishment 
is  aimed.  Except  in  cases  like  these,  the  criminal  jurisdiction  of  the 
United  States  is  necessarily  limited  to  their  own  territory,  actual  or 
constructive.  Their  actual  territory  is  coextensive  with  their  posses- 
sions, including  a  marine  league  from  their  shores  into  the  sea. 

This  limitation  of  a  marine  league  was  adopted  because  it  was  for- 
merly supposed  that  a  cannon-shot  would  only  reach  to  that  extent. 
It  is  essential  that  the  absolute  domain  of  a  country  should  extend  into 
tEe  sea  so  far  as  necessary  for  the  protectfon  oT^its  inhabitants  against 
injury  frorn  combating  belligerents  while  the  country  itself  is  neutral. 

■"  This  statement  is  substituted  for  that  of  the  report. 


378  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

'Since  the  great  improvement  of  modern  times  in  ordnance,  the  dis- 
tance of  a  marine  league,  which  is  a  little  short  of  three  English  miles, 
may,  perhaps,  have  to  be  extended  so  as  to  equal  the  reach  of  the 
projecting  power  of  modern  artillery.  The  constructive  territory  of 
the  United  States  embraces  vessels  sailing  under  their  flag;  wher- 
ever they  go  they  carry  the  laws  of  their  country,  and  for  a  violation 
of  them  their  officers  and  men  may  b.e  subjected  to  punishment.    But 


when  a  vessel  is  destroyed  and  goes  to  the  bottom,  the  jurisdiction  of 
the  country  over  it  necessarily  ends,  as  much  so  as  it  would  over  an 
island  which  should  sink  into  the  sea. 

In  this  case  it  appears  that  the  Golden  Gate  was  broken  up;  not  a 
vestige  of  the  vessel  remained.  Whatever  was  afterwards  done  with 
reference  to  property  once  on  board  of  her,  which  had  disappeared 
under  the  sea,  was  done  out  of  the  jurisdiction  of  the  United  States 
as  completely  as  though  the  steamer  had  never  existed. 

We  are  of  opinion,  therefore,  that  the  Circuit  Court  has  no  jurisdic- 
tion to  try  the  offence  charged,  even  if,  under  the  facts  admitted  by 
the  parties,  any  offense  was  committed.  According  to  the  stipulation, 
judgment  sustaining  the  demurrer  will  be,  therefore,  entered  and  the 
defendants  discharged. ^"^ 

5  6  "jji  England  and  America,  the  jurisdiction  is  generally  assumed  over  its 
citizens  in  respect  to  all  civil  acts,  transactions,  rights,  or  duties  done  or  arising 
abroad.  This  is  true,  even  though  the  act  be  a  tort,  and  though  it  amo4.int  to  a 
breach  of  the  peace.  Thus  a  British  subject  is  liable  to  a  civil  action  in  England 
for  an  assault  and  battery  committed  by  him,  say  in  Italy.  The  same  would  be 
true  in  the  United  States.  But  by  a  very  ancient  principle  of  the  English 
common  law,  adopted  in  this  country,  all  crimes  are  strictly  local,  and  the 
offenders  are  justiciable  only  in  the  countries  where  the  criminal  act  is 
done."    Pomeroy's  Int.  Law,  205. 

It  is,  however,  true  that  in  a  few  instances  English  and  American  courts 
take  jurisdiction  of  crimes  committed  by  their  respective  subjects  and  citi- 
zens beyond  their  territorial  limits  other  than  on  the  high  seas,  but  they  do  not, 
as  is  commonly  tlie  case  on  the  Continent,  try  foreigners  for  offences  against 
their  municipal  laws. 

"It  is.  however,  a  decided  and  settled  principle  in  the  English  and  American 
law,  that  the  penal  laws  of  a  country  do  not  reach  in  their  disabilities  or 
penal  effects,  beyond  the  jurisdiction  where  they  are  established.  FoUiott 
V.  Ogden,  1  H.  Black.  123,  135  [1789]  ;  Lord  Ellenborough,  Wolff  v.  Oxholm,  G 
M.  &  S.  99  [1817]  ;    Commonwealth  of  Massachusetts  v.  Green,  17  Mass.  514. 

539-543    [1822]  ;    Scoville  v.   Canfield,   14  Johns.  338,  440    [7  Am.  Dec.  ¥67 

(1817)]."    1  Kent,  Com.  38,  note  b. 
See  also,  Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.  265,  289-291,  8  Sup.  Ct. 

1370,  32  L.  Ed.  239  (1887),  and  Hall,  Int.  Law,  218-222. 


Ch.  4)  JUKISDICTION    OF   STATES  379 


In  re  ROSS. 

(United  States  -  Supreme  Court,  1890.     140  U.  S.  453,  11  Sup.  Ct.  807,  35 

L.  Ed.  581.) 

One  John  M.  Ross  served  in  1880  as  seaman  on  board  the'  American 
ship  Bullion,  in  the  waters  of  Japan.  While  the  vessel  lay  at  anchor 
in  tlie  harbor  of  Yokohama,  he  assaulted  Robert  Kelley,  second  mate 
of  the  Bullion,  with  a^  knife,  inflicting  in  his  neck  a  mortal  wound  of 
which  he  diedjn  a  few  minutes,  on  th^  deck  of  the  ship.  Ross  was 
at  once  arresj:ed_by  direction  of  the  master  of  the  vessel,  placed  in 
irons,  taken  ashore,  and  confined  in  jail  at  Yokohama.  The  master 
filed  a  complaint  with  the  American  Consul  General  of  Yokohama, 
charging  Ross  with  murder,  and  he  was  tried  and  convicted  thereof 
in  the  American  Consular  Court  of  Japan.  His  sentence  was  com- 
muted by  the  President  of  the  United  States  to  life  imprisonment  in 
the  Penitentiary  at  Albany.  In  1890  he  applied  to  the  United  States 
Circuit  Court  for  the  Northern  District  of  New  York  for  a  writ  of 
habeas  corpus  for  his  discharge,  which  was  duly  issued.  On  hearing, 
the  court  denied  the  motion  of  the  prisoner  for  his  discharge  a^d_ 
remanded  him  to  the  penilentiary.  From  that  order,  an  appeal  was 
taken  to  the  Supreme  Court. 

Mr.  Justice  Field,  after  stating  the  case,  delivered  the  opinion  of  the 
court.^^ 

The  Circuit  Court  did  not  refuse  to  discharge  the  petitioner  upon 
any  independent  conclusion  as  to  the  validity  of  the  legislation  of 
Congress  establishing  the  consular  tribunal  in  Japan,  and  the  trial 
of  Americans  for  oft'ences  committed  within  the  territory  of  that  coun- 
try, without  the  indictment  of  a  grand  jury,  and  without  a  trial  by  a 
petit  jury,  but  placed  its  decision  upon  the  long  and  uniform'  acquies- 
cence by  the  executive,  administrative,  and  legislative  departments  of 
the  government  in  the  validity  of  the  legislation.  Nor  did  the  Cir- 
cuit Court  consider  whether  the  status  of  the  petitioner  as  a  citizen 
of  the  United  States,  or  as  an  American  within  the  meaning  of  the 
treaty  with  Japan,  could  be  questioned,  while  he  was  a  seaman  of  an 
American  ship,  under  the  protection  of  the  American  flag,  but  simply 
stated  the  view  taken  on  that  subject  by  the  minister  to  Japan,  the 
State  Department,  and  the  President.     *     *     * 

The  Circuit  Court  might  have  found  an  additional  ground  for  not 
calling  in  question  the  legislation  of  Congress,  in  the  uniform  prac- 
tice of  civilized  governments  for  centuries  to  provide  consular  tribu- 
nals in  other  than  Christian  countries,  or  to  invest  their  consuls  with 
judicial  authority,  which  is  the  same  thing,  for  the  trial  of  their  own 
subjects  or  citizens  for  oft'ences  committed  in  those  countries,  as  well 
as  for  the  settlement  of  civil  disputes  between  them ;  and  in  the  uni- 

^'^  The  statement  of  facts  has  been  shortened  and  part  of  the  opinion  is 
omitted. 


380  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

form  recognition,  down  to  the  time  of  the  formation  of  our  govern- 
ment, of  the  fact  that  the  estabhshment  of  such  tribunals  was  among 
the  most  important  subjects  for  treaty  stipulations.  This  recognition 
of  their  importance  has  continued  ever  since,  though  the  powers  of 
those  tribunals  are  now  more  carefully  defined  than  formerly.  Dainese 
V.  Hale,  91  U.  S.  13,  23  L.  Ed.  190.     *     *     * 

We  do  not  understand  that  any  question  is  made  by  counsel  as  to 
its  power  in  this  respect.  His  objection  is  to  the  legislation  by  which 
such  treaties  are  carried  out,  contending  that,  so  far  as  crimes  of  a 
felonious  character  are  concerned,  the  same  protection  and  guarantee 
against  an  undue  accusation,  or  an  unfair  trial,  secured  by  the  Consti- 
tution to  citizens  of  the  United  States  at  home,  should  be  enjoyed  by 
them  abroad.  In  none  of  the  laws  which  have  been  passed  by  Con- 
gress to  give  effect  to  treaties  of  the  kind  has  there  been  any  attempt 
to  require  indictment  by  a  grand  jury  before  one  can  be  called  upon 
to  answer  for  a  public  offence  of  that  grade  committed  in  those  coun- 
tries, or  to  secure  a  jury  on  the  trial  of  the  offence.  Yet  the  laws  on 
that  subject  have  been  passed  without  objection  to  their  constitution- 
ality. Indeed,  objection  on  that  ground  was  never  raised  in  any 
quarter,  so  far  as  we  are  informed,  until  a  recent  period. 

It  is  now,  -however,  earnestly  pressed  by  counsel  for  the  petitioner, 
but  we  do  not  think  it  tenable.  By  the  Constitution  a  government  is 
ordained  and  established  "for  the  United  States  of  America,"  and  not 
for  countries  outside  of  their  limits.  The  guarantees  it  affords  against 
accusation  of  capital  or  infamous  crimes,  except  by  indictment  or  pre- 
sentment by  a  grand  jury,  and  for  an  impartial  trial  by  a  jury  when 
thus  accused,  apply  only  to  citizens  and  others  within  the  United 
States,  or  who  are  brought  there  for  trial  for  alleged  offences  com- 
mitted elsewhere,  and  not  to  residents  or  temporary  sojourners  abroad. 
Cook  V.  United  States,  138  U.  S.  157,  181,  11  Sup.  Ct.  268,  34  L.  Ed. 
906.  The  Constitution  can  have  no  operation  in  another  country. 
\\'lien,  therefore,  the  representatives  or  officers  of  our  government  are 
permitted  to  exercise  authority  of  any  kind  in  another  country,  it  must 
be  on  such  conditions  as  the  two  countries  may  agree,  the  laws  of 
neither  one  being  obligatory  upon  the  other.     *     *     * 

We  turn  now  to  the  treaties  between  Japan  and  the  United  States. 

The  treaty  of  June  17,  1857,  executed  by  the  consul  general  of  the 
United  States  and  the  governors  of  Simoda,  is  the  one  which  first  con- 
ceded to  the  American  consul  in  Japan  authority  to  try  Americans 
committing  offences  in  that  country.  Article  IV  of  that  treaty  is  as 
follows : 

"Art.  IV.  Americans  committing  offences  in  Japan  shall  be  t^ied 
by  the  American  consul  general  or  consul,  and  shall  be  punished 
according  to  American  laws.  Japanese  committing  offences  against 
Americans  shall  be  tried  by  the  Japanese  authorities  and  punished 
according  to  Japanese  laws."     11  Stat.  723.     *     *     * 

Our  government  has  always  treated  Article  IV  of  the  treaty  of  1857 


Ch.  4)  JURISDICTION   OF   STATES  381 

as  continuing  in  force,  and  it  is  published  as  such  in  the  United  States 
Consular  Regulations,  issued  in  1888.    Appendix  No.  1,  p.  313.  *  *  * 

The  legislation  of  Congress  to  carry  into  effect  the  treaty  with 
Japan  is  found  in  the  Revised  Statutes,  in  sections  most  of  which 
apply  equally  to  treaties  with  China,  Siam,  Egypt,  and  Madagascar 
(sections  4083^1091  [Comp.  St.  §§  7633-7641]).'  Confining  ourselves 
to  the  treaty  with  Japan  only,  we  find  that  the  legislation  secures  a 
regular  and  fair  trial  to  Americans  committing  offences  within  that 
empire. 

It  enacts  that  the  minister  and  consuls  of  the  United  States,  ap- 
pointed to  reside  there,  shall,  in  addition  to  other  powers  and  duties 
imposed  upon  them  respectively,  be  invested  with  the  judicial  author- 
ity therein  described,  which  shall  appertain  to  their  respective  ofiices 
and  be  a  part  of  the  duties  belonging  thereto,  so  far  as  the  same  is 
allowed  by  treaty;  and  empowers  them  to  arraign  and  try,  in  the 
manner  therein  provided,  all  citizens  of  the  United  States  charged 
with  offences  against  law  committed  in  that  country,  and  to  sentence 
6uch  offenders  as  therein  provided,  and  to  issue  all  suitable  and  neces- 
sary process  to  carry  their  authority  into  execution.  It  declares  that 
their  jurisdiction  in  both  criminal  and  civil  matters  shall  in  all  cases 
be  exercised  and  enforced  in  conformity  with  the  laws  of  the  United 
States,  which,  so  far  as  necessary  to  execute  the  treaty  and  suitable 
to  carry  it  into  effect,  are  extended  over  all  citizens  of  the  United 
States  in  Japan,  and  over  all  others  there  to  the  extent  that  the  terms 
of  the  treaty  justify  or  require.  It  also  provides  that  where  such 
laws  are  not  adapted  to  the  object,  or  are  deficient  in  the  provisions 
necessary  to  furnish  suitable  remedies,  the  common  law  and  the  law 
of  equity  and  admiralty  shall  be  extended  in  like  manner  over  such 
citizens  and  others;  and  that  if  neither  the  common  law,  nor  the  law 
of  equity,  or  admiralty,  nor  the  statutes  of  the  United  States,  furnish 
appropriate  and  sufficient  remedies,  the  minister  shall,  by  decrees  and 
regulations,  which  shall  have  the  force  of  law,  supply  such  defects 
and  deficiencies.  Each  of  the  consuls  is  authorized,  upon  facts  within 
his  own  knowledge,  or  which  he  has  good  reason  to  believe  true,  or 
upon  complaint  made  or  information  filed  in  writing  and  authenti- 
cated in  such  way  as  shall  be  prescribed  by  the  minister,  to  issue  his 
warrant  for  the  arrest  of  any  citizen  of  the  United  States  charged 
with  committing  in  the  country  an  offence  against  law ;  and  to  arraign 
and  try  any  such  offender;  and  to  sentence  him  to  punishment  in  the 
manner  therein  prescribed. 

The  legislation  also  declares  that  insurrection  or  rebellion  against 
the  government,  with  intent  to  subvert  the  same,  and  murder,  shall 
be  punishable  with  death,  but  that  no  person  shall  be  convicted 
thereof  unless  the  consul  and  his  associates  in  the  trial  all  concur 
in  the  opinion,  and  the  minister  approves  of  the  conviction.  It  also 
provides  that  whenever  in  any  case  the  consul  is  of  opinion  that,  by 
reason  of  the  legal  questions  which  may  arise  therein,  assistance  will 


382  RIGHTS  AND   DUTIES  OF   NATIONS   IN  TIME  OF   PEACE       (Part  1' 

be  useful  to  him,  or  that  a  severer  punishment  than  previously  speci- 
fied in  certain  cases  will  be  required,  he  shall  summon  to  sit  with 
him  on  the  trial  one  or  more  citizens  of  the  United  States,  not  ex- 
ceeding four,  and  in  capital  cases  not  less  than  four,  who  shall  be 
taken  by  lot  from  a  list  which  has  been  previously  submitted  to  and 
approved  by  the  minister,  and  shall  be  persons  of  good  repute  and 
competent  for  the  duty. 

The  jurisdiction  of  the  consular  tribunal,  as  is  thus  seen,  is  to  be 
exercised  and  enforced  in  accordance  with  the  laws  of  the  United 
States ;  and  of  course  in  pursuance  of  them  the  accused  will  have  an 
opportunity  of  examining  the  complaint  against  him,  or  will  be  pre- 
sented with  a  copy  stating  the  offence  he  has  committed,  will  be 
•  entitled  to  be  confronted  with  the  witnesses  against  him  and  to  cross- 
examine  them,  and  to  have  the  benefit  of  counsel;  and,  Indeed,  will 
have  the  benefit  of  all  the  provisions  necessary  to  secure  a  fair  trial 
before  the  consul  and  his  associates.  The  only  complaint  of  this  leg- 
islation made  by  counsel  is  that,  in  directing  the  trial  to  be  had  be- 
fore the  consul  and  associates  summoned  to  sit  with  him,  it  does  not 
require  a  previous  presentment  or  indictment  by  a  grand  jury,  and 
does  not  give  to  the  accused  a  petit  jury.  The  want  of  such  clauses, 
as  affecting  the  validity  of  the  legislation,  we  have  already  consid- 
ered. It  is  not  pretended  that  the  prisoner  did  not  have,  in  other 
respects,  a  fair  trial  in  the  Consular  Court. 

It  is  further  objected  to  the  proceedings  in  the  Consular  Court  that 
the  oft'ence  with  which  the  petitioner  was  charged,  having  been  com- 
mitted on  board  of  a  vessel  of  the  United  States  in  Japanese  waters, 
was  not  triable  before  the  Consular  Court;  and  that  the  petitioner, 
being  a  subject  of  Great  Britain,  was  not  within  the  jurisdiction  of 
that  court.     These  objections  we  will  now  proceed  to  consider. 

The  argument  presented  in  support  of  the  first  of  these  positions  is 
briefly  this.  Congress  has  provided  for  the  punishment  of  murder 
committed  upon  the  high  seas,  or  any  arm  or  bay  of  the  sea  within 
the  admiralty  and  maritime  jurisdiction  of  the  United  States,  and  out 
of  the  jurisdiction  of  any  particular  State;  and  has  provided  that  the 
trial  of  all  offences  committed  upon  the  high  seas,  out  of  the  juris- 
diction of  any  particular  State,  shall  be  in  the  district  where  the 
oft'ender  is  found  or  into  which  he  is  first  brought.  The  term  "high 
seas"  includes  waters  on  the  sea  coast  without  the  boundaries  of  low- 
water  mark;  and  the  waters  of  the  port  of  Yokohama  constitute, 
within  the  meaning  of  the  statute,  high  seas.  Therefore  it  is  con- 
tended that,  although  the  ship  Bullion  was  at  the  time  lying  in  those 
waters,  the  offence  for  which  the  appellant  was  tried  and  convicted 
was  committed  on  the  high  seas  and  within  the  jurisdiction  of  the 
domestic  tribunals  of  the  United  States,  and  is  not  punishable  else- 
where. In  support  of  this  position  it  is  assumed  that  the  jurisdic- 
tion of  the  Consular  Court  is  limited  to  offences  committed  on  land, 


Ch.  4)  JURISDICTION   OF   STATES  383 

within  the  territory  of  Japan,  to  the  exclusion  of  offences  committed 
on  waters  within  that  territory. 

There  is,  as  it  seems  to  us,  an  obvious  answer  to  this  argument. 
The  jurisdiction  to  try  offences  committed  on  the  high  seas  in  the 
district  where  the  offender  may  be  found,  or  into  which  he  may  be 
first  brought,  is  not  exckisive  of  the  jurisdiction  of  the  consular  tribu- 
nal to  try  a  similar  offence  when  committed  in  a  port  of  a  foreign 
country  in  which  that  tribunal  is  established,  and  the  offender  is  not 
taken  to  the  United  States.  There  is  no  law  of  Congress  compelling 
the  master  of  a  vessel  to  carry  or  transport  him  to  any  home  port 
when  he  can  be  turned  over  to  a  Consular  Court  having  jurisdiction  of 
similar  offences  committed  in  the  foreign  country.  7  Op.  Attys.  Gen. 
722.  The  provisions  conferring  jurisdiction  in  capital  cases  upon 
the  consuls  in  Japan,  when  the  oft'ence  is  committed  in  that  coun- 
try, are  embodied  in  the  Revised  Statutes,  with  the  -provisions  as 
to  the  jurisdiction  of  domestic  tribunals  over  such  offences  committed 
on  the  high  seas ;  and  those  statutes  were  re-enacted  together,  and.  as 
re-enacted,  went  into  operation  at  the  same  time.  To  both  effect 
must  be  given  in  proper  cases,  where  they  are  applicable.  We  do  not 
adopt  the  limitation  stated  by  counsel  to  the  jurisdiction  of  the  con- 
sular tribunal,  that  it  extends  only  to  offences  committed  on  land. 
Neither  the  treaty* nor  the  Revised  Statutes  to  carry  them  into  effect 
contain  any  such  limitation.  The  latter  speak  of  offences  committed 
in  the  country  of  Japan — meaning  within  the  territorial  jurisdiction 
of  that  country — which  includes  its  ports  and  navigable  waters  as 
well  as  its  lands. 

The  position  that  the  petitioner,  being  a  subject  of  Great  Britain, 
was  not  within  the  jurisdiction  of  the  Consular  Court,  is  more  plau- 
sible, but  admits,  we  think,  of  a  sufficient  answer.  The  national 
character  of  the  petitioner,  for  all  the  purposes  of  the  consular  juris- 
diction, was  determinable  by  his  enlistment  as  one  of  the  crew  of 
the  American  ship  Bullion.  By  such  enlistment  he  becomes  an  Amer- 
ican seaman — one  of  an  American  crew  on  board  of  an  American 
vessel — and  as  such  entitled  to  the  protection  and  benefits  of  all  the 
laws  passed  by  Congress  on  behalf  of  American  seamen,  and  subject 
to  all  their  obligations  and  liabilities.  Although  his  relations  to  the 
British  Government  are  not  so  changed  that,  after  the  expiration  of 
his  enlistment  on  board  of  the  American  ship,  that  government  may 
not  enforce  his  obligation  of  allegiance,  and  he  on  the  other  hand 
may  not  be  entitled  to  invoke  its  protection  as  a  British  subject,  that 
relation  was  changed  during  his  service  of  seaman  on  board  of  the 
American  ship  under  his  enlistment.  He  could  then  insist  upon  treat- 
ment as  an  American  seaman,  and  invoke  for  his  .protection  all  the 
power  of  the  United  States  which  could  be  called  into  exercise  for  the 
protection  of  seamen  who  were  native  born.  He  owes  for  that  time 
to  the  country  to  which  the  ship  on  which  he  is  serving  belongs,  a 
temporary  allegiance,  and  must  be  held  to  all  its  responsibilities.     The 


384  RIGHTS   AND   DUTIES  OF  NATIONS   IN  TIME  OF  PEACE       (Part  1 

question  has  been  treated  more  as  a  political  one  for  diplomatic  ad- 
justment than  as  a  legal  one  to  be  determined  by  the  judicial  tribunals, 
and  has  been  the  subject  of  correspondence  between  our  government 
and  that  of  Great  Britain.     *     *     * 

The  views  expressed  by  the  Department  of  State,  quoted  above,  are 
in  harmony  with  the  doctrine  uniformly  asserted  by  our  government 
against  the  claim  by  England  of  a  right  to  take  its  countrymen  from 
the  deck  of  an  American  merchant  vessel  and  press  them  into  its 
naval  service.  It  is  a  part  of  our  history  that  the  assertion  of  this 
claim,  and  its  enforcement  in  many  instances,  caused  a  degree  of  irri- 
tation among  our  people  which  no  conduct  of  any  other  country  has 
ever  produced.  Its  enforcement  was  deemed  a  great  indignity  upon 
this  country  and  a  violation  of  our  right  of  sovereignty,  our  vessels 
being  considered  as  parts  of  our  territory.  It  led  to  the  war  of  1812, 
and  although  that  war  closed  without  obtaining  a  relinquishment  of 
the  claim,  its  further  assertion  was  not  attempted.  At  last,  in  a 
communication  by  Mr.  Webster,  then  Secretary  of  State,  to  Lord 
Ashburton,  the  special  British  minister  to  this  country,  on  the  8th 
of  August,  1842,  the  claim  was  repudiated,  and  the  announcement 
made  that  it  would  no  longer  be  allowed  by  our  government  and  must 
be  abandoned.  The  conclusion  of  Mr.  Webster's  communication  bears 
upon  the  question  before  us.  After  referring  to  1:he  claim  of  Great 
Britain,  and  demonstrating  the  injustice  of  the  position  and  its  viola- 
tion of  national  rights,  he  said  :  "In  the  early  disputes  betvv^een  the  tv/o 
governments,  on  this  so  long-contested  topic,  the  distinguished  person 
to  whose  hands  were  first  intrusted  the  seals  of  this  department  declar- 
ed, that  'the  simplest  rule  will  be,  that  the  vessel  being  American  shall 
be  evidence  that  the  seamen  on  board  are  such.'  Fifty  years'  expe- 
rience, the  utter  failure  of  many  negotiations,  and  a  careful  reconsidera- 
tion now  had  of  the  whole  subject  at  a  moment  when  the  passions  are 
laid,  and  no  present  interest  or  emergency  exists  to  bias  the  judgment, 
have  convinced  this  government  that  this  is  not  only  the  simplest  and 
best,  but  the  only  rule  which  can  be  adopted  and  observed  consistently 
with  the  rights  and  honor  of  the  United  States,  and  the  security  of  their 
citizens.  That  riile  announces,  therefore,  what  will  hereafter  be  the 
principle  maintained  by  their  government.  In  every  regularly  docu- 
mented American  merchant  vessel,  the  crew  who  navigate  it  will  find 
their  protection  in  the  flag  which  is  over  them."  Webster's  Works,  Vol. 
VI,  p.  325. 

This  rule,  that  the  vessel  being  American  is  evidence  that  the  sea- 
men on  board  are  such,  is  now  an  established  doctrine  of  this  country ; 
and  in  support  of  it  there  is  with  the  American  people  no  diversity  of 
opinion  and  can  be  no  division  of  action. 

We  are  satisfied  that  the  true  rule  of  construction  in  the  present  case 
was  adopted  by  the  Department  of  State  in  the  correspondence  with  the 
EngHsh  Government,  and  that  the  action  of  the  consular  tribunal  in 


Ch.  4)  JURISDICTION   OF   STATES  385 

taking  jurisdiction  of  the  prisoner  Ross,  though  an  English  subject,  for 
the  offence  committed,  was  authorized.  While  he  was  an  enlisted  sea- 
man on  the  American  vessel,  which  floated  the  American  flag,  he  was, 
within  the  meaning  of  the  statute  and  the  treaty,  an  American,  under 
the  protection  and  subject  to  the  laws  of  the  United  States  equally 
with  the  seaman  who  was  native  born.  As  an  American  seaman  he 
could  have  demanded  a  trial  before  the  Consular  Court  as  a  matter  of 
right,  and  must  therefore  be  held  subject  to  it  as  a  matter  of  obliga- 
tion. 

We  have  not  overlooked  the  objection  repeatedly  made  and  earnest- 
ly pressed  by  counsel,  that  the  consular  tribunal  is  a  court  of  limited 
jurisdiction.  It  is  undoubtedly  a  court  of  that  character,  limited  by 
the  treaty  and  the  statutes  passed  to  carry  it  into  effect,  and  its  juris- 
diction cannot  be  extended  beyond  their  legitimate  meaning.  But  their 
construction  is  not,  therefore,  to  be  so  restricted  as  to  practically  de- 
feat the  purposes  to  be  accomplished  by  the  treaty,  but  rather  so  as 
to  give  it  full  operation,  in  order  that  it  may  not  be  a  vain  and  nugatory 
act. 

It  is  true  that  the  occasion  for  consular  tribunals  in  Japan  may 
hereafter  be  less  than  at  present,  as  every  year  that  country  pro- 
gresses in  civilization  and  in  the  assimilation  of  its  system  of  judi- 
cial procedure  to  that  of  Christian  countries,  as  well  as  in  the  im- 
provement of  its  penal  statutes ;  but  the  system  of  consular  tribunals 
which  have  a  general  similarity  in  their  main  provisions,  is  of  the  high- 
est importance,  and  their  establishment  in  other  than  Christian  coun- 
tries, where  our  people  may  desire  to  go  in  pursuit  of  commerce,  will 
often  be  essential  for  the  protection  of  their  persons  and  property. 

We  have  not  considered  the  objection  to  the  discharge  of  the  pris- 
oner on  the  ground  that  he  accepted  the  conditional  pardon  of  the 
President.  If  his  conviction  and  sentence  were  void  for  want  of 
jurisdiction  in  the  consular  tribunal,  it  may  be  doubtful  whether  he 
was  estopped,  by  his  acceptance  of  the  pardon,  from  assailing  their 
validity ;  but  into  that  inquiry  we  need  not  go,  for  the  Consular  Court 
having  had  jurisdiction  to  try  and  sentence  him,  there  can  be  no  ques- 
tion as  to  the  binding  force  of  the  acceptance. 

Order  affirmed."*^ 

08  See  the^IilOeniiusJIaae,.  120  U.  S.  1,  7  Sup.  Ct.  385.  30  L.  Ed.  565  (18S7), 
JWhich  examines  the  question  of  jurisdiction  of  consuls  within  countries  where 
Pfextraterritoriality  in.  its  technical  sense  does  not  exist. 

•'  Mr.  Chief  Justice  Waite  discussed,  in  the  course  of  his  opinion,  the  cases  of 
The  Newton  and  The  Sally,  decided  by  the  Council  of  State  of  France,  6 
Sirey,  pt.  2,  501  (1S06)  ;  The  Jally  (commonly  called  The  Tempest),  Court  of 
Cassation  of  France.  Sirey,  1S4  (1859).  Both  of  these  cases  are  more  easily 
found  in  Ortolan,  Diplomatie  de  la  Mer,  I,  4.50. 

See,  also,  the  case  of  The  Ani^mone,  Supreme  Court  of  Justice  of  Mexico,  3 
Clunet,  Journal  du  Droit  International  Prive  et  de  la  Jurisprudence  Coni- 
paree,  413  (1876),  holding  that  a  nuu'der  of  a  French  citizen  by  a  French- 
man, upon  a  French  merchant  vessel  at  anchor  in  a  Mexican  port,  does  not 

Scott  Int. Law — 25 


386  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  I' 

necessarily  disturb  the  peace  of  tliat  port,  and  that  the  Mexican  courts  will 
not,  in  such  a  case,  assume  jurisdiction. 

By  Treaty  of  November  22.  1S94,  arts.  17,  19,  the  United  States  consented 
to  the  abrogation  of  consular  jurisdiction  in  Japan,  and  on  July  17,  1899, 
its  Consular  Courts  ceased  to  exist. 

"As  a  matter  of  law,  foreign  consuls  have  no  jurisdiction  within  the  terri- 
tory of  the  United  States,  except  by  force  of  treaty  stipulations.  See  Wheat. 
Int.  Law,  217.  The  judicial  power  of  a  consul  depends  upon  the  treaties  be- 
tween the  nations  concerned  and  the  laws  of  the  nation  the  consul  represents. 
Dainese  v.  Hale,  91  U.  S.  13  [23  L.  Ed.  190  (1875)].  See  The  El  wine  Kreplin, 
9  Blatchf.  438  [Fed.  Cas.  No.  4,426  (1872)].  Consular  jurisdiction  depends 
on  the  general  law  of  nations,  subsisting  treaties  between  the  two  govern- 
ments affected  by  it,  and  upon  the  obligatory  fox'ce  and  activity  of  the  rule 
of  reciprocity.     2  Op.  Atty.  Gen.  378. 

"We  conclude,  therefore,  that  neither  under  international  law,  nor  under 
the  statute  law  of  the  United  States,  has  a  consular  officer  of  a  foreign  gov- 
ernment a  right  to  sit  as  judge  or  arbitrator  within  our  territory,  and  render 
decrees  or  orders  affecting  personal  liberty,  which  orders  or  decrees  the 
courts,  of  the  United  States  are  authorized  or  required  to  enforce,  unless  the 
consent  of  the  United  States  to  such  jurisdiction  has  been  given  either  by 
express  statute  or  treaty  stipulation." 

Pardee,  J.,  in  Re  Aubrey   (C.  C.)  26  Fed.  848,  851  (1885). 

For  the  question  of  consular  jurisdiction  in  Japan,  in  so  far  as  Gr^at 
Britain  was  concerned,  see  Imperial  Japanese  Government  v.  Peninsular  & 
Oriental  Steam  Navigating  Co.,  L.  R.   [1895]  App.  Cas.  644. 

Consular  jurisdiction  in  Japan  has  been  renounced  by  Great  Britain  and 
by  all  of  the  other  powers  in  whose  favor  it  had  existed.  The  Island  Empire 
of  Japan  is,  therefore,  in  law  the  equal  of  all  other  nations,  and  in,  fact 
it  is  one  of  the  Great  Powers. 

In  China,  consular  jurisdiction  still  exists.  It  is  exercised  by  the  United 
States  Court  for  China  created  by  Act  of  Congress  of  June  30,  1906,  c.  3934, 
34  Stat.  pt.  1,  p,  814  (U.  S.  Comp.  St.  §  7687  et  seq.) 

By  section  1  of  this  act  (Comp.  St.  §  7687)  the  court  was  given  "exclusive 
jurisdiction  in  aU  cases  and  judicial  proceedings  whereof  jurisdiction. may 
now  be  exercised  by  United  States  consuls  and  ministers  by  law  and  by 
virtue  of  treaties  between  the'United  States  and  China,  except  in  so  far 
as  the  said  jurisdiction  is  qualified  by  section  two  of  this  act." 

Section  4  of  the  same  act  (Comp.  St.  §  7690)  provides:  "The  jurisdiction 
of  said  United  States  Court,  both  original  and  on  appeal,  in  civil  and 
criminal  matters,  and  also  the  jurisdiction  of  the  Consular  Courts  in  China, 
shall  in  all  cases  be  exercised  in  conformity  with  said  treaties  and  the  laws 
of  the  United  States  now  in  force  in  reference  to  the  American  Consular  Courts 
in  China,  and  all  judgments  and  decisions  of  said  Consular  Courts,  and  all 
decisions,  judgments,  and  decrees  of  said  United  States  Court,  shall  be  en- 
forced in  accordance  with  said  treaties  and  laws.  But  in  all  such  cases 
when  such  laws  are  deficient  in  the  provisions  necessary  to  give  jurisdiction 
or  to  furnish  suitable  I'emedies,  the  common  law  and  the  law  as  established 
by  the  decisions  of  the  courts  of  the  United  States  shall  be  applied  by  said 
court  in  its  decisions  and  shall  govern  the  same  subject  to  the  terms  of  any 
treaties  between  the  United  States  and  China." 

On  the  jurisdiction  and  procedure  of  this  court,  see  Biddle  v.  United  States, 
156  Fed.  739,  M  C.  C.  A.  415  (1907), 

On  the  question  of  extraten-itorial  jurisdiction  in  general,  and  particularly 
as  it  affects  the  United  States,  see  Frank  E.  Hinckley,  American  Consular 
Jurisdiction  in  the  Orient  (1906). 

This  admirable  volume,  not  only  gives  the  history,  but  states  the  procedure, 
and  it  contains,  in  an  appendix,  the  relevant  provisions  of  treaties  and 
statutes  of  the  United  States. 

ScoTT  Int.Law 


Ch.  4)  ,  JURISDICTION   OF   STATES  387 


THE  CUTTING  CASE. 

(Bravos  District  Court,  Chihuahua,  Mexico,  1888.    John  Bassett  Moore's  Re- 
port on  Extraterritorial  Crime  and  The  Cutting  Case,  9.) 

In  view  of  the  present  suit  instituted  against  A.  K.  Cutting,  who  de- 
clares himself  to  be  unmarried,  40  years  of  age,  a  native  of  the  state 
of  New  York,  a  resident  of  this  town,  and  editor  of  the  newspaper  El 
Centinela,  for  the  offense  of  defamation: 

In  view  of  the  preliminary  statement  of  the  accused,  the  petition  of 
the  district  attorney,  the  statement  made  by  the  complainant,  Emigdio 
Medina  (the  civil  party  to  the  suit),  the  defense  of  the  prisoner's  attor- 
ney, Jesus  E.  Islas,  and  all  else  which  appears  from  the  proceedings  and 
was  proper  to  be  seen : 

It  appears,  1.  That  in  No.  14  of  the  newspaper  called  El  Centinela, 
published  in  this  place,  under  date  of  the  6th  of  June  last,  there  ap- 
peared a  local  item  in  English,  in  which  there  was  criticised  as  fraudu- 
lent a  prospectus  published  in  El  Paso,  Texas,  announcing  the  appear- 
ance of  a  newspaper  called  Revista  Internacional. 

It  appears,  2.  That  Emigdio  Medina,  considering  himself  alluded 
to  and  aggrieved  by  that  paragraph,  appeared  before  the  second  alcalde, 
acting  in  turn  as  criminal  judge  in  this  town,  and  asked  for  a  judgment 
of  conciliation  against  A.  K.  Cutting,  as  responsible  editor  of  El 
Centinela. 

It  appears,  3.  That  the  parties  being  present  before  the  mediating 
judge,  agreed  on  the  pubHcation  in  the  same  newspaper.  El  Centinela, 
of  a  retraction  which  was  written  by  Medina  and  corrected  by  Cutting, 
the  publication  to  be  made  four  times  in  English,  and,  if  Mr.  A.  N. 
Daguerre,  an  associate  editor  of  the  paper,  would  allow  it,  also  in 
Spanish. 

It  appears,  4.  That  Cutting,  instead  of  complying  with  the  agree- 
ment as  stipulated  in  the  conciliation,  published  on  the  20th  of  the 
same  month  of  June  a  retraction  only  in  English  in  El  Centinela,  in 
small  type  and  with  material  errors  that  rendered  it  almost  unintel- 
ligible, and  published  on  the  same  day  a  notice  or  communication  in  the 
El  Paso  Sunday  Herald,  in  which  he  ratified  and  enlarged  the  defama- 
tory statements  which  were  published  against  Medina,  and  denounced 
as  contemptible  the  agreement  of  conciliation  which  had  taken  place 
before  the  second  alcalde  of  this  town. 

It  appears,  5.  That  the  plaintiff  then  appeared  and  in  due  form  ac- 
cused Cutting  of  the  penal  offense  of  defamation,  in  conformity  with 
articles  643  and  646,^^  section  2  of  the  Penal  Code,  for  which  cause  the 
corresponding  order  of  arrest  was  issued. 

^^  Article  646  provides  that  "defamation"  shall  be  "punished  with  a  penalty 
of  from  six  months'  dc^^cntion  to  two  years'  imprisonment  and  a  tine  of 
from  $300  to  $2,fKX>,  when  there  is  imputed  a  crime,  act,  or  vice,  which  may 
occasion  to  the  offended  party  dishonor  or  serious  prejudice." 


388  RIGHTS  AND   DUTIES  OF  NATIONS  IN  TIME  OF  PEACE       (Part  1 

It  appears,  6.  That  on  the  22d  of  the  same  month  the  plaintiff  en- 
larged the  accusation,  stating  that  although  the  newspaper,  the  El  Paso 
Sunday  Herald,  is  published  in  Texas,  Cutting  had  had  circulated  a 
great  number  in  this  town  and  in  the  interior  of  the  Republic,  it  having 
been  read  by  more  than  three  persons,  for  which  reason  an  order  had 
been  issued  to  seize  the  copies  that  were  still  in  the  office  of  the  said 
Cutting. 

It  appears,  7.  That  according  to  law  the  preliminary  statement  of 
the  accused  was  taken,  in  which  he  denied  the  jurisdiction  of  the  court, 
on  the  ground  that  the  act  had  been  committed  in  Texas,  placing  him- 
self under  the  protection  of  the  consul  of  the  United  States,  and  the 
warrant  for  his  arrest  in  due  form  was  ordered  to  be  issued  and  com- 
municated to  the  proper  parties. 

It  appears,  8.  That,  having  followed  the  examination  through  all 
'its  details,  the  accused  insisted  on  his  former  answer,  and  when  noti- 
fied to  appoint  a  person  to  defend  him,  as  the  citizen  licentiate,®"  Jose 
Maria  Barajos,  had  declined  to  serve,  he  refused  to  do  so,  whereupon 
the  citizen,  A.  N.  Daguerre,  a  partner  of  the  said  Cutting  in  the  editing 
of  El  Centinela,  was  officially  appointed;  but,  as  he  also  resigned,  the 
appointment  fell  upon  the  citizen,  Jesus  E.  Islas,  who  conducted  the 
case  up  to  the  presentation  of  his  brief  of  defense. 

It  appears,  9.  That,  in  virtue  of  the  opinion  of  the  district  attor- 
ney that  the  charge  was  well  founded,  the  suit  was  duly  advertised  in 
the  office  of  the  clerk  of  the  court  for  the  term  provided  in  article  409,®^ 
as  amended,  of  the  Code  of  Criminal  Procedure,  and  that  time  having 
elapsed  without  any  exception  being  filed,  the  parties  to  the  controversy 
were  summoned  for  the  discussion  which  took  place  on  the  5th  instant 
in  the  form  and  terms  prescribed  by  the  same  code,  the  proceedings 
closing  with  the  summons  for  sentence. 

Considering,  therefore,  1.  That,  in  conformity  with  article  121  of 
the  Code  of  Criminal  Procedure,  the  foundation  of  the  criminal  pro- 
ceeding is  the  proof  of  the  act  which  the  law  accounts  a  penal  offense, 
and  that  in  the  present  case  the  existence  of  this  fact  is  fully  proved, 
as  it  consists  of  the  publication  appearing  in  El  Centinela  on  the  6th  of 
June  last,  characterizing  as  fraudulent  the  prospectus  which  was  is- 
sued to  announce  the  publication  of  the  Revista  Internacional. 

Considering,  2.  That  although  it  is  true  that  there  was  in  regard  to 
this  matter  an  act  of  conciliation,  which  would  have  satisfied  the  plain- 
tiff if  it  had  been  carried  out,  it  is  also  true  that  the  terms  of  this  act 
were  not  complied  with,  and  that,  for  this  reason,  the  responsibility  of 
the  penal  offense  remains  the  same. 

Considering,  3.     That  the  proof  of  the  lack  of  fulfillment  of  the 

^°  May  here  be  translated  as  attorney  at  law. 

®i  Article  409  (amended)  provides  that,  after  the  preliminary  examination 
and  the  formulation  of  the  charge  by  the  district  attorney,  the  proceedings 
shall  be  placed  in  the  office  of  the  clerk  of  the  court  for  three  days,  in  order 
that  exceptions  may  be  taken  by  the  defense. 


Ch.  4)  JURISDICTION   OF  STATES  389 

compromise  entered  into  in  the  judgment  of  conciliation  is  actually  in 
the  communication  published  by  Cutting  in  the  El  Paso  Sunday  Herald, 
in  which  he  ratified  the  original  assertion  that  Emigdio  Medina  was  a 
fraud  and  a  swindler,  and  at  the  same  time  in  the  article  published  in 
El  Centinela  of  the  same  date,  leaving  out  all  the  capital  letters  and  put- 
ting the  name  of  Medina  in  microscopic  type  in  order  to  make  the  read- 
ing of  it  difficult. 

Considering,  4.  That  ratification,  according  to  the  dictionary  of  Es- 
criche,  is  the  confirmation  and  sanction  of  what  has  been  said  or  done, 
it  is  retroactive  and  by  consequence  does  not  constitute  an  act  differ- 
ent from  that  to  which  it  refers:  "Ratihabitio  retrotrahitur  ad  ini- 
tium,"  nor  does  new  responsibility,  distinct  from  that  which  originally 
existed,  arise  therefrom. 

Considering,  5.  That  this  being  so,  the  criminal  responsibility  of 
Cutting  arose  from  the  article  published  in  El  Centinela,  issued  in  this 
town,  which  arrticle  was  ratified  in  the  Texas  newspaper,  which  rati- 
fication, however,  did  not  constitute  a  new  penal  oflfense  to  be  punished 
with  a  different  penalty  from  that  which  was  applicable  to  the  first  pub- 
lication. 

Considering,  6.  That  even  on  the  supposition,  not  admitted,  that  the 
defamation  .arose  from  the  communication  published  on  the  20th  of 
June  in  the  El  ?aso  Sunday  Herald,  article  186  of  the  Mexican  Penal 
Code  provides  that — 

"Penal  offenses  committed  in  a  foreign  country  by  a  Mexican  against 
Mexicans  or  foreigners,  or  by  a  foreigner  against  Mexicans,"  may  be 
punished  in  the  Republic  and  according  to  its  laws,  subject  to  the  fol- 
lowing conditions : 

1.  That  the  accused  be  in  the  Republic,  whether  he  came  voluntarily 
or  has  been  brought  by  extradition  proceedings ;  2.  That  if  the  oft"end- 
ed  party  be  a  foreigner,  he  shall  have  made  proper  legal  complaint ;  3. 
That  the  accused  shall  not  have  been  definitively  tried  in  the  country 
where  the  offense  was  committed,  or,  if  tried,  that  he  shall  not  have 
been  acquitted,  included  in  an  amnesty,  or  pardoned ;  4.  That  the 
breach  of  law  of  which  he  is  accused  shall  have  the  character  of  a  penal 
oft'ense  both  in  the  country  in  which  it  was  committed  and  in  the  Re- 
public; 5.  That  by  the  laws  of  the  Republic  the  offense  shall  be 
subject  to  a  severer  penalty  than  that  of  "arresto  mayor" — requisites 
which  have  been  fully  met  in  the  present  case :  for  Cutting  was  arrested 
in  the  territory  of  the  Republic ;  there  is  complaint  from  a  proper  legal 
source — that  of  Medina,  who  presented  his  complaint  in  the  form 
prescribed  by  law ;  the  accused  has  not  been  definitively  tried,  nor 
acquitted,  nor  included  in  an  amnesty,  nor  pardoned  in  the  country  in 
which  he  committed  the  oft'ense ;  the  penal  offense  of  which  Cutting 
is  accused  has  that  character  in  the  countiy  in  which  it  was  committed 
and  in  the  Republic,  as  can  be  seen  in  the  penal  code  in  force  in  the 
State  of  Texas,  articles  616,  617,  618,  and  619,  and  in  the  Penal  Code 


390  RIGHTS  AND   DUTIES  OF   NATIONS   IN  TIME  OF  PEACE       (Part  1 

of  the  State  of  Chihuahua,  articles  642  and  646;  and  according  to  this 
latter  article,  section  2,  the  breach  of  law  in  question  is  subject  to  a 
heavier  penalty  than  that  of  "arresto  mayor." 

Considering,  7.  That  according  to  the  rule  of  law,  "Judex  nom  de 
legibus,  sed  secundum  leges  debet  judicare,"  it  does  not  belong  to  the 
judge  who  decides  to  examine  the  principle  laid  down  in  said  article 
186,  but  to  apply  it  fully,  it  being  the  law  in  force  in  the  State. 

Considering,  8.  That  this  general  rule  has  no  other  limitation  than 
that  expressed  in  article  126  of  the  General  Constitution,  which  says : 
"This  Constitution,  the  laws  of  the  Congress  of  the  Union  passed  in 
pursuance  thereof,  and  all  the  treaties  made  or  to  be  made  by  the  Presi- 
dent of  the  Republic  with  the  approval  of  the  Congress,  shall  be  the 
supreme  law  of  the  whole  Union.  The  judges  of  each  State  shall  act 
according  to  said  Constitution,  laws,  and  treaties,  notwithstanding  the 
existence  of  contrary  provisions  in  the  constitution  or  laws  of  the 
States." 

Considering,  9.  That  the  said  article  186  of  the  Penal  Code,  far 
from  being  contrary  to  the  supreme  law  or  to  the  treaties  made  by  the 
President  of  the  Republic,  has  for  its  object,  as  is  seen  in  the  exposi- 
tory part  of  the  same  code,  page  38,  "the  free  operation  of  the  principle 
on  which  the  right  to  punish  is  founded,  to  wit,  justice  united  to  utility." 

Considering,  10.  That  even  supposing,  without  conceding  it,  that 
the  penal  offense  of  defamation  was  committed  in  the  territory  of 
Texas,  the  circumstance  that  the  newspaper,  El  Paso  Sunday  Herald, 
was  circulated  in  this  town,  of  which  circumstance  Medina  complained, 
and  which  was  the  ground  of  ordering  the  seizure  of  the  copies  which 
might  be  found  in  the  office  of  Cutting,  in  this  same  town,  properly  con- 
stituted the  consummation  of  the  crime,  conformably  to  article  644  of 
the  Penal  Code.®^ 

Considering,  11.  That,  according  to  the  amended  article  7  of  the 
General  Constitution,  penal  offenses  committed  by  means  of  printing 
are  to  be  tried  by  the  competent  Federal  or  State  courts,  in  conform- 
ity with  their  penal  laws. 

Considering,  12.  That  the  publication  by  Cutting  in  El  Centinela, 
ratified  subsequently  in  the  El  Paso  Sunday  Herald  and  in  the  Evening 
Tribune,  on  file  in  the  case  attacks  the  private  life  of  Emigdio  Medina 
by  attributing  to  him  the  penal  offense  of  fraud  and  of  swindling,  and 
is  therefore  comprised  in  the  restriction  placed  on  the  liberty  of  the 
press  by  the  said  article  of  the  constitution. 

Considering,  13.  That  as  acts  consummated  in  the  territory  of  the 
Canton  of  Bravos,  State  of  Chihuahua,  are  in  question,  it  is  incumbent 
on  the  judge,  whose  name  is  hereto  subscribed,  to  pass  upon  them  con- 
formably to  the  laws  in  force  in  the  said  State,  especially  in  view  of  the 

6  2  This  article  provides  that  defamation  is  punishable  when  committed  by 
writing,  printing,  etc. 


Ch.  4)  JURISDICTION  OF   STATES  391 

fact  that  the  accused  resides  in  this  town,  where  he  has  had  his  domicil 
for  more  than  two  years,  as  appears  from  the  declarations  made  on 
folios  20,  21,  and  22  of  this  case,  a  statement  not  contradicted  by  Cut- 
ting, who  on  folio  19  declares  that  he  resides  on  both  sides,  that  is,  in 
Paso  del  Norte,  Mexico,  and  in  El  Paso,  Texas,  without  a  fixed  resi- 
dence on  either  of  the  two  sides. 

Considering,  14.  That  to  show  this  more  fully,  Cutting  expressly 
recognized  the  jurisdiction  of  the  authorities  of  this  town  by  appearing 
before  the  second  alcalde,  acting  in  turn  as  criminal  judge,  and  answer- 
ing the  demand  for  conciliation,  which  was  made  against  him  by 
Medina  for  defamation. 

Considering,  15.  That  the  responsibility  of  Cutting  is  fully  proved, 
since  it  appears  in  credible  documents  which  have  in  no  wise  been 
contradicted  by  their  author;  and,  if  any  doubt  should  exist  respect- 
ing the  malicious  intent  with  which  the  first  publication  was  made,  it 
would  disappear  in  view  of  the  subsequent  ratifications  made  in  the 
El  Paso  Sunday  Herald  and  in  the  Evening  Tribune,  in  which  Cutting 
expressly  says  that  Emigdio  Medina  is  a  fraud,  swindler,  coward  and 
thief;  ®^  the  requisites  specified  in  article  391  of  the  Code  of  Criminal 
Proceedings  being  thus  fully  met."* 

Considering,  16.  That  in  order  to  fix  the  penalty  which  ought  to 
be  enforced,  it  must  be  borne  in  mind  that,  although  the  charge  imputed 
to  the  offended  party  causes  him  dishonor  and  serious  prejudice,  and 
there  are  no  extenuating  circumstances,  the  crime  under  consideration 
is  of  a  private  character  between  two  editors,  in  which  the  only  ag- 
gravating circumstances  that  exist  are  those  referred  to  in  the  seventh  ^^ 
and  eleventh  ®^  sections  of  article  44  and  articles  656  °^  and  657  ^^ 
section  4  of  the  Penal  Code,  it  does  not  appear  that  the  other  aggravat- 
ing circumstances  mentioned  by  the  district  attorney  are  fully  proved ; 
for,  although  it  is  true  that  the  present  case  has  caused  great  alarm  in 
the  community,  this  is  not  attributable  to  the  penal  offense  imputed  to 
Cutting,  but  to  the  inadequate  means  which  have  been  taken  for  his 
defense;  this  being  exactly  the  case  provided  for  in  the  final  part  of 
article  66  of  the  said  code;  "^  and 

Considering,  finally,  17.  That  the  person  responsible  for  a  penal 
offense  is  also  responsible  for  its  consequences,  being  likewise  bound 


8  3  The  epithets  applied  by  Cutting  to  Medina  in  the  card  published  in  Texas, 
as  appears  from  a  copy  of  the  card  now  before  the  writer,  were  "fraud"  and 
"dead  beat." 

®*  Article  391  relates  to  proof  of  malicious  intent. 

^^  Circumstances :    That  the  delinquent  is  an  educated  person. 

*^  That  he  has  violated  more  than  one  provision  of  the  Penal  Code. 

^"^  That  publicity  is  an  aggravation  in  defamation. 

^^  That  defamation  is  public  when  pi-inted,  etc.,  and  distributed  or  exposed 
to  the  public,  or  shown  to  six  or  more  V-J^sons. 

•i"  Giving  certain  discretion  to  the  judge  as  to  severity  of  penalty. 


392  RIGHTS  AND   DUTIES  OF   NATIONS  IN  TIME   OF   PEACE       (Part  1 

to  make  civil  indemnity  in  the  terms  provided  in  article  326^*^  and 
327  '"■  of  the  Penal  Code. 

The  Sentence. 

In  view  of  the  foregoing  article  646,  section  2,  and  articles  661, ''* 
119^^  and  218,^*  of  the  said  code,  it  is  ordered  and  adjudged  as  fol- 
lows : 

First.  For  the  penal  offense  of  defamation  committed  against  the 
person  of  Emigdio  Medina,  A.  K.  Cutting  is  sentenced  to  serve  a  year 
at  hard  labor  and  pay  a  fine  of  $600,  or,  in  default  thereof,  endure  ad- 
ditional imprisonment  of  a  hundred  days. 

Second.  He  is  also  sentenced  to  pay  the  civil  indemnity,  to  be  fixed 
according  to  the  provisions  of  article  313  ^°  of  the  Penal  Code. 

Third.  Let  the  defendant  be  admonished  not  to  repeat  the  offense 
for  which  he  is  sentenced,  and  advised  of  the  penalties  to  be  incurred 
in  that  event. 

Fourth.  This  sentence  shall  be  published  in  the  manner  specified 
in  article  661  of  the  said  code. 

Fifth.  The  case  shall  be  sent  to  the  supreme  court  of  justice,  for  the 
purposes  to  which  the  final  part  of  the  petition  of  the  district  attorney 
refers,  relative' to  the  intervention  of  the  American  consul  in  this  suit. 

Sixth.  Let  the  interested  parties  be  notified,  and  the  prisoner  be  ad- 
vised of  the  length  of  time  he  has  to  appeal  from  this  sentence. 

Lie.  Miguel  Zubia,  judge  of  the  Bravos  District,  has  so  decreed 
definitively,  in  the  presence  of  witnesses. 

MiGUEJL  Zubia. 

Witnesses:    L.  Flores  and  S.  Vargas.'^' 

""^  The  defendant  is  bound  to  make  civil  indemnity,  if  his  act  caused  dam- 
age. 

■^1  And  for  this  indemnity  he  shall  he  held  liable,  whether  criminally  ab- 
solved or  not. 

■'  2  Requiring  publication  of  sentence,  at  defendant's  cost. 

'i'3  As  to  penalty  of  additional  imprisonment,  in  default  of  payment  of  the 
fine  imposed. 

■^^  Defendant  must  be  admonished  not  to  repeat  the  offense,  and  informed 
of  the  penalty  imposed  for  such  repetition. 

■'s  By  agreement  between  the  parties. 

■^6  After  the  decision  in  the  lower  court,  Medina  withdrew  his  complaint — 
probably  at  the  request  of  the  government,  in  order  to  prevent  foreign  com- 
plications. 

The  Supreme  Court  of  Chihuahua  held  that  the  withdrawal  was  a  bar  to 
further  proceedings,  while  maintaining  the  rightfulness  of  the  original  action. 

For  the  test  of  the  decision  of  the  Supreme  Court  of  Chihuahua,  delivered 
on  August  21,  1886,  see  John  Bassett  Moore's  Report,  15,  16. 

For  the  facts  and  a  discussion  of  the  law  applicable  to  the  Cutting  Case, 
see  the  exhaustive  report  prepared  by  John  Bassett  Moore,  then  Third  Assist- 
ant Secretary  of  State,  for  Thomas  F.  Bayard,  then  Secretary  of  State  of  the 
United  States.  See,  also,  John  Bassett  Moore,  2  Digest  of  International  Law, 
pp.  228-269    (1906). 

Upon  Cutting's  Case,  Freeman  Snow  felt  himself  justified  in  saying,  in  his 
Cases  and  Opinions  on  International  Law,  174,  175,  note    (1893)  : 

"The  position  of  the  government  of  the  United  States  in  the  Cutting  Case, 
that  the  Mexican  law  giving  to  its  courts  the  jurisdiction  of  extraterritorial 


Ch.  4)  JURISDICTION   OF   STATES  393 

offenses,  is  contrary  to  custom  and  international  law,  and  that  the  principles 
involved  in  it  are  practically  obsolete  in  practice,  wonld  seem  not  to  be  borne 
cut  by  facts.  Aside  from  the  question  whether  the  common-law  doctrine  of 
territorial  jurisdiction  is  the  more  expedient  practical  rule,  it  may  at  least 
be  said  that  it  is  by  no  means  so  universally  prevalent  as  to  warrant  the 
assertion  that  it  has  become  a  rule  of  international  law.  Not  only  are  there 
many  codes  which  go  quite  as  far  in  the  direction  of  extraterritorial  jurisdic- 
tion as  that  of  Mexico,  but  there  is  probably  not  a  state  which  adheres 
strictly  to  the  territorial  theory.  In  the  first  place,  practically,  all  states 
punish  their  own  citizens  for  offenses  of  one  kind  or  another  committed  in 
foreign  countries.  Even  England  punishes  not  only  for  treasonable  acts, 
but  also  for  bigamy,  murder,  and  manslaughter  committed  abroad  by  her 
subjects.  The  laws  of  the  United  States,  too,  provide  for  the  punishment  of 
certain  offenses  committed  abroad  by  their  citizens.  Rev.  St.  §  5335  (Comp. 
St.  §  10169).     And  see  Acts  of  Aug.  18,  1856,  and  Feb.  25,  1863. 

"Secondly,  In  regard  to  foreigners,  there  is  a  large  number  of  codes  which 
take  jurisdiction  of  offenses  against  the  state  committed  by  them  in  foreign 
states ;  and  a  lesser  number  which  go  further,  and  extend  their  jurisdiction 
to  offenses  against  individuals.  Of  this  number,  are  Austria,  Hungary,  Italy, 
Norway,  Sweden,  Russia,  Greece,  and  Brazil  as  well  as  Mexico. 

"Again  there  are  many  cases  in  the  state  courts  of  the  United  States,  where 
acts,  done  by  persons  without  the  state  but  which  take  effect  within  the  state, 
are  held  to  be  done  by  persons  constructively,  within  the  state,  and  jurisdiction 
is  assumed.  Thus,  if  a  man  in  one  state  fires  a  gun  over  the  boundary  line  and 
kills  a  man  in  another  state,  he  is  triable  in  the  latter  state.  United  States 
V.  Davis,  2  Sumn.  482,  Fed.  Cas.  No.  14.932  (1837)  ;  State  v.  Wyckoff,  31  N.  J. 
Law,  68  (1864)  ;  Com.  v.  Macloon,  101  Mass.  1, 100  Am.  Dec.  89  (1869) .  So,  the 
author  of  a  libel,  uttered  by  him  in  one  country,  and  published  by  others  in 
another  countrv,  is  triable  in  the  latter  country.  Com.  v.  Blanding,  3  Pick. 
(Mass.)  304.  15  Am.  Dec.  214  (1825). 

"The  Cutting  Case  is  similar  to  that  of  Com.  v.  Blanding.  being  a  libel 
uttered  in  Texas,  but  being  circulated  and  having  its  effect  in  Mexico ;  is  the 
offense  different  in  principle  from  that  of  wounding  a  man  in  one  state  by 
firing  across  the  boundary  from  another  state? 

"Among  jurists  there  is  a  wide  difference  of  opinion  in  regard  to  the  merits 
of  the  two  systems— the  'territorial'  and  the  'personal'  theories  of  jurisdiction. 
T.  E.  Holland,  Jurisprudence  (2d  Ed.)  p.  318;  F.  Wharton.  Philosophy  of 
Criminal  Law,  p.  309  et  seq. ;  L.  Bar.  Private  International  Law,  Translation 
bj»  G.  R.  Gillespie,  p.  620  et  seq. ;  Wharton's  Conflict  of  Laws.  §  1810 ;  'Case 
of  A.  K.  Cutting,  by  the  Minister  of  Foreign  Relations  of  the  Republic  of 
Mexico,'  1888." 

Pitt  Cobbett  appends  the  following  comment  to  the  summary  of  the  Cutting 
Case  contained  in  his  Cases  and  Opinions  on  International  Law,  part  I, 
"Peace,"  221,  222,  note    (1909)  : 

"Some  states  claim  to  apply  their  criminal  law  and  to  exercise  a  criminal 
jurisdiction  in  the  case  of  offences  committed  outside  their  territorial  limits 
not  only  by  subjects,  but  also  by  foreigners.  The  present  case  serves  to 
illustrate  at  once  the  nature  of,  and  the  risks  incident  to.  such  a  practice. 
The  position  taken  up  by  the  United  States  was  that  the  claim  put  forward  by 
Mexico  to  take  cognisance  of  an  offence  committed  in  the  United  States  by  a 
United  States  citizen,  even  though  it  affected  a  Mexican  citizen,  and  even 
though  the  alleged  offender  might  subsequently  be  apprehended  in  Mexico, 
was  bad  in  principle  as  Involving  a  violation  of  the  right  of  every  State 
to  exercise  exclusive  sovereignty  and  jurisdiction  as  to  all  persons  and  things 
within  its  own  territory ;  that  it  was  not  warranted  by  the  accepted  cus- 
tom of  nations;  and,  finally,  that  it  was  in  the  highest  degi-ee  inconvenient 
and  dangerous.  These  contentions  appi-ar  t'o  be  in  substance  correct.  Such 
a  claim  goes  lieyond  that  exceptional  jurisdiction  which  is  frequently  claim- 
ed and  exercised  by  states  over  their  own  subjects,  for  the  reason  that  the 
latter  jurisdiction  is  only  exercisable  when  the  citizen  or  subject  has  re- 
turned to  his  native  land  and  to  his  natural  allegiance,  and  when,  conse- 
quently, no  other  state  has  any  right  or  interest  in  protecting  him  against 
his  personal  law.  Even  in  such  a  case,  however,  if  the  person  proceeded 
against  were  domiciled  in  some  other  state,  the  claim  to  exercise  jurisdic- 
tion over  him  might  conceivably  be  impugned,  unless  the  offence  charged  was 


394  RIGHTS   AND   DUTIES   OF   NATION'S   IN   TIME   OF   PEACE       (Part  1 

V.  Acts  of  State 
BURON  V.  DENMAN. 

(Court  of  Exchequer,  1848.'  2  Exch.  167.) 

The  defendant,  a  naval  commander,  stationed  on  the  coast  of  Africa, 
with  instructions  to  suppress  the  slave  trade,  was  requested  by  the 
Governor  of  Sierra  Leone  to  obtain  the  liberation  of  two  British  sub- 
jects detained  as  slaves  at  the  Gallinas  by  the  son  of  the  king  of  that 
country,  and  in  effecting  that  object  to  use  force,  if  necessary.  He  ac- 
cordingly proceeded  to  the  Gallinas  with  an  armed  force,  and  having 
landed  at  Dombocorro,  took  military  possession  of  a  barracoon  belong- 
ing to  the  plaintiff,  who  was  a  Spaniard,  carrying  on  the  slave  trade 
at  the  Gallinas.  He  then  communicated  with  the  king  of  the  country, 
and  the  two  British  subjects  having  been  released,  the  defendant  con- 
cluded a  treaty  for  the  abolition  of  the  slave  trade  in  that  country.  In 
execution  of  this  treaty,  the  defendant  fired  the  barracoohs  of  the  plain- 
tiff, and  carried  away  his  slaves  to  Sierra  Leone,  where  they  were 
liberated.  Some  of  the  plaintiff's  goods,  used  in  the  slave  traffic,  were 
claimed  by  the  king  as  forfeited,  and  delivered  up  to  him ;  other  goods 
were  destroyed.  These  proceedings  having  been  communicated  to  the 
Lords  of  the  Admiralty,  and  the  Secretaries  of  State  for  the  foreign 
and  colonial  departments,  they  respectively,  by  letter,  adopted  and  rati- 
fied the  act  of  the  defendant.'^^ 

Parke,  B.  (in  summing  up).  With  respect  to  the  issue,  whether 
the  plaintiff  was  possessed  of  these  slaves,  your  verdict  must  be  for 
the  plaintiff.  The  law  on  the  subject  of  slaves  has  been  settled  by  the 
case  of  Le  Louis,  2  Dod.  210,  which  has  been  referred  to.  That  case 
was  decided,  in  the  year  1817,  by  Sir  William  Scott,  who  went  fully 
into  the  question  of  the  legality  of  the  slave  trade,  and  laid  down  cer- 
tain positions,  which  have  since  been  acquiesced  in,  both  in  this  country 
and  abroad.  Those  positions  are,  first,  that  dealers  in  slaves  are  not 
pirates  by  the  law  of  nations,  and  can  only  be  made  so  by  and  accord- 
ing to  the  terms  of  a  treaty  with  the  country  to  which  they  belong 
prohibiting  the  slave  trade;  secondly,  that  trading  in  slaves  is  not  a 
crime  by  the  law  of  nations;  thirdly,  that  the  right  of  stopping  and 
searching  ships  in  time  of  peace  is  not  a  right  which  can  belong  to  any 
nation  except  by  contract  with  the  nation  to  which  such  ships  belong; 
and,  fourthly,  that  if  there  be  a  law  in  a  particular  country  prohibiting 
the  slave  trade,  it  is  not  open  to  every  one  to  punish  the  offender 
against  that  law,  but  proceedings  must  be  taken  in  the  tribunals  of  his 
own  country.    Those  propositions  being  clear,  a  question  arises,  wheth- 

one  affecting  his  allegiance  to  his  native  country,  or  unless  the  seat  of  the 
offence  was  really  local." 

''''  The  headnote  of  the  case  is  substituted  lov  the  elaborate  statement  of  the 
original  report. 


Ch.  4)  JURISDICTION   OF   STATES  395 

er  the  plaintiff  can  maintain  this  action  for  taking  away  his  slaves. 
It  is  not  necessary  to  decide  whether,  if  he  had- been  simply  in  the  ac- 
tual possession  of  slaves,  using  them  as  slaves,  he  could  have  recov- 
ered against  any  person  who  took  them  away :  on  that  point  it  is  not 
necessary  to  give  an  opinion,  because,  according  to  the  evidence  on 
both  sides,  he  was  living  at  Gallinas,  where  it  was  lawful  to  possess 
slaves.  It  is  contended  that,  by  the  law  of  Spain,  the  plaintiff  cannot 
possess  a  property  in  slaves  for  the  purpose  of  exporting  them,  as 
slaves,  to  the  West  Indies.  However,  there  is  no  evidence  of  such  law, 
and  we  are  all,  therefore,  of  opinion  that  the  second  and  fourteenth 
issues,  both  as  to  the  slaves  and  tlie  goods,  must  be  found  for  the 
plaintiff. 

The  principal  question  is,  whether  the  conduct  of  the  defendant,  in 
carrying  away  the  slaves,  and  committing  the  other  alleged  trespasses, 
can  be  justified  as  an  act  of  state  done  by  authority  of  the  Crown.  It 
is  not  contended  that  there- was  any  previous  authority.  If  the  de- 
fendant had  merely  instructions  according  to  the  terms  of  the  treaty 
set  out  in  the  act  of  Parliament,  those  instructions  would  only  have 
extended  to  the  stopping  of  ships  on  the  high  seas,  within  the  limits 
agreed  to  by  the  treaty  with  the  Spanish  crown.  Therefore  the  justi- 
fication of  the  defendant  depends  upon  the  subsequent  ratification  of 
his  acts.  A  well-known  maxim  of  the  law  between  private  individuals 
is,  "Omnis  ratihabitio  retrotrahitur  et  mandato  asquiparatur."  If,  for 
instance,  a  bailiff  distrains  goods,  he  may  justify  the  act  either  by  a 
previous  or  subsequent  authority  from  the  landlord;  for,  if  an  act  be 
done  by  a  person  as  agent,  it  is  in  general  immaterial  whether  the 
authority  be  given  prior  or  subsequent  to  the  act.  If  the  bailiff  so 
authorized  be  a  trespasser,  the  person  whose  goods  are  seized  has  his 
remedy  against  the  principal.  Therefore,  generally  speaking,  between 
subject  and  subject,  a  subsequent  ratification  of  an  act  done  as  agent  is 
equal  to  a  prior  authority.  That,  however,  is  not  universally  true.  In 
the  case  of  a  tenant  from  year  to  year,  who  has,  by  law,  a  right  to  a 
half-year's  notice  to  quit,  if  such  notice  be  given  by  an  agent,  without 
the  authority  of  the  landlord,  the  tenant  is  not  bound  by  it.  Such 
« being  the  law  between  private  individuals,  the  question  is  whether  the 
act  of  the  sovereign,  ratifying  the  act  of  one  of  his  officers,  can  be 
distinguished. 

On  that  subject  I  have  conferred  with  my  learned  brethren,  and  they 
are  decidedly  of  opinion  that  the  ratification  of  the  Crown,  communi- 
cated as  it  has  been  in  the  present  case,  is  equivalent  to  a  prior  com- 
mand. I  do  not  say  that  I  dissent;  but  I  express  my  concurrence  in 
their  opinion  with  some  doubt,  because  on  reflection  there  appears  to 
me  a  considerable  distinction  between  the  present  case  and  the  ordinary 
case  of  ratification  by  subsequent  authority  between  private  individuals. 
If  an  individual  ratifies  an  act  done  on  his  behalf,  the  nature  of  the  act 
remains  unchanged,  it  is  still  a  mere  trespass,  and  the  party  injured  has 


396"  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   PEACE       (Part  1 

his  option  to  sue  either;  if  the  Crown  ratifies  an  act,  the  character  of 
the  act  becomes  ahered,  for  the  ratification  does  not  give  the  party  in- 
jured the  double  option  of  bringing  his  action  against  the  agent  who 
committed  the  trespass  or  the  principal  who  ratified  it,  but  a  remedy 
against  the  Crown  only  (such  as  it  is),  and  actually  exempts  from  all 
liability  the  person  who  commits  the  trespass.  Whether  the  remedy 
against  the  Crown  is  to  be  pursued  by  petition  of  right,  or  whether  the 
injury  is  an  act  of  state  without  remedy,  except  by  appeal  to  the  justice 
of  the  state  which  inflicts  it,  or  by  application  of  the  individual  suffering 
to  the  government  of  his  country,  to  insist  upon  compensation  from  the 
government  of  this — in  either  view^,  the  wrong  is  no  longer  action- 
able. I  do  not  feel  so  strong  upon  the  point  as  to  say  that  I  dis- 
sent from  the  opinion  of  my  learned  Brethren;  therefore,  you  have 
to  take  it  as  the  direction  of  the  court,  that  if  the  Crown,  with 
knowledge  of  what  has  been  done,  ratified  the  defendant's  act  by 
the  Secretaries  of  State  or  the  Lords  of  the  Admiralty,  this  action 
cannot  be  maintained.  In  the  documents  w^hich  have  been  read  there 
is  ample  evidence  of  ratification,  for  the  Secretary  of  State  for  Foreign 
Affairs,  the  Lords  of  the  Admiralty,  and  the  Secretary  of  State  for 
the  Colonial  Department,  on  receiving  the  report  of  the  Governor  of 
Sierra  Leone,  and  the  account  of  the  transactions  given  by  the  defend- 
ant himself,  expressed  their  approbation  of  what  he  had  done.  The 
acts,  indeed,  have  never  been  published,  and  that  is  one  of  the  cir- 
cumstances which  created  a  doubt  in  my  mind.  But,  although  the 
ratification  was  not  known  before  this  action  was  commenced,  that 
fact  makes  no  dift'erence  in  the  opinion  of  the  court.  A  previous 
command  would  be  unknown,  if  given  verbally;  and  a  subsequent  rati- 
fication, though  unknown,  will  have  the  same  effect. 

It  is  argued,  on  the  part  of  the  plaintiff,  that  the  Crown  can  only 
speak  by  an  authentic  instrument  under  the  Great  Seal,  and  that, 
therefore,  the  ratification  ought  to  have  been  under  the  Great  Seal. 
We  are  clearly  of  opinion,  that  as  the  original  act  would  have  been 
an  act  of  the  Crown,  if  communicated  by  a  written  or  parol  direction 
from  the  Board  of  Admiralty,  so  this  ratification,  communicated  in 
the  way  it  has  been,  is  equally  good.  I  should  observe  that  the  court 
are  of  opinion  that  it  is  not  necessary  for  the  defendant  to  prove  the 
pleas  which  expressly  state  the  authority  of  the  Crown ;  for  if  this  act, 
by  adoption,  becomes  the  act  of  the  Crown,  the  seizure  of  the  slaves 
and  goods  by  the  defendant  is  a  seizure  by  the  Crown,  and  an  act  of 
state  for  which  the  defendant  is  irresponsible,  and,  therefore,  entitled 
to  a  verdict  on  the  plea  of  "Not  guilty." 

The  jury  found  that  the  Crown  had  ratified  the  act  of  the  defendant, 
with  full  knowledge  of  what  he  had  done,  whereupon  a  verdict  was 
taken  for  him  on  the  fourth,  ninth,  and  sixteenth  pleas.  A  verdict  was 
found  for  the  plaintiff  on  the  pleas  of  not  possessed  of  the  slaves  and 


Ch.4)  JURISDICTION   OF  STATES  397 

goods ;   and  the  plea  of  "Not  guilty"  was  entered,  by  consent,  for  the 
plaintiffs. 

F.  Robinson  tendered  a  bill  of  exceptions  to  the  above  ruling;  but 
the  plaintiff  afterwards  obtained  an  order  to  discontinue,  certain  terms 
of  settlement  of  this  and  other  similar  actions  having  been  agreed  toJ^ 

^8  For  an  earlier  case,  holding  ratification  equivalent  to  command,  see  The 
Rolla,  '6  O.  Rob.  365,  decided  by  Sir  William  Scott  in  1807. 

"The  leading  case  on  this  subject  is  Buron  v.  Deninan.  *  *  *  This  prin- 
ciple has  been  asserted  and  acted  upon  in  many  later  cases.  One  of  the 
most  pointed  is  The  Secretary  of  State  for  India  v.  Kamachee  Baye  Sa- 
hiba  [13  Moore,  P.  C.  C.  22  (1859)].  In  this  case  the  R^jah  of  Tanjore, 
having  died  without  issue  male,  the  East  India  Company  seized  the  Rajah 
on  the  ground  that  the  dignity  was  extinct  for  want  of  a  male  heir,  and 
that  the  property  lapsed  to  the  British  Government.  The  judicial  com- 
mittee of  the  Privy  Council  held,  on  a  full  examination  of  the  facts,  that  the 
property  claimed  by  the  Rajah's  widow  'had  been  seized  by  the  British 
Government,  acting  as  a  sovereign  power,  through  its  delegate,  the  East  India 
Company,  and  that  the  acC  so  done,  with  its  conseqi;ences,  was  an  act  of 
state  over  which  the  Supreme  Court  of  Madras  had  no  jurisdiction.  *  *  * 
Even  if  a  wrong  had  been  done,  it  is  a  wrong  for  which  no  municipal  court 
can  afford  a  remedy.'  In  order  to  avoid  misconception  it  is  necessary  to 
observe  that  the  doctrine  as  to  acts  of  state  can  apply  only  to  acts  which 
affect  foreigners,  and  which  are  done  by  the  orders  or  with  the  ratification  of 
the  sovereign.  As  between  the  sovereign  and  his  subjects  there  can  be  no 
such  thing  as  an  act  of  state.  Coi:rts  of  law  are  established  for  the  express 
purpose  of  limiting  public  authority  in  its  conduct  towards  individuals.  If 
one  British  subject  puts  another  to  death  or  destroys  his  property  by  the  ex- 
press command  of  the  King,  that  command  is  no  protection  to  the  person  who 
executes  it  unless  it  is  in  itself  lawful,  and  it  is  the  duty  of  the  proper  courts 
of  justice  to  determine  whether  it  is  lawful  or  not.  On  this  ground  the 
courts  were  prepared  to  examine  into  the  legality  of  the  acts  done  under  Gov- 
ernor Eyre's  authority  in  the  suppression  of  the  insurrection  in  .Jamaica. 
The  acts  affected  British  subjects  only.  But  as  between  British  subjects  and 
foreigners,  the  orders  of  the  Crown  justify  what  they  command  so  far  as 
British  courts  of  justice  are  concerned.  In  regard  to  civil  rights,  this,  as  I 
have  shown,  has  been  established  by  express  and  solemn  decisions ;  and  it  is 
impossible  to  suppose  that  a  man  should  be  criminal  when  he  is  not  even  a 
wrongdoer."  Sir  James  F.  Stephen's  History  of  Criminal  Law,  Vol.  II.,  pp. 
64,  65    (1883). 

See,  also.  Sir  Frederick  Pollock's  Law  of  Torts  (10th  Ed.  1916)  pp.  117-122. 

A.  V.  Dicey,  Law  of  the  Constitution  (8th  Ed.)  p.  302,  note  3  (1915),  says: 
"Buron  v.  Denman,  2  Ex.  167  (1848),  is  sometimes  cited  as  showing"  that 
obedience  to  the  orders  of  the  Crown  is  a  legal  justification  to  an  officer 
for  committing  a  breach  of  law.  but  the  decision  in  that  case  does  not,  in 
any  way,  support  the  doctrine  erroneously  grounded  upon  it.  What  the  judg- 
ment in  Buron  v.  Denman  shows  is  that  an  act  done  by  an  English  military 
or  naval  officer  in  a  foi-eign  country  to  a  foreigner,  in  discharge  of  orders 
received  from  the  Crown,  may  be  an  act  of  war,  but  does  not  constitute  any 
breach  of  law  for  which  an  action  can  be  brought  against  the  officer  in  an 
Engli.sh  Court.  Compare  Feather  v.  The  Queen,  6  B.  &  S.  257,  295  (1865), 
per  Curiam." 

See,  further,  Dobree  v.  Napier,  2  Bingham's  New  Cases,  781  (1.S36), 
in  which  the  command  of  the  Queen  of  Portugal  was  held  sufl^ciont  justifica- 
tion for  seizure  of  plaintiff's  vessel  by  a  British  ofllcer  serving  temporarily  in 
the  Portuguese  Navy ;  Underbill  v.  Hernandez,  168  U.  S,  2.50.  IS  Sup.  Ct. 
83,  42  L.  Ed.  456  (1897),  in  which  the  same  doctrine  was  applied.  McLeod's 
Case,  famous  in  the  annals  of  diplomacy,  is  the  best  known  American  case 
on  this  subject. 


398  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

JOHNSTONE  V.  PEDLAR. 
(House  of  Lords,  L.  R.  [1921]  2  App.  Cas.  262.) 
See  post,  p..4g2,  for  a  report  of  the  case. 


Claim  of  McLEOD. 
(Anglo-American  Claims  Commission,  1853.     Report  of  Decisions,  314.) 

Alexander  McLeod,  a  British  subject  resident  in  Canada,  was  ar- 
rested in  Lewistown,  in  the  state  of  New  York,  in  November,  1840, 
on  a  charge  of  being  concerned  in  the  seizure  and  destruction  of  the 
steamer  Caroline,  attended  with  loss  of  life,  in  the  state  of  New  York, 
on  the  29th  of  December,  1837. 

During  the  pendency  of  the  prosecution.  Great  Britain  notified  the 
government  of  the  United  States  that  the  seizure  of  the  Caroline  was 
made  under  the  authority  of  Great  Britain,  and  claimed  the  discharge 
of  McLeod  on  that  ground. 

He  was  not  discharged,  but  was  tried  and  acquitted,  and  now  brings 
his  claim  before  this  commission  for  damages  and  expenses  arising 
from  his  detention  and  trial. 

The  facts  in  the  case  are  more  fully  set  forth  in  the  opinion  of  the 
commissioner,  together  with  the  correspondence  on  this  subject  be- 
tween the  two  governments  relating  to  the  settlement  of  the  same, 
so  far  as  it  has  a  bearing  on  the  jurisdiction  of  the  commissioners 
over  the  claim. 

The  case  was  fully  argued.  On  behalf  of  the  claimant,  McLeod 
appeared  per  se,  and  by  Hannen,  agent  and  counsel  for  Great  Britain. 
Thomas,  agent  and  counsel  for  the  United  States. 

Hornby,  Commissioner  of  Great  Britain.  Considered  the  adjust- 
ment made  between  the  two  governments  as  a  settlement  merely  of 
the  international  points  of  controversy  arising  in  the  case,  and  that 
any  private  claims  of  damage  on  the  part  of  McLeod  remained  an 
open  question  among  outstanding  claims  existing  at  the  date  of  the  con- 
vention. 

He  was  of  opinion  that  McLeod  was  entitled  to  immediate  release  on 
the  assumption  by  the  British  government  of  his  acts,  and  the  com- 
munication of  proper  notice  of  this  fact  to  the  American  authorities. 
It  then  became  a  national  controversy  and  ought  not  to  have  been 
further  prosecuted  against  an  individual. 

He  held  further,  that  the  detention  was  longer  than  was  necessary 
in  any  event,  and  was  rendered  unduly  severe  on  account  of  public 
excitement,  which  it  was  the  duty  of  the  government  to  have  repressed, 
and  that  from  this  cause  the  claimant  was  exposed  to  hardship  and 
much  expense,  for  which  he  was  justly  entitled  to  compensation.    *    *    * 


Ch.  4)  JURISDICTION   OF   STATES  399 

Two  questions  arise  in  the  case : 

I.  Whether  the  settlement  made  by  the  governments  precludes  our 
jurisdiction  over  the  claim  now  presented. 

II.  Whether,  independently  of  such  exception,  the  facts  show  a 
ground  of  claim  against  the  United  States. 

The  convention  provides  that  we  are  to  pass  upon  the  unsettled  claims 
of  citizens  or  subjects  of  either  government  against  the  other,  and 
we  are  to  pass  "only  on  such  claims  as  shall  be  presented  by  the  gov- 
ernments," and  are  to  be  confined  "to  such  evidence  and  information 
as  shall  be  furnished  by  or  on  their  behalf."  No  claims  can  be  sustained 
before  us  except  those  which  the  governments  can  rightly  prefer  for 
our  consideration.  With  matters  settled  and  adjusted  between  them, 
we  have  nothing  to  do. 

A  settlement  by  the  governments  of  the  ground  of  international 
controversy  between  them,  ipso  facto  settles  any  claims  of  individuals 
arising  under  such  controversies  against  the  government  of  the  other 
country,  unless  they  are  specially  excepted ;  as  each  government  by  so 
doing  assumes,  as  principal,  the  adjustment  of  the  claims  of  its  own 
citizens,  and  becomes,  itself,  solely  responsible  for  them. 

The  controversies  to  which  I  have  referred  consisted  of  two  grotmds 
of  complaint:  the  delay  in  the  liberation  of  McLeod,  on  the  one 
hand;  and  the  violation  of  the  American  rights  of  territory  in  the 
seizure  of  the  Caroline,  on  the  other.  These  questions  passed  under 
the  full  consideration  and  revision  of  the  two  governments,  in  1842, 
represented  by  Lord  Ashburton,  ambassador  extraordinary  and  min- 
ister plenipotentiary,  on  the  part  of  Great  Britain,  and  Mr.  Webster, 
then  Secretary  of  State,  on  the  part  of  the  United  States. 

The  result  of  their  conference  I  regard  as  a  full  and  final  settlement 
of  these  matters  in  controversy.  In  the  closing  letter  of  Lord  Ashbur- 
ton on  this  subject,  he  says :  "After  looking  through  the  voluminous 
correspondence  concerning  these  transactions"  (that  is,  the  difficulty 
with  McLeod,)  *T  am  bound  to  admit  there  appears  no  indisposition 
with  any  of  the  authorities  of  the  federal  government,  under  its  several 
administrations,  to  do  justice  in  this  respect  in  as  far  as  their  means 
and  powers  would  allow." 

He  makes  no  complaint  of  want  of  diligence  or  promptness  on  the 
part  of  the  United  States  government,  but  says :  "Owing  to  a  conflict 
of  laws,  difficulties  have  intervened,  much  to  the  regret  of  the  Amer- 
ican authorities,  in  giving  practical  effect  to  the  principles  avowed 
by  them ;  and  for  these  difficulties  some  remedy  has  been  by  all  de- 
sired."' He  then  says:  "I  trust  you  will  excuse  my  addressing  to 
you  the  inquiry,  whether  the  government  of  the  United  States  is  now 
in  a  condition  to  secure,  in  effect  and  in  practice,  the  principle,  which 
has  never  been  denied  in  argument,  that  individuals,  acting  under  legiti- 
mate authority,  are  not  personally  responsible  for  executing  the  orders 
of  their  government  ?  That  the  power,  when  it  exists,  will  be  used  on 
every  fit  occasion,  I  am  well  assured." 


400  RIGHTS  AND   DUTIES   OF  NATIONS   IN   TIME   OF   PEACE       (Part  1 

Lord  Ashburton  thus  rested  his  claim,  and  in  the  same  letter  and 
spirit  tendered  an  apology  for  the  violation  of  the  United  States'  right 
of  territory  in  the  seizure  of  the  Caroline,  "which  transactions,"  he 
says,  "are  connected  with  each  other." 

His  Lordship  then  does  not  wait  for  the  reply  of  Mr.  Webster  as 
to  the  adoption  of  a  provision  for  more  prompt  means  of  redress,  in 
cases  like  McLeod's,  but,  reposing  confidence  in  advance  in  the  proper 
action  of  the  American  government,  closes  his  letter  by  saying,  in  ref- 
erence to  both  these  subjects  of  controversy:  "I  trust,  sir,  I  may 
now  be  permitted  to  hope  that  all  feelings  of  resentment  and  ill  will 
resulting  from  these  truly  unfortunate  events  may  be  buried  in  oblivion 
and  that  they  may  be  succeeded  by  those  of  harmony  and  friendship, 
which  it  is  certainly  the  interest,  and  I  also  believe  the  inclination  of 
all  to  promote." 

Mr.  Webster,  in  his  reply  to  the  subjects  of  this  letter,  adverting 
to  the  matter  .of  McLeod,  stated  the  reasons  why  delay  had  occurred  in 
his  case,  and  that  "in  regular  constitutional  governments  persons  ar- 
rested on  charges  of  high  crimes  can  only  be  discharged  by  some  ju- 
dicial proceeding.  It  is  so  in  England.  It  is  so  in  the  colonies  and 
provinces  of  England."  He  further  says :  "It  was  a  subject  of  regret 
that  McLeod's  release  had  been  so  long  deferred ;  "  and,  in  answer 
to  the  question  proposed  to  him  by  Lord  Ashburton,  stated:  "It  was 
for  the  Congress  of  the  United  States,  whose  attention  has  been  called 
to  the  subject,  to  say  what  further  provision  ought  to  be  made  to 
expedite  proceedings  in  such  cases,  and  that  the  government  of  the 
United  States  holds  itself  not  only  fully  disposed,  but  fully  competent, 
to  carry  into  practice  every  principle  which  it  avows  or  acknowledges, 
and  to  fulfill  every  duty  and  obligation  which  it  owes  to  foreign  govern- 
ments, their  citizens  or  subjects." 

During  the  same  month,  on  the  29th  of  August,  1842,  Congress 
passed  a  law  by  which  immediate  transfer  of  jurisdiction  might  be 
made  to  the  courts  of  the  United  States  of  all  cases  where  any  persons, 
citizens,  or  subjects  of  a  foreign  state,  and  domiciled  therein,  should 
be  held  in  custody  on  account  of  any  act  done  under  the  commission, 
order,  or  sanction  of  any  foreign  state  or  sovereignty. 

The  delay,  therefore,  attendant  on  the  previous  means  of  removal 
of  such  cases  to  the  jurisdiction  of  the  United  States  courts  for  their 
decision,  which  was  the  only  ground  of  complaint,  was  thus  provided 
against,  and  every  suggestion  which  had  been  made  on  the  subject  was 
thus  fully  met  and  answered. 

In  reference  to  the  other  grounds  of  complaint — the  violation  of  the 
rights  of  territory  of  the  United  States  in  the  seizure  of  the  Caroline — 
Mr.  Webster,  in  reply  to  the  declarations  of  Lord  Ashburton,  thus 
disposes  of  the  matter  in  the  same  letter:  "Seeing,  he  says,  that  the 
transaction  is  not  recent ;  seeing  that  your  lordship,  in  the  name  of  your 
government,  solemnly  declares  that  no  slight  or  disrespect  was  in- 


Ch.  4)  JURISDICTION   OF   STATES  iOl 

tended  to  the  sovereign  authority  of  the  United  States ;  seeing  it  is 
acknowledged  that,  whether  justifiable  or  not,  there  was  yet  a  viola- 
tion of  the  territory  of  the  United  States,  and  that  you  are  instructed 
to  say  that  your  government  considers  that  as  a  most  serious  occur- 
rence; seeing,  finally,  that  it  is  now  admitted  that  an  explanation  and 
apolog}'-  for  this  violation  was  due  at  the  time,  the  President  is  content 
to  receive  these  acknowledgments  and  assurances  in  the  conciliatory 
spirit  which  marks  your  lordship's  letter,  and  will  make  this  subject,  as 
a  complaint  of  violation  of  territory,  the  topic  of  no  further  discussion 
between  the  two  governments." 

These  subjects  of  difficulty  and  controversy  between  the  two  coun- 
tries were  thus  fully  and  finally  adjusted,  so  that  the  able  and  patriotic 
'statesmen  by  whom  this  settlement  was  effected  trusted,  in  the  words 
of  Lord  1  ..shburton,  "that  these  truly  unfortunate  events  might  thence- 
forth be  buried  in  oblivion." 

The  question  then  arises,  what  was  the  effect  of  this  settlement  on 
the  private  claims  of  any  citizen  of  either  country  against  the  other? 
It  is  quite  clear  that  this  settlement  was  not  made,  leaving  the  private 
wrongs  of  the  owners  of  the  Caroline  to  be  pressed  against  the  British 
government  for  adjustment  by  an  American  agent;  nor  were  the 
claims  of  McLeod  to  indemnity  for  injuries  he  may  have  received  for 
supposed  participation  in  these  transactions  to  be  set  up  through  an 
agent  of  the  British  government  against  the  United  States. 

Such  a  construction  of  the  adjustment  made  between  Mr.  Webster 
and  Lord  Ashburton  would  be  a  violation  of  the  whole  tenor  of  the 
correspondence  between  the  two  governments,  and  of  the  international 
ground  on  which  they  both  concurred  in  placing  the  collisions  between 
the  two  countries.  In  my  view  the  entire  controversy,  with  all  its 
incidents,  was  then  ended ;  and  if  the  citizens  of  either  government 
had  grievances  to  complain  of,  they  could  have  redress  only  on  their 
own  governments,  who  had  acted  as  their  principals,  and  taken  the 
responsibility  of  making  the  whole  matter  an  international '  affair,  and 
had  adjusted  it  on  this  basis.     *     *     * 

Batiks,  Umpire.  The  commissioners  under  the  convention  having 
been  unable  to  agree  upon  the  decision  to  be  given  with  reference  to 
the  claim  of  Alexander  McLeod,  of  Upper  Canada,  against  the  govern- 
ment of  the  United  States,  I  have  carefully  examined  and  considered 
the  papers  and  evidence  produced  on  the  hearing  of  the  said  claim. 

This  case  arose  out  of  the  burning  and  destruction  of  the  American 
steamboat  Caroline,  at  Schlosser,  in  the  state  of  New  York,  on  the 
Niagara  river,  by  an  armed  force  from  Canada,  in  the  year  1837, 
for  which  the  British  government  appears  to  have  delayed  formally 
answering  the  claims  of  the  United  States,  until  1840,  when  the  claim- 
ant was  arrested  by  the  authorities  of  the  state  of  New  York  on  a 
charge  of  murder  and  arson,  as  having  been  one  of  the  party  which 
destroyed  the  "Caroline."  The  British  government  then  assumed  the 
Scott  Int.Law — 26 


402  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  I 

responsibility  of  the  act,  as  done  by  order  of  the  government  au- 
thorities in  Canada,  and  pleaded  justification  on  the  ground  of  urgent 
necessity. 

From  this  time  the  case  of  the  claimant  became  a  political  question 
between  the  two  governments,  and  the  United  States  used  every  means 
in  their  powisr  to  insure  the  safety  of  the  claimant,  and  to  procure  his 
discharge,  which  was  effected  after  considerable  delay. 

It  appears  by  the  diplomatic  correspondence  that  the  affair  of  the 
"Caroline,"  the  death  of  Durfee,  who  was  killed  in  the  affray,  and  the 
arrest  of  the  claimant,  were  all  amicably  and  finally  settled  by  the  dip- 
lomatic agents  of  the  two  governments  in  1S41  and  1842. 

The  question,  in  my  judgment,  having  been  so  settled,  ought  not  now 
to  be  brought  before  this  commission  as  a  private  claim.  I  therefore 
reject  it.'^^ 

•^9  See,  also,  People  v.  McLeod,  25  Wend.  (N.  T.)  4S3,  37  Am.  Dec.  328 
-  (1841)  ;   Id.,  1  Hill  (N.  Y.)  375,  37  Am.  Dec.  328  (1841). 

In  speaking  of  the  New  York  court,  Mr.  Webster  said :  "I  was  utterly 
surprised  at  the  decision  of  that  court  on  the  habeas  corpus.  On  the  peril  and 
at  the  risk  of  my  professional  reputation,  I  now  say  that  the  opinion  of  the 
court  of  New  York  in  that  case  is  not  a  respectable  opinion,  either  on  account 
of  the  result  at  which  it  arrives,  or  the  reasoning  on  which  it  proceeds."  Web- 
ster's Works.  Vol.  V,  p.  129.  See,  also,  26  Wend.  (N.  Y.)  663,  and  3  Hill  (N.  Y.) 
635,  for  criticism  and  defence  of  Justice  Cowen's  opinion  in  25  Wend.  483, 
567,  37  Am.  Dec.  328  (1841). 

Further  instances  are:  The  seizure  of  St.  Marks  (1  Wharton's  Digest  [2d 
Ed.]  §  50b  [1887]  ;  2  Moore's  Digest.  402,  403  [1906] )  holding  that  necessity 
justifies  an  invasion  of  foreign  territory  so  as  to  subdue  an  expected  as- 
sailant, and  the  seizure  of  Amelia  Isla-nd,  in  1817  (1  Wharton's  Digest,  § 
50a;  1  Moore's  Digest,  42,  76,  173,  175;  2  Moore's  Dig.  80,  406).  In  the 
technical  language  of  private  as  distinguished  from  public  law,  these  trans- 
actions amounted  to  the  abatement  of  a  nuisance,  the  right  to  do  which 
exists  in  the  aggrieved  party.  Its  exercise,  however,  is  decidedly  hazardous. 
3  Black.  Com.  5,  and  Pollock's  Torts   (10th  Ed.)  p.  439  (1916). 

These  instances  were  on  laud :  the  case  of  the  Virginius  was  on  the  high 
seas. 

"The  Virginius  was  registered  in  the  United  States  and  carried  the  Ameri- 
can flag :  but,  as  it  eventually  appeared,  she  was  really  the  property  of 
certain  Cuban  insurgents,  and  was  employed  in  aid  of  the  rebellion  in  Cuba. 
On  the  9th  of  July,  1873,  she  arrived  at  Kingston,  Jamaica,  and  on  the  23d 
of  October  she  cleared  ostensibly  for  Limon  Bay  in  Costa  Rica,  but  really 
for  the  coast  of  Cuba.  Being  chased  by  a  Spanish  warship,  she  put  into 
Port-au-Prince,  Hayti.  Thence  she  proceeded  again  to  the  coast  of  Cuba,  and 
was  again  chased  by  a  Spanish  war  vessel,  the  Tornado,  and  was  captured 
'ten  or  fifteen  miles  from  the  coast  of  Jamaica,  on  the  31st  of  October.  She 
was  taken  to  Santiago  de  Cuba,  where  a  court  was  assembled  for  the  trial 
of  the  persons  found  on  board — 155  in  number.  Of  these  four  were  tried  on 
the  3d  of  November,  and  shot  on  the  4th,  thirty-seven  on  the  7th,  and  sixteen 
on  the  8th.  Among  those  executed  were  nine  Americans  and  sixteen  British 
sub.iects. 

"The  government  of  the  United  States,  supposing  that  its  rights  on  the 
high  seas  had  been  violated,  demanded  reparation.  And  by  an  agreement 
of  the  29th  of  November,  Spain  stipulated  to  restore  the  Virginius  and  the 
survivors  of  the  passengers  and  crew,  and  to  salute  the  flag  of  the  United 
States  on  the  25th  of  December  following,  unless  Spain  should  in  the  mean 
time  prove  that  the  vessel  was  not  entitled  to  carry  said  flag.  The  matter 
was  submitted   to  the  Attorney   General  of  the   United    States,   who,   after 

Scott  Int.Law 


Ch.  4)  JURISDICTION   OF   STATES  403 

careful  examination,  reported  on  the  12th  of  December  that  the  registry  of 
the  Virginius  was  fraudulent,  and  that  she  had ,  therefore  no  right  to  carry 
the  American  flag.  But  he  added :  'I  am  also  of  opinion  that  she  was  as 
much  exempt  from  interference  on  the  high  seas  by  any  other  power,  on  that 
ground,  as  though  she  had  been  lawfully  registered.  Spain,  no  doubt,  has  a 
right  to  capture  a  vessel,  with  an  American  register,  and  carrying  the  Ameri- 
can flag,  found  in  her  own  waters  assisting,  or  endeavoring  to  assist,  the 
insurrection  in  Cuba,  but  she  has  no  right  to  capture  such  a  vessel  on  the 
high  seas  upon  an  apprehension  that,  in  violation  of  the  neutrality  or  naviga- 
tion laws  of  the  United  States,  she  was  on  her  way  to  assist  said  rebellion. 
Spain  may  defend  her  territory  and  people  from  the  hostile  attacks  of  what 
is,  or  appears  to  be,  an  American  vessel ;  but  she  has  no  jurisdiction  what- 
ever over  the  question  as  to  whether  or  not  such  vessel  is  on  the  high  seas 
in  violation  of  any  law  of  the  United  States.'  Spain  having  proved  her  point, 
the  salute  to  the  flag  was  dispensed  with.  The  vessel  was  delivered  to  the 
United  States  authorities  on  the  16th  of  December,  1873 ;  but  on  her  way 
north,  sank,  off  Cape  Fear,  on  the  26th  of  that  month. 

"Both  the  United  States  and  England  demanded  reparation  for  the  persons 
of  their  respective  nationalities  who  had  been  executed  by  the  captors  of  the 
Virginius ;  and  this  Spain  eventually  agreed  to  make.  Even  assuming  that 
the  vessel  was  lawfully  seized,  it  was  contended  that  there  could  be  no  justifi- 
cation of  the  summary  execution  of  foreigners  by  order  of  a  drum-head 
court-martial. 

"The  position  of  the  Attorney  General,  that  Spain  had  no  right  to  capture 
such  a  vessel  on  the  high  seas,  etc.,  has  called  forth  much  adverse  criticism. 
Both  Woolsey  and  Dana  justified  the  capture  at  the  time.  'The  register  of  a 
foreign  nation,'  said  Dana,  'is  not,  and  by  the  law  of  nations  is  not  recogniz- 
ed as  being,  a  national  voucher  and  guaranty  of  national  character  to  all  the 
world,  and  nations  having  cause  to  arrest  a  vessel,  would  go  behind  such  a 
document  to  ascertain  the  jurisdictional  fact  which  gives  character  to  the 
document,  and  not  the  document  to  the  fact.'  It  was  the  duty  of  the  Spanish 
captain,  says  Woolsey,  to  defend  the  coasts  of  Cuba  against  a  vessel  which 
was  known  to  be  under  the  control  of  the  insurgents,  for  which  he  had  been  on 
the  lookout,  and  against  which  the  only  effectual  security  was  capture  on  the 
high  seas.    Woolsey's  International  Law  (6th  Ed.)  pp.  368,  369. 

"In  a  pamphlet  on  the  'Case  of  the  Virginius,'  Mr.  George  T.  Curtis  took 
similar  ground.  'We  rest  the  seizure  of  this  vessel,'  he  says,  'on  the  great 
right  of  self-defence,  which,  springing  from  the  law  of  nature,  is  as  thorough- 
ly incorporated  into  the  law  of  nations  as  any  right  can  be.  [No  state  of 
belligerency  is  needful  to  bring  the  right  of  self-defence  into  operation.  It 
existed  at  all  times — in  peace  as  well  as  in  war.  The  only  questions  that  can 
arise  about  it  relate  to  the  modes  and  places  of  its  exercise.]'  "  Freeman  Snow, 
Cases  and  Opinions  on  International  Law,  pp.  179,  ISO   (1893). 

See,  also,  on  the  question  of  self-defence,  Great  Britain's  seizure  of  Danish 
Fleet  in  1807,   Hall's  International  Law    (4th  Ed.)   285. 

The  right  to  visit  and  search  foreign  merchant  vessels  upon  the  high  seas 
does  not  exist  in  time  of  peace,  other  than  as  the  result  of  treaty  stipulation. 
It  is  essentially  a  war  power  and  its  exercise  is  rightly  incident  thereto. 


404  EIGHTS  AND   DUTIES  OF  NATIONS  IN  TIME  OF  PEACE       (Part  1 


SECTION  4.— EXTRADITION «» 


RESPUBLICA  V.  DE  LONGCHAMPS. 

(Court  of  Oyer  and  Terminer  at  Philadelphia,  1784.    1  Dall.  Ill,  1  L.  Ed.  59.) 

McKean,  Chief  Justice.®^  Charles- Julian  De  Longchamps:  *  *  * 
These  offences  having  been  thus  legally  ascertained  and  fixed  upon 
you,  his  Excellency,  the  President,  and  the  Honorable  the  Supreme 
Executive  Council,  attentive  to  the  honor  and  interest  of  the  State, 
were  pleased  to  inform  the  Judges  of  this  Court,  as  they  had  frequent- 
ly done  before,  that  the  Minister  of  France  had  earnestly  repeated 
a  demand,  that  you,  having  appeared  in  his  house  in  the  uniform  of  a 
French  Regiment,  and  having  called  yourself  an  officer  in  the  troops 
of  his  Majesty,  should  be  delivered  up  to  him  for  these  outrages,  as 
a  Frenchman  to  be  sent  to  France;  and  wished  us  in  this  stage  of 
your  prosecution,  to  take  into  mature  consideration,  and  in  the  most 
solemn  manner  to  determine : — 

1st.  Whether  you  could  be  legally  delivered  up  by  council,  accord- 
ing to  the  claim  made  by  the  late  minister  of  France? 

2ndly.  If  you  could  not  be  thus  legally  delivered  up,  whether  your 
offences  in  violation  of  the  law  of  nations,  being  now  ascertained  and 
verified  according  to  the  laws  of  this  commonwealth,  you  ought  not 
to  be  imprisoned,  until  his  most  christian  majesty  shall  declare,  that  the 
reparation  is   satisfactory? 

And  3dly.  If  you  can  be  thus  imprisoned,  whether  any  legal  act  can 
be  done  by  council,  for  causing  you  to  be  so  imprisoned? 

To  these  queries  w.e  have  given  the  following  answer  in  writing: 

"In  compliance  with  the  request  of  his  excellency,  the  President,  and 
the  honorable  the  Supreme  Executive  Council,  we  postponed  passing 
sentence  upon  Charles-Julian  De  Longchamps,  until  we  had  maturely 
considered  the  three  questions  above  proposed  for  our  determination. 
On  the  10th  and  12th  days  of  July  the  several  questions  were  argued 
before  the  court  by  five  counsel,  two  on  the  affirmative  and  three  on 

s°  Extradition  exists  between  the  states  of  the  American  Union,  in  accord- 
ance with  article  4,  §  2,  of  the  Constitution  of  the  United  States,  which  pro- 
vides that : 

"A  Person  charged  in  any  State  with  Treason,  Felony,  or  other  Crime, 
who  shall  flee  from  Justice,  and  be  found  in  another  State,  shall  on  Demand 
of  the  executive  Authority  of  the  State  from  which  he  fled,  be  delivered  up, 
to  be  removed  to  the  State  having  jurisdiction  of  the  Crime." 

On  interstate  rendition,  as  distinguished  from  international  extradition,  see 
State  V.  Patterson,  116  Mo.  505,  22  S.  W.  696,  post,  p.  413  (1893). 

81  For  the  statement  of  facts  of  this  interesting  case  of  first  impression, 
see  ante,  p.  295. 

The  portion  of  the  case  here  given  relates  to  the  question  of  extradition. 


Ch.  4)  JURISDICTION  OF   STATES  40? 

the  negative  side.     We  have  kept  the  matter  tinder  advisement  until 
this  day,  and  now  deliver  our  opinion  thereupon. 

1.  "And  as  to  the  first  question,  we  answer:  That  it  is  our  opinion, 
that,  in  this  case,  Charles-Juliani  De  Longchamps  cannot  be  legally 
delivered  up  by  council,  according  to  the  claim  made  by  the  minister 
of  France.  Though,  we  think,  cases  may  occur,  where  council  could 
pro  bono  publico,  and  to  prevent  atrocious  offenders  evading  punish- 
ment, deliver  them  up  to  the  justice  of  the  country  to  which  they  be- 
long, or  where  the  ofifences  were  committed. 

2.  "Punishments  must  be  inflicted  in  the  same  country  where  the 
criminals  were  tried  and  convicted,  unless  the  record  of  the  attainder 
be  removed  into  the  Supreme  Court,  which  may  award  execution  in 
the  county  where  it  sits ;  they  must  be  such  as  the  laws  expressly  pre- 
scribe; or  where  no  stated  or  fiked  judgment  is  directed,  according  to 
the  legal  discretion  of  the  court;  but  judgments  must  be  certain  and 
definite  in  all  respects.  Therefore,  we  conclude,  that  the  defendant 
cannot  be  imprisoned,  until  his  most  christian  majesty  shall  declare, 
that  the  reparation  is  satisfactory. 

3.  "The  answer  to  the  last  question  is  rendered  unnecessary  by  the 
above  answer  to  the  second  question."     *     *     *  82 


UNITED  STATES  v.  RAUSCHER. 

(Supreme  Court  of  the  United  States,  18S6.    119  U.  S.  407,  7  Snp.  Ct.  234,  30 

L.  Ed.  425.) 

Mr.  Justice  MlllER  delivered  the  opinion  of  the  court.^' 
This  case  comes  before  us  on  a  certificate  of  division  of  opinion 
between  the  judges  holding  the  Circyit  Court  of  the  United  States 
for  the  Southern  District  of  New  York  arising  after  verdict  of  guilty, 
and  before  judgment,  on  a  motion  in  arrest  of  judgment. 

The  prisoner,  William  Rauscher,  was  indicted  by  a  grand  jury, 
for  that  on  the  9th  day  of  October,  1884,  on  the  high  seas,  out  of  the 
jurisdiction  of  any  particular  state  of  the  United  States,  and  within 

8  2  "The  first  case  in  America  In  which  the  question  of  the  duty  of  the  ex- 
tradition of  criminals,  independently  of  any  treaty  oblisations.  was  discussed, 
was  that  of  the  Chevalier  de  Longcliamps  in  1784.  [Kespublica  v.  De  Long- 
champs,  1  Dallas,  120,  1  L.  Ed.  59    (1784)].     ♦     »     * 

"It  must  be  remembered,  in  explanation  of  the  President's  action  in  this 
matter,  and  perhaps  of  the  severity  of  the  sentence,  that  at  this  time  there 
was  special  political  reason  in  America  for  the  desire  to  keep  on  good  terms 
with  France.  The  decision,  however,  upon  the  question  of  extradition  was 
clearly  right.  No  treaty  required  the  i*endition  of  the  offender ;  his  offence 
could  only  technically  be  called  an  offence  against  the  King  of  France:  the 
assault  was  committed  on  American  soil,  and  the  whole  matter  was  clearly 
within  the  cognisance  of  American  tribunals."  Sir  Edward  Clarke,  A  Treatise 
upon  the  Law  of  Extradition,  34,  35-36  (1903). 

»3  Part  of  Mr.  Justice  Miller's  opinion,  the  concurring  opinion  of  Mr.  Justice 
Gray,  and  the  dissenting  opinion  of  Mr.  Chief  Justice  Waite,  are  omitted. 


406  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

the  admiralty  and  maritime  jurisdiction  thereof,  he,  the  said  Wilham 
Rauscher,  being  then  and  there  second  mate  of  the  ship  J.  F.  Chap- 
man, unlawfully  made  an  assault  upon  Janssen,  one  of  the  crew  of 
the  vessel  of  which  he  was  an  officer,  and  unlawfully  inflicted  upon 
said  Janssen  cruel  and  unusual  punishment.  This  indictment  was 
found  under  §  5347  of  the  Revised  Statutes  of  the  United  States. 

The  statement  of  the  division  of  opinion  between  the  judges  is  in 
the  following  language : 

"This  cause  coming  on  to  be  heard  at  this  term,  before  judgment 
upon  the  verdict,  on  a  motion  in  arrest  of  judgment,  and  also  on  a 
motion  for  a  new  trial  before  the  two  judges  above  mentioned,  at  such 
hearing  the  following  questions  occurred : 

"First.  The  prisoner  having  been  extradited  upon  a  charge  of  mur- 
der on  the  high  seas  of  one  Janssen,  under  section  5339,  Rev.  Stat. 
(Comp.  St.  §  10445),  had  the  Circuit  Court  of  the  Southern  District  of 
New  York  jurisdiction  to  put  him  to  trial  upon  an  indictment  under 
section  5347,  Rev.  Stat.  (Comp.  St.  §  10464),  charging  him  with  cruel 
and  unusual  punishment  of  the  same  man,  he  being  one  of  the  crew 
of  an  American  vessel  of  which  the  defendant  was  an  officer,  and  such 
punishment  consisting  of  the  identical  acts  proved  in  the  extradition 
proceedings?     *     *     * 

The  treaty  with  Great  Britain,  under  which  the  defendant  was  sur- 
rendered by  that  government  to  ours  upon  a  charge  of  murder,  is 
that  of  August  9,  1842,  styled  "A  treaty  to  settle  and  define  the  bound- 
aries between  the  territories  of  the  United  States  and  the  possessions 
of  Her  Britannic  Majesty  in  North  America,  for  the  final  suppression 
of  the  African  slave  trade,  and  for  the  giving  up  of  criminals,  fugitive 
from  justice,  in  certain  cases."    8  Stat.  576. 

With  the  exception  of  this  caption,  the  tenth  article  of  the  treaty  con- 
tains all  that  relates  to  the  subject  of  extradition  of  criminals.  That  ar- 
ticle is  here  copied,  as  follows : 

"It  is  agreed  that  the  United  States  and  her  Britannic  Majesty  shall, 
upon  mutual  requisitions  by  them,  or  their  ministers,  officers,  or  au- 
thorities, respectively  made,  deliver  up  to  justice  all  persons  who, 
being  charged  with  the  crime  of  murder,  or  assault  with  intent  to 
commit  murder,  or  piracy,  or  arson,  or  robbery,  or  forgery,  or  the 
utterance  of  forged  paper,  committed  within  the  jurisdiction  of  either, 
shall  seek  an  asylum,  or  shall  be  found,  within  the  territories  of  the 
other:  provided  that  this  shall  only  be  done  upon  such  evidence  of 
criminality  as,  according  to  the  laws  of  the  place  where  the  fugitive 
or  person  so  charged  shall  be  found,  would  justify  his  apprehension 
and  commitment  for  trial,  if  the  crime  or  offence  had  there  been  com- 
mitted; and  the  respective  judges  and  other  magistrates  of  the  two 
Governments  shall  have  power,  jurisdiction,  and  authority,  upon  com- 
plaint made  under  oath,  to  issue  a  warrant  for  the  apprehension  of 
the  fugitive  or  person  so  charged,  that  he  may  be  brought  before  such 


Ch.  4)  JURISDICTION   OF   STATES  407 

judges  or  other  magistrates,  respectively,  to  the  end  that  the  evidence 
of  criminaHty  may  be  heard  and  considered ;  and  if,  on  such  hearing, 
the  evidence  be  deemed  sufficient  to  sustain  the  charge,  it  shall  be 
the  duty  of  the  examining  judge  or  magistrate  to  certify  the  same  to 
the  proper  executive  authority,  that  a  warrant  may  issue  for  the 
surrender  of  such  fugitive." 

Not  only  has  the  general  subject  of  the  extradition  of  persons, 
charged  with  crime  in  one  country,  who  have  fled  to  and  sought 
refuge  in  another,  been  matter  of  much  consideration  of  late  years  by 
the  executive  departments  and  statesmen  of  the  governments  of  the 
civilized  portion  of  the  world,  by  various  publicists  and  writers  on 
international  law,  and  by  specialists  on  that  subject,  as  well  as  by  the 
courts  and  judicial  tribunals  of  different  countries,  but  the  precise 
questions  arising  under  this  treaty,  as  presented  by  the  certificate  of 
the  judges  in  this  case,  have  recently  been  very  much  discussed  in 
this  country,  and  in  Great  Britain. 

It  is  only  in  modern  times  that  the  nations  of  the  earth  have  im- 
posed upon  themselves  the  obligation  of  delivering  up  these  fugitives 
from  justice  to  the  states  where  their  crimes  were  committed,  for 
trial  and  punishment.  This  has  been  done  generally  by  treaties  made 
by  one  independent  government  with  another.  Prior  to  these  trea- 
ties, and  apart  from  them,  it  may  be  stated  as  the  general  result  of 
the  writers  upon  international  law,  that  there  was  no  well-defined 
obligation  on  one  country  to  deliver  up  such  fugitives  to  another,  and 
though  such  delivery  was  often  made,  it  was  upon  the  principle  of 
comity,  and  within  the  discretion  o^  the  government  whose  action 
was  invoked;  and  it  has  never  been  recognized  as  among  those  obli- 
gations of  one  government  towards  another  whith  rest  upon  estab- 
lished principles  of  international  law. 

Whether  in  the  United  States,  in  the  absence  of  any  treaty  on 
the  subject  with  a  foreign  nation  from  whose  justice  a  fugitive  may 
be  found  in  one  of  the  states,  and  in  the  absence  of  any  act  of  Con- 
gress upon  the  subject,  a  state  can,  through  its  own  judiciary  or  execu- 
tive, surrender  him  for  trial  to  such  foreign  nation,  is  a  question 
which  has  been  under  consideration  by  the  courts  of  this  country  with- 
out any  very  conclusive  result.     *     *     *  s* 

Fortunately,  this  question,  with  others  which  might  arise  in  the  ab- 
sence of  treaties  or  acts  of  Congress  on  the  subject,  is  now  of  very 

8*  The  learned  Justice  here  cited  and  discussed  the  following  cases :  In  the 
Matter  of  Daniel  Washburn,  4  Johns.  Ch.  (N.  Y.)  106,  8  Am.  Dec.  548  (1819), 
iu  which  Chancellor  Kent  held  it  to  be  the  duty  of  the  state  to  surrender 
fugitive  criminals;  Com.  ex  rel.  Short  v.  Deacon,  10  Serg.  &  R.  (Pa.)  125 
(1823),  In  which  Chief  Justice  Tilghman  held  the  contrary  opinion  ;  Holmes  v. 
Jennison,  14  Pet.  540,  10  L.  Ed.  579  (3840),  in  which  the  Supreme  Court 
was  divided  on  the  question;  and  Ex  parte  Holmes,  12  Vt.  631  (18'10),  and 
People  V.  Curtis,  .GO  N.  Y.  321,  10  Am.  Kop.  4S3  (1872),  holding  that  an  act  of  a 
state  authorizing  the  surrender  of  fugitives  from  justice  was  iu  conflict  with 
the  Constitution  of  the  United  States. 


408  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OP   PEACE       (Part  1 

little  importance,  since,  with  nearly  all  the  nations  of  the  world  with 
whom  our  relations  are  such  that  fugitives  from  justice  may  be  found 
within  their  dominions  or  within  ours,  we  have  treaties  which  gov- 
ern the  rights  and  conduct  of  the  parties  in  such  cases.  These  treaties 
are  also  supplemented  by  acts  of  Congress,  and  both  are  in  their  nature 
exclusive. 

The  case  we  have  under  consideration  arises  under  one  of  these 
treaties  made  between  the  United  States  and  Great  Britain,  the  country 
with  which,  on  account  of  our  intimate  relations,  the  cases  requiring 
extradition  are  likely  to  be  most  numerous.  This  treaty  of  1842 
is  supplemented  bv  the  Acts  of  Congress  of  August  12,  1848,  9  Stat. 
302,  and  March  3,'  1869,  15  Stat.  337  (Comp.  St.  §§  10121-10123)  the 
provisions  of  which  are  embodied  in  sections  5270,  5272  and  5275  of 
the  Revised  Statutes  fComp.  St.  §§  10110,  10118,  10121),  under  title 
LXVI,  Extradition.     *     *     * 

The  treaty  of  1842  being,  therefore,  the  supreme  law  of  the  land, 
which  the  courts  are  bound  to  take  judicial  notice  of  and  to  enforce 
in  any  appropriate  proceeding  the  rights  of  persons  growing  out  of 
that  treaty,  we  proceed  to  inquire,  in  the  first  place,  so  far  as  per- 
tinent to  the  question  certified  by  the  circuit  judges,  into  the  true 
construction  of  the  treaty.  We  have  already  seen  that,  according 
to  the  doctrine  of  publicists  and  writers  on  international  law,  the 
country  receiving  the  offender  against  its  laws  from  another  country 
had  no  right  to  proceed  against  him  for  any  other  offense  than  that 
for  which  he  had  been  delivered  up.  This  is  a  principle  which  com- 
mends itself  as  an  appropriate  adjunct  to  the  discretionary  exercise 
of  the  power  of  rendition  because  it  can  hardly  be  supposed  that 
a  government  which  was  under  no  treaty  obligation  nor  any  absolute 
obligation  of  public  duty  to  seize  a  person  who  had  found  an  asy- 
lum within  its  bosom  and  turn  him  over  to  another  country  for  trial, 
would  be  wilHng  to  do  this,  unless  a  case  was  made  of  some  spe- 
cific offence,  of  a  character  which  justified  the  government  in  depriv- 
ing the  party  of  his  asylum.  It  is  unreasonable  that  the  country  of 
the  asylum  should  be  expected  to  deliver  up  such  person  to  be  dealt 
with  by  the  demanding  government  without  any  limitation,  implied 
or  otherwise,  upon  its  prosecution  of  the  party.  In  exercising  its 
discretion,  it  might  be  very  willing  to  deliver  up  offenders  against 
such  laws  as  were  essential  to  the  protection  of  life,  liberty  and 
person,  while  it  would  not  be  willing  to  do  this  on  account  of  minor 
misdemeanors  or  of  a  certain  class  of  political  offenses  in  which  it 
would  have  no  interest  or  sympathy.  Accordingly,  it  has  been  the 
policy  of  all  governments  to  grant  an  asylum  to  persons  who  have 
fled  from  their  homes  on  account  of  political  disturbances  and  who 
might  be  there  amenable  to  laws  framed  with  regard  to  such  sub- 
jects, and  to  the  personal  allegiance  of  the  party.  In  many  of  the 
treaties  of   extradition   between  the  civilized  nations   of   the  world, 


Ch.  4)  •  JURISDICTION    OF   STATES  409 

there  is  an  express  exclusion  of  the  right  to  demand  the  extradition  of 
offenders  against  such  laws,  and  in  none  of  them  is  this  class  of  offens- 
es mentioned  as  being  the  foundation  of  extradition  proceedings.  In- 
deed, the  enumeration  of  offenses  in  most  of  these  treaties,  and  espe- 
cially in  the  treaty  now  under  consideration,  is  so  specific,  and  marked 
by  such  a  clear  line  in  regard  to  the  magnitude  and  importance  of  those 
offenses,  that  it  is  impossible  to  give  any  other  interpretation  to  it 
than  that  of  the  exclusion  of  the  right  of  extradition  for  any  others. 

It  is,  therefore,  very  clear  that  this  treaty  did  not  intend  to  depart 
in  this  respect  from  the  recognized  public  law  which  had  prevailed 
in  the  absence  of  treaties,   and  that  it   was  not  intended  that  this 
treaty  should  be  used  for  any  other  purpose  than  to  secure  the  trial 
of  the  person  extradited  for  one  of  the  oft'enses  enumerated  in  the 
treaty.     This   is  not  only  apparent  from  the  general  principle  that 
the  specific  enumeration  of  certain  matters  and   things  implies  the 
exclusion  of  all  others,  but  the  entire  face  of  the  treaty,  including 
the  processes  by  which  it  is  to  be  carried  into  effect,  confirms  this 
view  of  the  subject.     It  is  unreasonable  to  suppose  that  any  demand 
for  rendition  framed  upon  a  general  representation  to  the  govern- 
ment of  the  asylum  (if  we  may  use  such  an  expression)   that  the 
party  for  whom  the  demand  was  made  was  guilty  of  some  violation 
of  the  laws  of  the  country  which  demanded  him,  without  specifying 
any  particular  offense  with  which  he  was  charged,  and  even  without 
specifying  an   offense   mentioned   in   the  treaty,   would   receive   any 
serious  attention;   and  yet  such  is  the  effect  of  the  construction  that 
the  party  is  properly  liable  to  trial  for  any  other  offense  than  that 
for  which  he  was  demanded,  and  which  is  described  in  the  treaty. 
There  would,  under  that  view  of  the  subject,  seem  to  be  no  need  of 
a  description  of  a  specific  offense  in  making  the  demand.     But,  so 
far  from  this  being  admissible  the  treaty  not  only  provides  that  the 
party  shall  be  charged  with  one  of  the  crimes  mentioned,  to  wit,  mur- 
der, assault  with  intent  to  commit  murder,  piracy,  arson,   robbery, 
forgery  or  the  utterance  of  forged  paper,  but  that  evidence  shall  be 
produced  to  the  judge  or  magistrate  of  the  country  of  which  such 
demand  is  made,  of  the  commission  of  such  an  off'ense,  and  that  this 
evidence  shall  be  such  as  according  to  the  law  of  that  country  would 
justify  the  apprehension  and  commitment  for  trial  of  the  person  so 
charged.     If  the  proceedings  under  which  the  party  is  arrested  in  a 
country  where  he  is  peaceably  and  quietly  living,  and  to  the  protec- 
tion of  whose  laws  he  is  entitled,  are  to  have  no  influence  in  limiting 
the  .prosecution  in  the  countr}'  where  the  off'ense  is  charged  to  have 
been  committed,  there  is  very  little  use  for  this  particularity  in  charg- 
ing a  specific  offense,  requiring  that  offense  to  be  one  mentioned  in 
the  treaty,  as  well  as  sufficient  evidence  of  the  party's  guilt  to  put  him 
upon  trial  for  it.     Nor  can  it  be  said  that,  in  the  exercise  of  such  a 
delicate  power  under  a  treaty  so  well  guarded  in  every  particular,  its 


410  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

provisions  are  obligatory  alone  on  the  state  which  makes  the  surrender 
of  the  fugitive,  and  that  that  fugitive  passes  into  the  hands  of  the 
country  which  charges  him  with  the  offense,  free  from  all  the  positive 
requirements  and  just  implications  of  the  treaty  under  which  the 
transfer  of  his  person  takes  place,  A  moment  before  he  is  under  the 
protection  of  a  government  which  has  afforded  him  an  asylum  from 
which  he  can  only  be  taken  under  a  very  limited  form  of  procedure, 
and  a  moment  after  he  is  found  in  the  possession  of  another  sovereign- 
ty by  virtue  of  that  proceeding,  but  divested  of  all  the  rights  which 
he  had  the  moment  before,  and  of  all  the  rights  which  the  law  govern- 
ing that  proceeding  was  intended  to  secure. 

If  upon  the  face  of  this  treaty  it  could  be  seen  that  its  sole  object 
was  to  secure  the  transfer  of  an  individual  from  the  jurisdiction  of 
one  sovereignty  to  that  of  another,  the  argument  might  be  sound; 
but  as  this  right  of  transfer,  the  right  to  demand  it,  the  obligation 
to  grant  it,  the  proceedings  under  which  it  takes  place,  all-  show 
that  it  is  for  a  limited  and  defined  purpose  that  the  transfer  is  made, 
it  is  impossible  to  conceive  of  the  exercise  of  jurisdiction  in  such  a 
case  for  any  other  purpose  than  that  mentioned  in  the  treaty,  and 
ascertained  by  the  proceedings  under  which  the  party  is  extradited, 
without  an  implication  of  fraud  upon  the  rights  of  the  party  extra- 
dited, and  of  bad  faith  to  the  country  which  permitted  his  extra- 
dition. No  such  view  of  solemn  public  treaties  between  the  great 
nations  of  the  earth  can  be  sustained  by  a  tribunal  called  upon  to  give 
judicial  construction  to  them. 

The  opposite  view  has  been  attempted  to  be  maintained  in  this 
country  upon  the  ground  that  there  is  no  express  limitation  in  the 
treaty  of  the  right  of  the  country  in  which  the  offense  was  com- 
mitted to  try  the  person  for  the  crime  alone  for  which  he  was  ex- 
tradited, and  that  once  being  within  the  jurisdiction  of  that  country, 
no  matter  by  what  contrivance  or  fraud  or  by  what  pretense  of 
establishing  a  charge  provided  for  by  the  extradition  treaty  he  may 
have  been  brought  within  the  jurisdiction,  he  is,  when  here,  liable 
to  be  tried  for  any  offense  against  the  laws  as  though  arrested  here 
originally.  This  proposition  of  the  absence  of  express  restriction  in 
the  treaty  of  the  right  to  try  him  for  other  offenses  than  that  for 
which  he  was  extradited,  is  met  by  the  manifest  scope  and  object  of 
the  treaty  itself.  The  caption  of  the  treaty,  already  quoted,  declar- 
ing that  its  purpose  is  to  settle  the  boundary  line  between  the  two 
governments;  to  provide  for  the  final  suppression  of  the  African 
slave  trade;  adds,  "and  for  the  giving  up  of  criminals,  fugitive  from 
justice,  in  certain  cases."  The  treaty,  then,  requires,  as  we  have 
already  said,  that  there  shall  be  given  up,  upon  requisitions  respect- 
ively made  by  the  two  governments,  all  persons  charged  with  any 
of  the  seven  crimes  enumerated,  and  the  provisions  giving  a  party 
an  examination,  before  a  proper  tribunal,  in  which,  before  he  shall 


Ch.  4)  JURISDICTION   OF   STATES  411 

be  delivered  up  on  this  demand,  it  must  be  shown  that  the  offense 
for  which  he  is  demanded  is  one  of  those  enumerated,  and  that  the 
proof  is  sufficient  to  satisfy  the  court  or  magistrate  before  whom 
this  examination  takes  place  that  he  is  guihy  and  such  as  the  law 
of  state  of  the  asylum  requires  to  establish  such  guilt,  leave  no  rea- 
son to  doubt  that  the  fair  purpose  of  the  treaty  is,  that  the  person  shall 
be  delivered  up  to  be  tried  for  that  offense  and  for  no  other. 

If  there  should  remain  any  doubt  upon  this  construction  of  the 
treaty  itself,  the  language  of  two  acts  of  Congress,  heretofore  cited, 
incorporated  in  the  Revised  Statutes,  must  set  this  question  at  rest. 
It  is  there  declared.  Rev.  Stat.  §  5272,  the  two  preceding  sections  hav- 
ing provided  for  a  demand  upon  this  country  and  for  the  inquiry  into 
the  guilt  of  the  party,  that  "it  shall  be  lawful  for  the  Secretary  of 
State,  under  his  hand  and  seal  of  office,  to  order  the  person  so  com- 
mitted to  be  delivered  to  such  person  or  persons  as  shall  be  authorized, 
in  the  name  and  on  behalf  of  such  foreign  government,  to  be  tried  for 
the  crime  of  which  such  person  shall  be  so  accused,  and  such  person 
shall  be  delivered  up  accordingly." 

For  the  protection  of  persons  brought  into  this  country  by  extra- 
dition -proceedings  from  a  foreign  country,  section  5275  of  the  Revised 
Statutes  provides : 

"Whenever  any  person  is  delivered  by  any  foreign  government  to 
an  agent  of  the  United  States,  for  the  purpose  of  being  brought  within 
the  United  States  and  tried  for  any  crime  of  which  he  is  duly  accused, 
the  President  shall  have  power  to  take  all  necessary  measures  for  the 
transportation  and  safe  keeping  of  such'  accused  person,  and  for  his 
Security  against  lawless  violence,  until  the  final  conclusion  of  his  trial 
for  the  crimes  or  offences  specified  in  the  warrant  of  extradition,  and 
until  his  final  discharge  from  custody  or  imprisonment  for  or  on  ac- 
count of  such  crimes  or  offences,  and  for  a  reasonable  time  there- 
after, and  may  employ  such  portion  of  the  land  or  naval  forces  of 
the  United  States,  or  of  the  militia  thereof,  as  may  be  necessary  for 
the  safe  keeping  and  protection  of  the  accused. 

The  obvious  meaning  of  these  two  statutes,  which  have  reference 
to  all  treaties  of  extradition  made  by  the  United  States,  is  that  the 
party  shall  not  be  delivered  up  by  this  government  to  be  tried  for 
any  other  offense  than  that  charged  in  the  extradition  .proceedings ; 
and  that,  when  brought  into  this  country  upon  similar  proceedings, 
he  shall  not  be  arrested  or  tried  for  any  other  oft'ense  than  that  with 
which  he  was  charged  in  those  proceedings,  until  he  shall  have  had 
a  reasonable  time  to  return  unmolested  to  the  country  from  which  he 
was  brought.  This  is  undoubtedly  a  congressional  construction  of  the 
purpose  and  meaning  of  extradition  treaties  such  as  the  one  we  have 
under  consideration,  and  whether  it  is  or  not,  it  is  conclusive  upon 
the  judiciary  of  the  right  conferred  upon  persons  brought  from  a  for- 
eign country  into  this  under  such  proceedings. 

That  right,  as  we  understand  it,  is  that  he  shall  be  tried  only  for 


412  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

the  offense  with  which  he  is  charged  in  the  extradition  proceedings, 
and  for  which  he  was  deHvered  up,  and  that  if  not  tried  for  that,  or 
after  trial  and  acquittal,  he  shall  have  a  reasonable  time  to  leave  the 
country  before  he  is  arrested  upon  the  charge  of  any  other  crime 
committed  previous  to  his  extradition. 

This  precise  question  has  been  frequently  considered  by  courts  of 
the  highest  respectability  in  this  country,     *     *     * 

Upon  a  review  of  these  decisions  of  the  federal  and  state  courts, 
to  which  may  be  added  the  opinions  of  the  distinguished  writers 
which  we  have  cited  in  the  earlier  part  of  this  opinion,  we  feel  author- 
ized to  state  that  the  weight  of  authority  and  of  sound  principle  are 
in  favor  of  the  proposition,  that  a  person  who  has  been  brought 
within  the  jurisdiction  of  the  court  by  virtue  of  proceedings  under 
an  extradition  treaty,  can  only  be  tried  for  one  of  the  offenses  de- 
scribed in  that  treaty,  and  for  the  offense  with  which  he  is  charged  in 
the  proceedings  for  his  extradition,  until  a  reasonable  time  and  oppor- 
tunity have  been  given  him,  after  his  release  or  trial  upon  such 
charge,  to  return  to  the  country  from  whose  asylum  he  had  been  for- 
cibly taken  under  those  proceedings.     *     *     *  ^^ 

8  5  In  18f>4  President  Lincoln  surrendered  to  the  Spanish  authorities  one 
Arguelles,  an  alleged  fugitive  from  justice,  without  any  treaty  stipulation. 
The  case  was  unfavorably  criticised  at  the  time  and  since,  so  that  it  has  not 
been  followed  as  a  precedent.  See  .John  Bassett  Moore's  Extradition  and  In- 
terstate Rendition,  vol.  1,  p.  33.  §  27  (1891). 

"The  history  of  extradition  in  England  begins  with  the  treaties  made  with 
the  United  States  in  October,  1842,  and  with  France  in  1843. 

"Only  one  demand  seems  to  have  been  made  upon  Great  Britain  before  the 
date  of  these  treaties,  and  that  was  by  the  United  States  in  1841,  in  the  case 
of  The  Creole.  *  ♦  *  "  gee  for  the  facts  of  this  case,  ante,  p.  27S.  Sir 
Edward  Clarke  thus  states  the  case  in  his  Treatise  upon  the  Law  of  Extradi- 
tion (4th  Ed.  1903)  p.  128: 

"Nineteen  slaves  were  identified  as  having  participated  in  the  mutiny  and 
murder,  and  they  were  placed  in  confinement,  the  Governor  refusing  to  give 
them  up .  to  the  American  Government.  The  rest  were  set  at  liberty.  The 
nineteen  were  tried  at  Nassau  for  piracy,  and  acquitted.  The  law  authorities 
in  England  were  unanimously  of  opinion  upon  this  case  that  they  could  not 
be  given  up  in  the  absence  of  an  Act  of  the  English  Parliament  giving  power 
to  the  executive." 

The  texts  of  the  various  extradition  treaties  in  force  to  which  Great  Britain 
was  a  party  at  the  date  of  the  last  edition  of  Sir  Edward  Clarke's  Treatise 
in  1903  are  therein  contained,  on  pages  Ixxxii-ccccxci. 

A  list  of  the  existing  extradition  treaties  of  the  United  States  in  force  at 
the  same  date  is  given  on  pages  ccccxcii-ccccxciii,  of  that  work.  The  texts 
of  these  treaties  will  also  be  found  in  William  M.  Malloy's  Treaties,  Con- 
ventions, Interjiational  Acts,  Protocols  and  Agreements  between  the  United 
States  and  Other  Powers,  1776-1909  (1910),  2  vols.,  and  a  third  volume.  Trea- 
ties. Conventions,  etc.,  1910-1913   (1913),  by  Garfield  Charles. 

"The  practice  with  respect  to  demands  in  extradition  made  upon  Great  Brit- 
ain for  the  surrender  of  a  person  suspected  of  being  in  the  United  Kingdom  is 
now  regulated  by  the  Extradition  Act  1870  (33  &  34  Vict.  c.  52).  The  requis'i- 
tion  must  be  made  upon  one  of  the  principal  Secretaries  of  State  by  some 
person  recognized  by  him  as  a  diplomatic  representative  of  the  foreign  state. 
Section  7.  This  includes  any  person  recognized  as  a  Consul  General  of  the 
foreign  state.  Extradition  Act  187.3—36  &  37  Vict.  c.  00,  §  7.  The  demand 
need  not  be  accompanied  by  any  copies  of  depositions,  or  even  of  a  warrant 


Ch.  4)  JDrtlSDICTION   OP   STATES  413 

STATE  V.  PATTERSON. 
(Supreme  Court  of  Missouri,  1803.    116  Mo.  505,  22  S.  W.  696.) 

Sherwood,  J.^^  The  third  question  presented  by  the  record  is 
that  in  relation  to  the  jurisdiction  of  the  court  to  try  defendant  on  the 
third  count  of  the  indictment ;  and  this  contention  is  made  because  it  is 
said  the  affidavit  of  Huston,  on  which  the  requisition  was  based,  was 
not  sufficiently  comprehensive  to  embrace  the  charge  contained  in  that 
count,  and  this  contention  was  set  forth  in  the  trial  court  by  a  plea  to 
the  jurisdiction.  The  decided  cases  show  some  divergence  of  opinion 
on  the  question  whether  a  fugitive  from  justice,  when  brought  back 
to  the  state  where  the  alleged  crime  occurred,  can  be  tried  for  crimes 
other  than  the  one  for  which  he  was  extradited,  some  authorities  hold- 
ing that  the  fugitive  cannot  be  tried  except  for  the  offence  named  in 
the  warrant  of  extradition ;  others  that  when  a  person  is  properly 
charged  with  crime  in  the  courts  of  the  state  to  which  he  is  brought, 
they  will  not  inquire  into  the  means  whereby  his  extradition  was 
effected.  -S  American  and  English  Encyclopaedia  of  Law,  p.  648  et 
seq.     As  sustaining  the  latter  view,  a  view  entertained  by  the  great 

of  arrest  issued  in  the  foreign  state,  but  it  is  usual  for  the  Secretary  of 
State  to  require  some  prima  facie  evidence  of  guilt,  or  some  proof  of  the 
conviction  in  the  foreign  state,  to  be  laid  before  him.  If  he  thinks  the  offence 
is  not  one  of  a  political  character,  and  that  the  surrender  should  be  granted, 
he  by  order  under  his  hand  and  seal  signifies  to  the  chief  magistrate  of  the 
metropolitan  police  courts,  or  one  of  the  other  magistrates  of  the  metropolitan 
police  court  in  Bow  Street  (section  26),  that  such  requisition  has  been  made, 
and  requires  him  to  issue  his  warrant  for  the  apprehension  of  the  fugitive 
criminal  (section  7)."    Clarke's  Treatise  upon  Extradition  (4th  Ed.  1903)  230. 

The  practice  of  the  United  States  is  regulated  by  Rev.  St.  sections  5270-.52SO 
(3  Fed.  Stat.  Ann.,  pp.  68-90)  ;  the  material  portion  of  section  5270  (Comp. 
St.  §  10110)  being  as  follows : 

"Whenever  there  is  a  treaty  or  convention  for  extradition  between  the 
Government  of  the  United  States  and  any  foreign  government,  any  justice  of 
the  Supreme  Court,  circuit  judge,  district  judge,  commissioner,  authorized  so 
to  do  by  any  of  the  courts  of  the  United  States,  or  judge  of  a  court  of  record 
of  general  jurisdiction  of  any  state,  may,  upon  complaint  made  under  oath, 
charging  any  person  found  within  the  limits  of  any  state,  district,  or  territory, 
with  having  committed  within  the  jurisdiction  of  any  such  foreign  govern- 
ment any  of  the  crimes  provided  for  by  such  treaty  of  convention,  issue  his 
warrant  for  the  apprehension  of  the  person  so  charged  that  he  may  be  brought 
before  such  justice,  judge,  or  commissioner,  to  the  end  that  the  evidence  of 
criminality  may  be  heard  and  considered.  If,  on  such  hearing,  he  deems  the 
evidence  sufficient  to  sustain  the  charge  under  the  provisions  of  the  proper 
treaty  or  convention,  he  shall  certify  the  same,  together  with  a  copy  of  all  the 
testimony  taken  before  him,  to  the  Secretary  of  State,  that  a  warrant  may 
issue  upon  the  requisition  of  the  proper  authorities  of  such  foreign  govern- 
ment, for  the  surrender  of  such  person,  according  to  the  stipulations  of  the 
treaty  or  convention;  and  he  shall  issue  his  warrant  for  the  commitment  of 
the  person  so  charged  to  the  proper  jail,  there  to  remain  until  such  surrender 
shall  be  made." 

The  standard  work  on  extradition  in  general  and  rendition  in  particular  be- 
tween the  states  of  the  American  Union  is  John  Bassett  Moore's  Treatise  on 
Extradition  and  Interstate  Rendition  in  two  volumes  (1891). 

^®  Only  the  opinion  on  this  third  point  is  given. 


414  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

preponderance  and  a  majority  of  the  authorities,  are :  Ham  v.  State,  4 
Tex.  App.  645 ;  State  v.  Ross,  21  Iowa,  467;  State  «x  rel.  v.  Stewart,  60 
Wis.  587,  19  N.  W.  429,  50  Am.  Rep.  388;  Waterman  v.  State,  116  Ind. 
51,  18  N.  E.  63;  People  v.  Rowe,  4  Parker  Cr.  Rep.  253;  Ker  v. 
People,  110  111.  627,  51  Am.  Rep.  706;  Lagrave's  Case,  59  N.  Y.  110, 
17  Am.  Rep.  317;  People  ex  rel.  v.  Cross,  135  N.  Y.  536,  32  N.  E.  246, 
31  Am.  St.  Rep.  850;  In  re  Mile§,  52  Vt.  609;  State  v.  Smith,  1 
Bail.  (S.  C),  283,  19  Am.  Dec.  679;  Dows'  Case,  18  Pa.  37;  Harland 
V.  Territory,  3  Wash.  T.  131,  13  Pac.  453;  Commonwealth  v.  Wright, 
158  Mass.  149,  33  N.  E.  82,  19  L.  R.  A.  206,  35  Am.  St.  Rep.  475; 
Kentucky  v.  Dennison,  24  How.  66,  16  L.  Ed.  717;  In  re  Noyes,  17 
Alb.  Law  J.  407;  Ker  v.  Illinois,  119  U.  S.  436,  7  Sup.  Ct.  225,  30  L. 
Ed.  421 ;  Mahon  v.  Justice,  127  U.  S.  700,  8  Sup.  Ct.  1204,  32  L.  Ed. 
283;  Cook  v.  Hart,  146  U.  S.  183,  13  Sup.  Ct.  40,  36  L.  Ed.  934;  1 
Bishop  Criminal  Procedure  (3d  Ed.)  §  224b;  2  Moore  on  Extradition, 
§  643  et  seq. 

In  the  recent  case  of  Lascelles  v.  State,  90  Ga.  347,  16  S.  E.  945, 
35  Am.  St.  Rep.  216  (1892),  the  Supreme  Court  of  the  state  of  Georgia, 
per  Lumpkin,  J.,  ruled  that  the  defendant,  though  indicted  for  the 
offence  of  being  a  common  cheat  and  swindler,  and  for  larceny  after 
trust,  and  extradited  from  the  state  of  New  York  on  those  charges, 
could  be  indicted  and  tried  for  a  forgery  committed  in  that  state  prior 
to  his  extradition.  This  case  was  brought  on  error  to  the  Supreme 
Court  of  the  United  States,  Lascelles  v.  Georgia,  148  U.  S.  537,  13 
Sup,  Ct.  687,  Z7  L.  Ed.  549,  where,  after  a  review  of  the  authorities, 
the  judgment  was  affirmed.  In  that  case,  decided  April  3,  1893,  the 
Supreme  Court  of  the  L'nited  States,  as  did  the  Supreme  Court  of 
Georgia,  clearly  pointed  out  the  distinction  which  should  be  taken  be- 
tween those  cases  of  extradition  arising  between  the  several  states  of 
the  Union  under  the  Constitution  and  laws  of  Congress  and  those  cases 
where  a  prisoner  has  been  extradited  from  a  foreign  country  under 
treaty  stipulations,  in  which  latter  cases  it  has  been  ruled  that  a  per- 
son thus  extradited  could  only  be  tried  for  the  specific  offence  which 
caused  his  extradition.  United  States  v.  Rauscher,  119  U.  S.  407,  7 
Sup.  Ct.  234,  30  L.  Ed.  425. 

In  Ker  v.  People,  110  111.  627,  51  Am.  Rep.  706,  the  defendant  was 
kidnapped  in  Peru,  and  brought  over  to  the  state  of  California,  where 
he  was  extradited  on  a  requisition  from  the  state  of  Illinois,  on  a  charge 
of  larceny,  and  returned  to  the  state  of  Illinois  whence  he  had  fled, 
and  there  tried  on  a  charge  of  embezzlement,  and  it  was  held  that  de- 
fendant had  no  valid  ground  of  objection  to  the  jurisdiction  of  the 
court  which  tried  him.  Carried  on  error  to  the  Supreme  Court  of  the 
United  States,  the  judgment  was  affirmed.  119  U.  S.  436,  7  Sup.  Ct. 
225,  30  L.  Ed.  421. 

In  Malion  v.  Justice,  127  U.  S.  700,  8  Sup.  Ct.  1204,  32  L.  Ed.  283, 
the  defendant  was  kidnapped  in  W^est  Virginia  and  forcibly  carried 


Ch.  4)  JURISDICTION   OP   STATES  415 

back  to  Kentucky  and  held  for  trial  of  a  crime  alleged  to  have  been 
committed  in  that  state.  The  Governor  of  West  Virginia  demanded 
that  defendant  be  restored,  and  meeting  with  refusal,  resorted  to  habeas 
corpus  in  order  to  effect  his  restoration.  The  Circuit  Court  of  the 
United  State?  refused  to  discharge  the  defendant,  and  on  appeal  to 
the  Supreme  Court  this  judgment  was  affirmed.  In  that  case  it  was 
contended  that  a  right  of  asylum  in  the  state  to  which  he  had  fled,  was 
possessed  by  the  fugitive,  which  the  federal  courts  should  enforce; 
but  this  right  was  declared  in  that  case  to  have  no  existence  under  the 
laws  of  the  United  States,  nor  did  they  make  any  provision  for  the  re- 
turn of  parties  who  without  lawful  authority  had  been  abducted  from 
another  state ;  and  that  such  forcible  abduction  from  another  state  did 
not  affect  or  impair  the  jurisdiction  of  the  state  to  which  they  were 
brought,  to  try  them  for  crimes  committed  therein. 

That  the  jurisdiction  of  the  court  in  which  the  indictment  is  found 
is  not  impaired  by  the  method  used  to  bring  the  accused  before  it,  was 
the  rule  at  common  law  and  was  declared  in  the  early  case  of  Ex  parte 
Scott,  9  Barn.  &  C.  446.  The  result  of  the  authorities  heretofore  cited 
is  in  the  same  direction. 

There  are  a  few  others  opposed  to  this  view ;  among  them  are  State 
V.  Hall,  40  Kan.  338,  19  Pac.  918,  10  Am.  St.  Rep.  200;  Ex  parte  Mc- 
Knight,  48  Ohio  St.  588,  28  N.  E.  Rep.  1034,  14  E.  R.  A.  128;  Can- 
non's Case,  47  Mich.  481,  11  N.  W.  280;  but  we  are  quite  satisfied, 
both  upon  reason  and  authority,  that  the  rule  announced  in  the  former 
cases  is  the  correct  one  and  should  prevail. 

Therefore  judgment  affirmed.    All  concur.^^ 

V, 


CHARETON  v.  KEEEY. 

(Supreme  Court  of  tlie  United  States,  1913.    229  U.  S.  447,  33  Sup.  Ct.  945,  57 
L.  Ed.  1274,  46  L.  R.  A.  [N.  S.]  397.) 

This  is  an  appeal  from  a  judgment  dismissing  a  petition  for  a  writ 
of  habeas  corpus  and  remanding  the  petitioner  to  custody  under  a 
warrant  for  his  extradition  as  a  fugitive  from  the  justice  of  the  king- 
dom of  Italy. 

The  proceedings  for  the  extradition  of  the  appellant  were  begun 
upon  a  complaint  duly  made  by  the  Italian  Vice  Consul,  charging  him 
with  the  commission  of  a  murder  in  Italy.    A  warrant  was  duly  issued 

87  The  leading  cases  on  interstate  rendition  are :  Kentucky  v.  Dennison,  24 
How.  66,  16  L».  Ed.  717  (1860)  ;  Ex  parte  Reggel,  114  U.  S.  642,  5  Sup.  Ct. 
1148,  29  L.  Ed.  250  (1885)  ;  Mahon  v.  Justice,  127  U.  S.  700,  8  Sup.  Ct.  1204.  32 
L.  Ed.  283  (1888)  ;  Lascelles  v.  Georgia,  148  U.  S.  537,  13  Sup.  Ct.  687,  37  L. 
Ed.  549  (1893).  State  v.  Pattesron,  supra,  states  the  law  more  briefly  and 
dtes  authorities.  As  to  the  legal  meaning  of  the  phrase  "fugitive  from  jus- 
tice," see  Kingsbury's  Case,  106  Masa.  223  (1S70),  and  Jones  v.  Leonard,  50 
Iowa,  106,  32  Am.  Kep.  110  (1S78). 


416  RIGHTS  AND   DUTIES  OF   NATIONS   IN  TIME  OF   PEACE       (Part  1 

by  the  Hon.  John  A.  Blair,  one  of  the  judges  of  New  Jersey,  qualified 
to  sit  as  a  committing  magistrate  in  such  a  proceeding,  under  section 
5270,  Rev.  Stat.  (Comp.  St.  §  10110).  At  the  hearing,  evidence  was 
produced  which  satisfied  Judge  Blair  that  the  appellant  was  a  fugitive 
from  justice  and  that  he  was  the  person  whose  return  to  Italy  was 
desired,  and  that  there  was  probable  cause  for  holding  him  for  trial 
upon  the  charge  of  murder,  committed  there.  He  thereupon  committed 
the  appellant,  to  be  held  until  surrendered  under  a  warrant  to  be  is- 
sued by  the  Secretary  of  State.  A  transcript  of  the  evidence  and  of 
the  findings  was  duly  certified  as  required  by  section  5270,  Rev.  Stat., 
and  a  warrant  in  due  form  for  his  surrender  was  issued  by  the  Secre- 
tary of  State.  Its  execution  has,  up  to  this  time,  been  prevented  by  the 
habeas  corpus  proceedings  in  the  court  below  and  the  pendency  of  this 
appeal.     *     *     * 

Mr.  Justice  Lurton,  after  making  the  foregoing  statement,  delivered 
the  opinion  of  the  court.     *     *     * 

The  objections  which  are  relied  upon  for  the  purpose  of  defeating 
extradition  may  be  conveniently  summarized  and  considered  under 
four  heads : 

1.  That  evidence  of  the  insanity  of  the  accused  was  offered  and  ex- 
cluded. 

2.  That  the  evidence  of  a  formal  demand  for  the  extradition  of  the 
accused  was  not  filed  until  more  than  forty  days  after  the  arrest. 

3.  That  appellant  is  a  citizen  of  the  United  States,  and  that  the  treaty 
in  providing  for  the  extradition  of  "persons"  accused  of  crime  does  not 
include  persons  who  are  citizens  or  subjects  of  the  nation  upon  whom 
the  demand  is  made. 

4.  That  if  the  word  "person"  as  used  in  the  treaty  includes  citizens 
of  the  asylum  country,  the  treaty,  in  so  far  as  it  covers  that  subject, 
has  been  abrogated  by  the  conduct  of  Italy  in  refusing  to  deliver  up  its 
own  citizens  upon  the  demand  of  the  United  States,  and  by  the  enact- 
ment of  a  municipal  law,  since  the  treaty,  forbidding  the  extradition  of 
citizens. 

We  will  consider  these  objections  in  their  order:     *     *     * 

3.  By  article  1  of  the  extradition  treaty  with  Italy  the  two  govern- 
ments mutually  agree  to  deliver  up  all  persons,  who,  having  been  con- 
victed of  or  charged  with  any  of  the  crimes  specified  in  the  following 
article,  committed  within  the  jurisdiction  of  one  of  the  contracting  par- 
ties, shall  seek  an  asylum  in  the  other,  etc.  It  is  claimed  by  counsel  for 
the  appellant  that  the  word  "persons"  as  used  in  this  article  does 
not  include  persons  who  are  citizens  of  the  asylum  country. 

That  the  word  "persons"  etymologically  includes  citizens  as  well 
as  those  who  are  not,  can  hardly  be  debatable.     *     *     * 

The  conclusion  we  reach  is,  that  there  is  no  principle  of  international 
law  by  which  citizens  are  excepted  out  of  an  agreement  to  surrender 
"persons,"  where  no  such  exception  is  made  in  the  treaty  itself.    Upon 


Ch.  4)  JURISDICTION   OF  STATES  417 

the  contrary,  the  word  "persons"  includes  all  persons  when  not  quali- 
fied as  it  is  in  some  of  the  treaties  between  this  and  other  nations. 
That  this  country  has  made  such  an  exception  in  some  of  its  conven- 
tions and  not  in  others,  demonstrates  that  the  contracting  parties  were 
fully  aware  of  the  consequences  unless  there  was  a  clause  qualifying 
the  word  "persons."  This  interpretation  has  been  consistently  up- 
held by  the  United  States,  and  enforced  under  the  several  treaties  which 
do  not  exempt  citizens.  That  Italy  has  not  conformed  to  this  view, 
and  the  effect  of  this  attitude  will  be  considered  later.  But  that  the 
United  States  has  always  construed  its  obligation  as  embracing  its 
citizens  is  illustrated  by  the  action  of  the  executive  branch  of  the 
government  in  this  very  instance.  A  construction  of  a  treaty  by  the 
political  department  of  the  government,  while  not  conclusive  upon  a 
court  called  upon  to  construe  such  a  treaty  in  a  matter  involving  per- 
sonal rights,  is  nevertheless  of  much  weight.     *     *     * 

4.  We  come  now  to  the  contention  that  by  the  refusal  of  Italy  to 
deliver  up  fugitives  of  Italian  nationahty,  the  treaty  has  thereby  ceas- 
ed to  be  of  obligation  on  the  United  States.  The  attitude  of  Italy  is 
indicated  by  its  Penal  Code  of  1900  which  forbids  the  extradition  of 
citizens,  and  by  the  denial  in  two  or  more  instances  to  recognize  this 
obligation  of  the  treaty  as  extending  to  its  citizens.     *     *     * 

The  attitude  of  the  Italian  government  indicated  by  proffering  this 
request  for  extradition  "in  accordance  with  article  V  of  the  Treaty 
of  1868,"  is,  as  shown  by  the  communication  of  July  1st  set  out  above, 
substantially  this : 

First.  That  crimes  committed  by  an  American  in  a  foreign  country 
were  not  justiciable  in  the  United  States,  and  must,  therefore,  go  un- 
punished unless  the  accused  be  delivered  to  the  country  wherein  the 
crime  was  committed  for  trial. 

Second.  Such  was  not  the  case  with  Italy,  since  under  the  laws  of 
Italy,  crimes  committed  by  its  subjects  in  foreign  lands  were  justiciable 
in  Italy. 

Third.  That  as  a  consequence  of  the  difference  in  the  municipal  law, 
"it  was  logical  that  so  far  as  parity  in  the  matter  of  extraditing  their 
respective  citizens  or  subjects  is  concerned,  each  party  should,  in  the 
absence  of  specific  provisions  in  the  Convention  itself,  be  guided  by 
the  spirit  of  its  own  legislation." 

This  adherence  to  a  view  of  the  obligation  of  the  treaty  as  not  re- 
quiring one  country  to  surrender  its  nationals  while  it  did  the  other, 
presented  a  situation  in  which  the  United  States  might  do  either  of 
two  things,  naijiely :  Abandon  its  own  interpretation  of  the  word  "per- 
sons" as  including  citizens,  or  adhere  to  its  own  interpretation  and 
surrender  the  appellant,  although  the  obligation  had,  as  to  nationals, 
ceased  to  be  reciprocal.  The  United  States  could  not  yield  its  own  in- 
terpretation of  the  treaty,  since  that  would  have  had  the  most  serious 
Scott  Int. Law — 27 


418  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

consequence  on  five  other  treaties  in  whicli  the  word  "persons"  had 
been  used  in  its  ordinary  meaning,  as  inchiding  all  persons,  and,  there- 
fore, not  exempting  citizens.  If  the  attitude  of  Italy  was,  as  contended, 
a  violation  of  the  obligation  of  the  treaty,  which,  in  international  law, 
would  have  justified  the  United  States  in  denouncing  the  treaty  as 
no  longer  obligatory,  it  did  not  automatically  have  that  effect.  If  the 
United  States  elected  not  to  declare  its  abrogation,  or  come  to  a  rup- 
tttre,  the  treaty  would  remain  in  force.  It  was  only  voidable,  not 
void ;  and  if  the  United  States  should  prefer,  it  might  waive  any  breach 
which  in  its  judgment  had  occurred  and  conform  to  its  own  obligation 
as  if  there  had  been  no  such  breach.    1  Kent's  Comm.  p.  175.     *     *     * 

That  the  political  branch  of  the  government  recognizes  the  treaty 
obligation  as  still  existing  is  evidenced  by  its  action  in  this  case.  In 
the  memorandum  giving  the  reasons  of  the  Department  of  State  for 
determining  to  surrender  the  appellant,  after  stating  the  difference  be- 
tween the  two  governments  as  to  the  interpretation  of  this  clause  of  the 
treaty,  Mr.  Secretary  Knox  said : 

"The  question  is  now  for  the  first  time  presented  as  to  whether  or 
not  the  United  States  is  under  obligation  under  treaty  to  surrender  to 
Italy  for  trial  and  punishment  citizens  of  the  United  States  fugitives 
from  the  justice  of  Italy,  notwithstanding  the  interpretation  placed  up- 
on the  treaty  of  Italy  with  reference  to  Italian  subjects.  In  this  con- 
nection it  should  be  observed  that  the  United  States,  although,  as  stated 
above,  consistently  contending  that  the  Italian  interpretation  was  not 
the  proper  one,  has  not  treated  the  Italian  practice  as  a  breach  of  the 
treaty  obligation  necessarily  requiring  abrogation,  has  not  abrogated  the 
treaty  or  taken  any  step  looking  thereto,  and  has,  on  the  contrary, 
constantly  regarded  the  treaty  as  in  full  force  and  effect  and  has  an- 
swered the  obligations  imposed  thereby  and  has  invoked  the  rights 
therein  granted.  It  should,  moreover,  be  observed  that  even  though 
the  action  of  the  Italian  government  be  regarded  as  a  breach  of  the 
treaty,  the  treaty  is  binding  until  abrogated,  and  therefore  the  treaty 
not  having  been  abrogated,  its  provisions  are  operative  against  us. 

"The  question  would,  therefore,  appear  to  reduce  itself  to  one  of 
interpretation  of  the  meaning  of  the  treaty,  the  government  of  the 
United  States  being  now  for  the  first  time  called  upon  to  declare  wheth- 
er it  regards  the  treaty  as  obliging  it  to  surrender  its  citizens  to  Italy, 
notwithstanding  Italy  has  not  and  insists  it  can  not  surrender  its  citizens 
to  us.  It  should  be  observed,  in  the  first  place,  that  we  have  always 
insisted  not  only  with  reference  to  the  Italian  extradition  treaty,  but 
with  reference  to  the  other  extradition  treaties  similarly  phrased  that 
the  word  'persons'  includes  citizens.  We  are,  therefore,  committed 
to  that  interpretation.  The  fact  that  we  have  for  reasons  already  given 
ceased  generally  to  make  requisition  upon  the  government  of  Italy  for 
the  surrender  of  Italian  subjects  under  the  treaty,  would  not  require 

Scott  Int.Law 


Ch.  4)  JURISDICTION    OF    STATES  419 

of  necessity  that  we  should,  as  a  matter  of  logic  or  law,  regard  ourselves 
as  free  from  the  obligation  of  surrendering  our  citizens,  we  laboring 
under  no  such  legal  inhibition  regarding  surrender  as  operates  against 
the  government  of  Italy.  Therefore,  since  extradition  treaties  need 
not  be  reciprocal,  even  in  the  matter  of  the  surrendering  of  citizens, 
it  would  seem  entirely  sound  to  consider  ourselves  as  bound  to  surren- 
der our  citizens  to  Italy  even  though  Italy  should  not,  by  reason  of 
the  provisions  of  her  municipal  law  be  able  to  surrender  its  citizens 
to  us." 

The  executive  department  having  thus  elected  to  waive  any  right 
to  free  itself  from  the  obligation  to  deliver  up  its  own  citizens,  it  is 
the  plain  duty  of  this  court  to  recognize  the  obligation  to  surrender  the 
appellant  as  one  imposed  by  the  treaty  as  the  supreme  law  of  the  land 
and  as  affording  authority  for  the  warrant  of  extradition. 

Judgment  affirmed.*^ 

S8  The  duty  of  the  Secretary  of  State  has  usually  been  ministerial  or  ad- 
ministrative. In  the  Case  of  Jan  Janoff  Pouren,  whose  extradition  was 
requested  in  1908  by  Russia,  Secretary  of  State  Root  examined  the  record  as 
a  judicial  officer  on  appeal,  returning  it  to  the  Commissioner  before  Pouren 
had  been  tried  and  held  for  extradition,  in  order  to  admit  testimony  whicli 
had  not  been  submitted  by  counsel  for  the  prisoner,  but  which,  in  Secretary 
Root's  opinion,  would,  if  admitted,  have  shown  that  the  offenses  in  question 
were  of  a  political  nature. 

The  action,  and  the  reason  for  the  action,  are  thus  stated  by  Secretary 
Root,  in  a  memorandum  dated  October  23,  1908: 

"Id  this  case  the  decision  of  the  committing  magistrate  in  favor  of  extradi- 
tion was  filed  in  the  State  Department  on  the  11th  of  September,  1908.  Pend- 
ing the  consideration  of  the  record  facts  were  brought  to  my  attention  in  the 
form  of  affidavits  tending  to  show  that  the  case  comes  under  the  provisions  of 
article  III  of  the  Extradition  Convention  of  March  28,  1887,  which  provides : 

"  'If  it  be  made  to  appear  that  extradition  is  sought  with  a  view  to  try  or 
punish  the  person  demanded  for  an  offense  of  a  political  character,  surrender 
shall  not  take  place.' 

"On  the  7th  of  October  these  aflBdavits  were  transmitted  to  the  Russian 
Embassy.  Attention  was  called  to  the  fact  they  tended  to  establish,  with  an 
inquiry  as  to  whether  the  demanding  government  desired  to  controvert  the 
aflidavits  or  to  offer  any  observation  regarding  them. 

"On  the  13th  of  October  the  record  was  remitted  to  the  Commissioner,  with 
instructions  to  reopen  the  case  and  give  the  parties  an  opportunity  to  intro- 
duce further  testimony  upon  the  matters  of  fact  exhibited  in  the  affidavits. 

"The  counsel  for  the  Russian  government  has  now  invoked  the  action  of  the 
Circuit  Court  of  the  United  States  to  prevent  the  Commissioner  from  taking 
the  testimony  which  I  have  indicated,  upon  the  ground  that  the  Commission- 
er's jurisdiction  ceased  with  his  original  decision  and  could  not  be  revived  by 
the  remission  of  the  case  under  my  direction. 

"This  is  a  purely  technical  question  and  cannot  be  permitted  to  stand  in  the 
way  of  doing  substantial  justice  in  the  case.  The  i-esponsibility  of  finally 
determining  whether  the  man  is  to  be  extradited  or  not  rests  with  me,  and  I 
am  clear  that  I  ought  not  to  direct  his  extradition  without  having  before  me 
the  testimony  upon  the  matter  indicated  in  these  affidavits,  which  I  consider  to 
be  necessary  to  enable  me  to  determine  whether  the  case  comes  witliin  the 
provision  of  the  treaty  regarding  political  affairs.  I  dix^med  it  proper,  how- 
ever, to  give  to  the  demanding  government  an  opportunity,  if  it  saw  fit,  to 
cross-examine  the  witnesses  upon  the  matters  to  which  they  have  sworn  in 
the  affida\-its,  and  to  introduce  countervailing  testimony.  For  this  purpose 
the  matter  was  '•emitted  to  the  Connnissioner.  As  the  demanding  government 
has  not  chosen  to  avail  itself  of  this  opportunity  and  objects  to  ha\'ing  any 


4-20  RIGHTS  AXD   DUTIES   OF  NATIONS   IN   TIME  OF  PEACE       (Part  1 

In  re  CASTIONI. 
(Queen's  Bench.    [1891]  L.  E.  1  Q.  B.  DIv.  149.) 

Application  for  habeas  corpus.  The  motion  was  made  on  behalf  of 
Angelo  Castioni,  for  an  order  nisi  calling  upon  the  Solicitor  to  the 
Treasury,  Franklin  Lushington,  Esq.,  a  metropolitan  police  magistrate, 
and  the  consul  general  of  Switzerland,  as  representatives  of  the  Swiss 
Republic,  to  show  cause  why  a  writ  of  habeas  corpus  should  not  issue 
to  bring  up  the  body  of  Castioni  in  order  that  he  might  be  discharged 
from  custody. 

The  prisoner  Castioni  had  been  arrested  in  England  on  the  requi- 
sition of  the  Swiss  government,  and  brought  before  the  magistrate 
at  the  police  court  at  Bow  Street,  and  by  him  committed  to  prison 
for  the  purpose  of  extradition,  on  a  charge  of  willful  murder,  alleged 
to  have  been  committed  in  Switzerland. 

The  facts,  which  were  contained  in  depositions  sent  from  Switzer- 
land, in  the  depositions  taken  before  the  magistrate  at  Bow  Street, 
and  in  affidavits  used  on  the  hearing  of  the  motion  were  shortly  as 
follows : 

The  prisoner  was  charged  with  the  murder  of  Luigi  Rossi,  by  shoot- 
ing him  with  a  revolver  on  September  11,  1890,  in  the  town  of  Bel- 
linzona,  in  the  canton  of  Ticino,  in  Switzerland.  The  deceased,  Rossi, 
was  a  member  of  the  State  Council  of  the  canton  of  Ticino,  and  was 
about  twenty-six  years  of  age.  The  prisoner,  Castioni,  was  a  citizen 
of  the  same  canton ;  he  had  resided  for  seventeen  years  in  England, 
and  arrived  at  Bellinzona  on  September  10,  1890.  For  some  time 
previous  to  this  date  much  dissatisfaction  had  been  felt  and  expressed 
by  a  large  number  of  the  inhabitants  of  Ticino  at  the  mode  in  which 
the  political  party  then  in  power  were  conducting  the  government 
of  the  canton.  A  request  was  presented  to  the  government  for  a 
revision  of  the  constitution  of  the  canton,  under  art.  15  of  the  consti- 
tution, which  provides  that  "The  constitution  of  the  canton  may  be 
revised  wholly  or  partially.  *  *  *  (b)  At  the  request  of  7,000  citi- 
zens presented  with  the  legal  formalities.  In  this  case  the  council  shall 
within  one  month  submit  to  the  people  the  question  whether  or  not 
they  wish  to  revise  the  constitution,"  and  a  law  of  May  9,  1877,  pre- 

testimony  taken  in  the  pending  proceeding  and  denies  the  jurisdiction  of  the 
Commissioner  to  take  it,  and  as  I  do  not  deem  it  suitable  to  discuss  with  that 
government  this  purely  technical  question  of  internal  procedure,  I  shall 
obviate  the  necessity  of  further  proceedings  in  the  Circuit  Court  and  avoid 
the  course  to  which  the  demanding  Government  objects  by  dismissing  the 
present  proceeding  without  prejudice  to  the  right  of  the  demanding  Govern- 
men  to  initiate  a  new  proceeding  in  which  the  Commissioner  will  have  un- 
doubted jurisdiction  to  take  the  evidence."  Foreign  Relations  of  the  United 
States,  1909,  p.  517. 

In  accordance  with  these  views.  Secretary  Root  refused  to  issue  the  war- 
rant of  extradition. 


Ch.  4)  JURISDICTION   OF   STATES         .  421 

scribes  the  course  to  be  adopted  for  the  execution  of  letter  (b)  of 
art.  15. 

The  government  having  decHned  to  take  a  popular  vote  on  the 
question  of  the  revision  of  the  constitution,  on  September  11,  1890, 
a  number  of  the  citizens  of  Bellinzona,  among  whom  was  Castioni, 
seized  the  arsenal  of  the  town,  from  which  they  took  rifles  and  am- 
munition, disarmed  the  gendarmes,  arrested  and  bound  or  handcuffed 
several  persons  connected  with  the  government,  and  forced  them 
to  march  in  front  of  the  armed  crowd  to  the  municipal  palace.  Ad- 
mission to  the  palace  was  demanded  in  the  name  of  the  people,  and 
was  refused  by  Rossi  and  another  member  of  the  government,  who 
were  in  the  palace.  The  crowd  then  broke  open  the  outer  gate  of  the 
palace,  and  rushed  in,  pushing  before  them  the  government  officials 
whom  they  had  arrested  and  bound;  Castioni,  who  was  armed  with  a 
revolver  was  among  the  first  to  enter.  A  second  door,  which  was  lock- 
ed, was  broken  open,  and  at  this  time,  or  immediately  after,  Rossi,  who 
was  in  the  passage,  was  shot  through  the  body  with  a  revolver,  and  died 
very  soon  afterwards.  Some  other  shots  were  fired,  but  no  one  else  was 
injured.  Two  witnesses,  who  were  present  when  the  shot  was  fired,  and 
were  called  before  the  magistrate  at  Bow  Street,  identified  Castioni. as 
the  person  who  fired  the  shot.  One  of  the  witnesses  called  for  the  pris- 
oner was  an  advocate  named  Eruni,  who  had  taken  a  leading  part  in 
the  attack  on  the  municipal  palace.  In  cross-examination  he  said : 
"The  death  of  Rossi  was  a  misfortune,  and  not  necessary  for  the  ris- 
ing." There  was  no  evidence  that  Castioni  had  any  previous  knowledge 
of  Rossi.  The  crowd  then  occupied  the  palace,  disarmed  the  gendarmes 
who  were  there,  and  imprisoned  several  members  of  the  government. 
A  provisional  government  was  appointed,  of  which  Bruni  was  a 
member,  and  assumed  the  government  of  the  canton,  which  it  re- 
tained until  dispossessed  by  the  armed  intervention  of  the  federal 
government  of  the  Republic. 

The  magistrate  was  of  opinion  that  the  identification  of  Castioni 
was  sufficient,  and  held  iipon  the  evidence  that  the  bar  to  extradition 
specified  in  section  3  of  the  Extradition  Act,  1870,^®  did  not  exist,  and 
committed  Castioni  to  prison. 

Den  MAN,  J.^°  *  ■'■  *  I  am  unable  to  entertain  a  doubt  that  this 
is  a  case  in  which  we  ought  to  order  that  the  prisoner  be  discharged. 

There  has  been  no  legal  decision  as  yet  upon  the  meaning  of  the 

8  9  33  &  34  Vict.  c.  52,  §  3:  "The  following  restrictions  shall  be  observed 
with  rt'spc'ct  to  the  surrender  of  fugitive  criminals : 

"A  fugitive  criminal  shall  not  be  surrendered  if  the  offence  in  respect  of 
which  his  surrender  is  demanded  is  one  of  a  political  character,  or  if  he  prove 
to  the  satisfaction  of  the  police  magistrate,  or  the  court  before  whom  he  is 
brought  on  habeas  corpus,  or  to  the  Secretary  of  State,  that  the  requisition 
for  liis  surrender  has  in  fact  been  made  with  a  view  to  try  or  punish  him  for 
an  offence  of  a  political  character.     *     *     *  " 

»o  Parts  of  the  opinions  of  Denman  and  Hawkins,  J  J.,  and  the  concurring 
opinion  of  Stephen,  J.,  are  omitted. 


422  RIGHTS   AND    DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

words  contained  in  the  act  of  1870,  upon  the  true  meaning  of  which  this 
case  mainly  depends.     *     *     * 

I  look  at  the  words  of  the  act  themselves  and  I  think  that  they  are 
against  any  such  narrow  technical  mode  of  dealing  with  the  case. 
The  words  of  section  3,  subd.  1,  are  "a  fugitive  criminal  shall  not  be 
surrendered  if  the  offence  in  respect  of  which  his  surrender  is  demand- 
ed is  one  of  a  political  character."  The  section  itself  begins :  "The 
following  restrictions  shall  be  observed  with  respect  to  the  surrender  of 
fugitive  criminals."     *     *     * 

It  seems  to  me  that  it  is  a  question  of  mixed  law.  and  fact — main- 
ly indeed  of  fact — as  to  whether  the  facts  are  such  as  to  bring  the 
case  within  the  restriction  of  section  3,  and  to  show  that  it  was  an 
offence  of  a  political  character.  I  do  not  think  it  is  disputed,  or  that 
now  it  can  be  looked  upon  as  in  controversy,  that  there  was  at  this 
time  existing  in  Ticino  a  state  of  things  which  would  certainly  show 
that  there  was  more  than  a  mere  small  rising  of  a  few  people  against 
the  law  of  the  state.  I  think  it  is  clearly  made  out  by  the  facts  of 
this  case,  that  there  was  something  of  a  very  serious  character  going 
on — amounting,  I  should  go  so  far  as  to  say,  in  that  small  com- 
munity, to  a  state  of  war.  There  was  an  armed  body  of  men  who 
had  seized  arms  from  the  arsenal  of  the  state;  they  were  rushing 
into  the  municipal  council  chamber  in  which  the  government  of  the 
state  used  to  assemble ;  they  demanded  admission  ;  admission  was 
refused ;  some  firing  took  place ;  the  outer  gate  was  broken  down ; 
and  I  think  it  also  appears  perfectly  plain  from  the  evidence  in  the 
case  that  Castioni  was  a  person  who  had  been  taking  part  in  that 
movement  at  a  much  earlier  stage.  He  was  an  active  party  in  the 
movement ;  he  had  taken  part  in  the  binding  of  one  member  of  the 
government.  Some  time  before  he  arrived  with  his  pistol  in  his  hand 
at  the  seat  of  government,  he  had  gone  with  multitudes  of  men,  armed 
with  arms  from  the  arsenal,  in  order  to  attack  the  seat  of  government, 
and  I  think  it  must  be  taken  that  it  is  quite  clear  that  from  the  very  first, 
he  was  an  active  party,  one  of  the  rebellious  party  who  was  acting  and 
in  the  attack  against  the  government.  Now,  that  being  so,  it  resolves 
itself  into  a  small  point,  depending  on  the  evidence  which  was  taken 
before  the  magistrate,  and  anything  that  we  can  collect  from  the  evi- 
dence that  we  have  before  us  and  from  the  whole  circumstances  of  the 
case.     *     *     * 

I  have  carefully  followed  the  discussion  as  to  the  facts  of  the  case, 
and  if  it  were  necessary  I  could  go  through  them  all  one  by  one,  and 
point  out,  I  think,  that,  looking  at  the  way  in  which  that  evidence  was 
given,  and  at  the  evidence  itself,  there  is  nothing  in  my  judgment  to 
displace  the  view  which  I  take  of  the  case,  that  at  the  moment  at 
which  Castioni  fired  the  shot,  the  reasonable  presumption  is,  not  that 
it  is  a  matter  of  absolute  certainty  (we  cannot  be  absolutely  certain 
about  anything  as  to  men's  motives)  but  the  reasonable  assumption  is 


Ch.  4)  JURISDICTION   OP   STATES  423 

that  he,  at  the  moment  knowhig  nothing  about  Rossi,  having  no  spite 
or  ill  will  against  Rossi,  as  far  as  we  know,  fired  that  shot ;  that  he 
fired  it  thinking  it  would  advance,  and  that  it  was  an  act  which  was 
in  furtherance  of,  and  done  intending  it  to  be  in  furtherance  of  the 
very  object  which  the  rising  had  taken  place  in  order  to  promote, 
and  to  get  rid  of  the  government,  who,  he-  might,  until  he  had  ab- 
solutely got  into  the  place,  have  supposed  were  resisting  the  entrance 
of  the  people  to  that  place.  That,  I  think,  is  the  fair  and  reasonable 
presumption  to  draw  from  the  facts  of  the  case.  I  do  not  know  that 
it  is  necessary  to  give  any  opinion  as  to  the  exact  moment  when  the 
shot  was  fired ;  there  is  some  conflict  about  it.  There  is  evidence  that 
there  was  great  confusion ;  there  is  evidence  of  shots  fired  after  the 
shot  which  Castioni  fired;  and  all  I  can  say  is,  that  looking  at  it  as 
a  question  of  fact,  I  have  come  to  the  conclusion  that  at  the  time  at 
which  that  shot  was  fired  he  acted  in  the  furtherance  of  the  unlawful 
rising  to  which  at  that  time  he  was  a  party,  and  an  active  party — a 
person  who  had  been  doing  active  work  from  a  very  much  earlier 
period,  and  in  which  he  was  still  actively  engaged.  That  being  so,  I 
think  the  writ  ought  to  issue,  and  that  we  should  be  acting  contrary  to 
the  spirit  of  this  enactment,  and  to  the  fair  meaning  of  it,  if  we  were 
to  allow  him  to  be  detained  in  custody  longer. 

Hawkins,  J.  I  am  of  the  same  opinion.  The  prisoner  is  asked  to  be 
given  up  on  a  charge  of  that  which  undoubtedly  is  an  extradition 
crime  under  this  treaty — that  is,  for  the  crime  of  murder,  and  un- 
doubtedly he  ought  to  be  so  given  up,  provided  there  is  prima  facie 
evidence  of  the  crime  of  murder  having  been  committed,  unless,  in- 
deed, it  is  shown  that  the  oft'ence  of  murder  in  respect  of  which  his 
surrender  is  asked,  is  one  which  was  a  political  offence.  Now,  the 
question  whether  there  is  a  prima  facie  evidence  that  Castioni  com- 
mitted an  extradition  crime — that  is,  the  crime  of  murder — is  one 
which  I  may  dispose  of  in  a  very  few  words.  Nobody  can  doubt  that 
Rossi  was  shot  by  a  revolver  fired  by  Castioni ;  about  that  there 
seems  to  be  no  real  question.  Under  what  circumstances  he  shot  him, 
and  when,  possibly  would  be  matters  which  would  be  capable  of  argu- 
ment before  the  tribunal  before  whom  he  might  be  tried.  Of  course, 
if  it  could  be  established  before  the  court  that  he  had  deliberately 
taken  a  pistol,  and  that  he  had  aimed  it  at  Rossi  without  any  justifica- 
tion of  any  sort  or  kind,  and  had  caused  the  death  of  Rdssi,  there 
would  have  been  an  abundant  case — a  case  on  which  he  ought  to  have 
been  tried  according  to  our  law  for  the  crime  of  murder,  and  punished 
in  res-pect  of  that  crime;  but  it  is  said — and  said,  I  think,  rightly — 
that  he  ought  not  to  be  given  up  upon  this  ground — that  the  oft'ence  of 
which  he  was  guilty,  if  he  was  guilty  of  that  offence,  was  of  a  political 
character.  That  is,  the  murder  with  which  he  is  charged  was  in  itself 
of  a  political  character.  Now,  the  matter  has  been  before  the  magis- 
trate, and  the  magistrate,  acting  upon  the  information  and  the  evidence 
before  him,  has  come  to  the  conclusion  that  two  things  exist:     First 


424  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

of  all,  that  there  is  abundance  of  evidence  to  justify  him  in  committing 
the  man  to  be  tried  for  murder — that  is  to  say,  there  would  have  been 
had  his  crime  been  committed  in  this  country;  and  secondly,  he  has 
come  to  the  conclusion,  rightly  or  wrongly,  on  which  I  shall  have  a 
word  or  tw^o  to  say,  that  the  offence  was  not  of  a  political  cHaracter, 
and  that  therefore  he  ought  to  be  given  up.  The  matter  now  comes 
before  us — I  will  not  say  to  review  the  whole  of  his  decision — but  to 
ask  ourselves  as  to  whether  or  not,  having  regard  to  the  whole  of  the 
circumstances  which  are  now  brought  to  our  attention,  and  which 
are  proved  by  the  depositions  and  other  evidence  in  the  case,  we  come 
to  the  same  conclusion  as  the  magistrate,  or  whether  we  deliberately 
arrive  at  an  opposite  conclusion.     *     *     * 

Now,  I  entirely  dissent,  and  I  think  all  reasonable  persons  woulcl 
dissent,  from  the  proposition  that  any  act  done  in  the  course  of  a 
political  rising,  or  in  the  course  of  any  insurrection  is  necessarily  of 
a  political  character.  Everybody  would  agree,  I  think,  with  this — 
that  it  is  not  everything  done  during  the  period  during  which  a  political 
rising  exists  that  could  be  said  to  be  of  a  political  character.  A  man 
might  be  joining  in  an  insurrection,  joining  in  a  rising,  joining  in  that 
which  in  itself  is  a  pure  political  matter,  but  notwithstanding  that  he 
was  engaged  in  a  political  rising,  if  he  were  deliberately,  for  a  matter 
of  private  revenge  or  for  the  purpose  of  doing  injury  to  another,  to 
shoot  an  unoffending  man,  because  he  happened  himself  to  be  one  of 
an  insurgent  crowd,  and  had  a  revolver  in  his  hand,  no  reasonable  man 
would  question  that  he  was  guilty  of  the  crime  of  murder,  because 
that  offence  so  committed  by  him  could  not  be  said  to  have  any  rela- 
tion at  all  to  a  political  crime,  namely,  a  crime  which  in  law  ought  to 
be  punished  with  the  punishment  awarded  for  such  a  crime. 

Now  what  is  the  meaning  of  crime  of  a  political  character?  I  have 
thought  over  this  matter  very  much  indeed,  and  I  have  thought  wheth- 
er any  definition  can  be  given  of  the  political  character  of  the  crime — 
I  mean  to  say,  in  language  which  is  satisfactory.  I  have  found  none 
at  all,  and  I  can  imagine  for  myself  none  so  satisfactory,  and  to  my 
mind  so  complete,  as  that  which  I  find  in  a  work  which  I  have  now 
before  me,  and  the  language  of  which  for  the  purpose  of  my  present 
judgment  I  entirely  adopt,  and  that  is  the  expression  of  my  brother 
Stephen  in  his  History  of  the  Criminal  Law  of  England  in  volume  2, 
pp.  70,  7l.  I  will  not  do  more  than  refer  to  the  interpretations,  other 
than  those  with  which  he  agrees,  which  have  been  given  upon  this 
expression,  "political  character" ;  but  I  adopt  his  definition  absolutely. 
"The  third  meaning  which  may  be  given  to  the  words,  and  which  I 
take  to  be  the  true  meaning,  is  somewhat  more  complicated  than  either 
of  those  I  have  described.  An  act  often  falls  under  several  dift"erent 
definitions.  For  instance,  if  a  civil  war  were  to  take  place,  it  would 
be  high  treason  by  levying  war  against  the  Queen.  Every  case  in 
which  a  man  was  shot  in  action  would  be  murder.  Whenever  a  house 
was  burnt  for  military  purposes  arson  would  be  committed.    To  take 


Ch.  4)  JURISDICTION   OF   STATES  42o 

cattle,  etc.,  by  requisition  would  be  robbery.  According  to  the  common 
use  of  language,  however,  all  such  acts  would  be  political  offences, 
because  they  would  be  incidents  in  carrying  on  a  civil  war.  I  think, 
therefore,  that  the  expression  in  the  Extradition  Act  ought  (unless 
some  better  interpretation  of  it  can  be  suggested)  to  be  interpreted  to 
mean  that  fugitive  criminals  are  not  to  be  surrendered  for  extradition 
crimes,  if  those  crimes  were  incidental  to  and  formed  a  part  of  po- 
litical disturbances.  I  do  not  wish  to  enter  into  details  beforehand  on 
a  subject  which  might  at  any  moment  come  under  judicial  considera- 
tion." The  question  has  come  under  judicial  consideration,  and  hav- 
ing had  the  opportunity  before  this  case  arose  of  carefully  reading 
and  considering  the  views  of  my  learned  brother,  having  heard  all 
that  can  be  said  upon  the  subject,  I  adopt  his  language  as  the  definition 
that  I  think  is  the  most  perfect  to  be  found  or  capable  of  being  given 
as  to  what  is  the  meaning  of  the  phrase  which  is  made  use  of  in  the 
Extradition  Act. 

Now,  was  this  act  done  by  Castioni  of  a  political  character?  That 
there  was  a  general  rising  of  one  party  there  can  be  no  doubt.  They 
were  as  it  were  levying  war  against  the  Government.  That  they  an- 
ticipated violence  or  violent  resistance  there  can  be  little  doubt.  The 
very  fact  that  five  men  of  the  opposite  party  were  bound  and  put  in 
front  of  those  who  were  making  the  attack  shews  the  object.  "We 
expect  an  attack  to  be  made  upon  us;  we  expect  personal  violence; 
and  these  five  .persons  are  the  most  likely  if  they  are  put  in  front  to 
deter  those  who  would  offer  violence  to  us  from  doing  so."  I  think  it 
is  immaterial  whether  or  not  one  gate  was  broken  open,  or  whether 
the  gates  had  been  burst  open  or  not.  The  question  really  is  whether 
or  not  this  was  an  act  done  by  this  prisoner  in  his  character  of  a 
political  insurgent  at  that  time,  and  I  do  not  think  it  signifies  whether 
or  not  he  had  come  into  Bellinzona  on  the  day  before,  or  in  the  morn- 
ing of  the  day  on  which  this  occurrence  took  place.  If  he  was  a 
citizen  of  the  place,  taking  his  part  in  a  movement  of  a  political  char- 
acter, which  he  chose  to  join  in  because  he  thought  it  was  for  the 
benefit  of  the  political  side  to  which  he  desired  to  attach  himself,  I 
cannot  come  to  the  conclusion  that  he  is  to  be  deprived  of  the  privilege 
of  the  refuge  afforded  to  him  simply  because,  even  after  the  palace  was 
broken  into,  having  a  revolver  in  his  hand,  he  did  make  use  of  it  in  a 
way  which  is  very  much  indeed  to  he  deplored,  because  I  find  no  evi- 
dence which  satisfies  me  that  his  object  in  firing  at  Rossi  was  to  take 
that  poor  man's  life,  or  to  pay  off  any  old  grudge  which  he  had  against 
him,  or  to  revenge  himself  for  anything  in  the  least  degree  which  Rossi 
or  any  one  of  the  community  had  ever  personally  done  to  him.  When  it 
is  said  that  he  took  aim  at  Rossi,  there  is  not  a  particle  of  evidence 
that  Rossi  was  even  known  to  him  by  name. 

I  cannot  help  thinking  that  everybody  knows  there  are  many  acts 
of  a  political  character  done  without  reason,  done  against  all  reason; 
but  at  the  sanxi  time,  one  cannot  look  too  hardly  and  weigh  in  golden 


426  EIGHTS   AND   DUTIES   OF   NATION'S   IN   TIME   OF   PEACE       (Part  1 

scales  the  acts  of  men  hot  in  their  political  excitement.  We  know  that 
in  heat  and  in  heated  blood  men  often  do  things  which  are  against 
and  contrary  to  reason;  but  none  the  less  an  act  of  this  description 
may  be  done  for  the  purpose  of  furthering  and  in  furtherance  of  a 
political  rising,  even  though  it  is  an  act  which  may  be  deplored  and 
lamented,  as  even  cruel-  and  against  all  reason,  by  those  who  can 
calmly  reflect  upon  it  after  the  battle  is  over. 

For  the  reasons  I  have  expressed,  I  am  of  opinion  that  this  rule 
ought  to  be  made  absolute,  and  that  the  prisoner  ought  to  be  dis- 
charged.®^ 

01  In  Re  Ezeta  (D.  C.)  62  Fed.  972,  998,  999  (1S94),  Judge  Morrow  says: 
"In  the  Castioni  Case,  supra,  decided  in  1891,  the  question  was  discussed  by 
the  most  eminent  counsel  at  the  English  bar,  and  considered  by  distinguished 
judges,  without  a  definition  being  framed  that  would  draw  a  fixed  and  certain 
line  between  a  municipal  or  common  crime  and  one  of  a  political  character. 
*  *  *  Applying,  by  analogy,  the  action  of  the  English  court  in  that  case 
to  the  four  cases  now  before  me,  under  consideration,  the  conclusion  follows 
that  the  crimes  charged  here,  associated  as  they  are  with  the  actual  conflict 
of  armed  forces,  are  of  a  political  character." 

For  further  illustrations  of  political  and  non-extraditable  offences  see  Cazo's 
Case,  1887,  in  1  Moore  on  Extradition,  324;  The  St.  Alban's  Raid,  1864,  Id. 
322 ;    Burley's  Case,  1864,  Id.  319. 

''Political  Offences:  'Most  codes  extend  their  definitions  of  treason  to  acts 
not  really  against  one's  country.  They  do  not  distinguish  between  acts  against 
the  government  and  acts  against  the  oppressions  of  the  government.  The 
latter  are  virtues,  yet  have  furnished  more  victims  to  the  executioner  than  the 
former.  *  *  *  The  unsuccessful  strugglers  against  tyranny  have  been 
the  chief  martyrs  of  treason  laws  in  all  countries.  *  *  *  Treasons,  then, 
taking  the  simulated  with  the  real,  are  sufficiently  punished  by  exile.'  Jeffer- 
son to  Carmichael  and  Short,  1792,  1  Am.  St.  Pap.  For.  Rel.  258. 

"In  recent  years  there  has  been  much  discussion  as  to  the  nature  of  the  crime 
committed  in  the  assassination  of  the  head  of  a  government  and  of  other  public 
oflicials ;  whether  it  is  to  be  put  upon  the  footing  of  ordinary  murder,  or 
whether  it  shall  be  classed  among  those  political  offences  which  are  exempt 
from  extradition  proceedings.  Is  it  possible  to  make  a  distinction,  as  Mr. 
Jefferson  suggests,  between  acts  directed  against  tyranny,  and  those  of  a 
mere  common-law  character?  Some  such  distinction  has  probably  influenced 
statesmen  in  their  dealings  with  the  question  of  extradition.  But  as  offences 
of  this  class  have  become  more  common  and  have  invaded  the  dominions  of 
the  most  liberal  governments,  public  opinion  would  seem  to  be  undergoing  a 
change  in  regard  to  them. 

"Soon  after  the  assassination  of  President  Garfleld,  the  United  States  govern- 
ment entered  into  two  treaties  of  extradition — that  with  Belgium  of  1882,  and 
that  with  Luxembourg  of  1883 — in  which  it  is  stipulated  that  'an  attempt 
against  the  life  of  the  head  of  a  foreign  government  or  against  that  of  any 
member  of  his  family,  when  such  attempt  comprises  the  act  either  of  murder 
or  assassination  or  of  poisoning,  shall  not  be  considered  a  political  offence 
or  an  act  connected  with  such  an  offence.'  An  extradition  treaty  between  the 
United  States  and  Russia,  1893,  contains  a  similar  clause. 

"By  an  agreement  between  the  governments  of  Russia  and  Prussia  in  1888,  for 
the  basis  of  an  extradition  convention,  attempts  against  the  life  of  the  emperor 
of  Russia  or  the  members  of  his  family  are  to  be  considered  as  extraditable 
offences.  And  further,  'the  fact  that  the  crime  or  offence,  in  respect  whereof 
extradition  is  demanded,  has  been  committed  for  a  political  object,  shall  in 
no  case  be  a  reason  for  refusing  extradition.'  "    2  Lowe's  Life  of  Bismarck,  19. 

On  this  subject,  see  1  Moore's  Extradition,  303-326. 

Freeman  Snow's  Cases  and  Opinions  on  International  Law,  p.  171,  note 
(1893). 

It  is  not  usual  for  nations  to  surrender  their  own  subjects  even  although 


Ch.  4)  JURISDICTION   OF   STATES  427 

In  re  MEUNIER. 
(Queen's  Bench,  1894.     L.  R.,  1894,  2  Q.  B.  415.) 

Application  for  a  writ  of  habeas  corpus  to  bring  up  and  discharge 
a  prisoner  named  Meunier,  who  had  been  committed  by  Sir  John 
Bridge,  the  Chief  Magistrate  at  Bow  Street,  for  surrender  to  the 
French  Government  under  the  Extradition  Acts,  1870  and  1873  (33 
&  34  Vict.  c.  52;   36  &  Z7  Vict.  c.  60.) 

The  prisoner  was  charged  with  wilfully  causing  two  explosions  in 
France,  one  at  the  Cafe  Very  in  Paris,  which  caused  the  death  of  two 
persons,  and  the  other  at  certain  barracks.  It  was  proved  by  the  wit- 
nesses whose  depositions  were  taken  in  France,  as  well  as  by  a  state- 
ment voluntarily  made  by  the  prisoner  himself  to  the  inspector  of 
police  who  arrested  him  in  London,  that  the  prisoner  was  an  an- 
archist.    *     *     * 

Cave;,  J.°-  I  am  of  opinion  that  this  application  for  a  writ  of  habeas 
corpus  must  be  refused.     *     *     * 

The  last  point  taken  is  that,  so  far  as  regards  the  outrage  at  the 

they  may  be  guilty  of  the  crime  with  which  they  are  charged.  To  prevent  dis- 
putes of  this  nature  it  is  customary  to  exclude  such  citizens  from  the  operation 
of  the  treaty,  by  an  express  clause  to  that  effect.  See  Trimble's  Case,  1884,  1 
Moore  on  Extradition,  166. 

''The  exemption  of  citizens  from  extradition  has  been  maintained  on  vari- 
ous grounds.  The  only  one  which  need  seriously  be  noticed  is  that  by  the 
laws  of  most  countries  provision  is  made  for  the  trial  and  punishment  of  their 
citizens  for  offences  committed  abroad,  and  that  a  state  should  not  deliver 
up  one  of  its  citizens  to  be  tried  before  a  foreign  tribunal  when  he  can  be 
punished  at  home  under  its  own  laws.  By  England  and  the  United  Stares 
alone  are  offences,  even  when  committed  by  their  citizens  or  subjects,  treated 
as  entirely  local."    1  Moore's  Extradition,  153. 

"In  negotiating  extradition  treaties  these  two  states  have  therefore  been 
willing  to  stipulate  for  the  rendition  of  their  own  subjects  or  citizens.  Indeed, 
the  United  States  for  a  time  refused  to  enter  into  extradition  treaties  on  any 
other  basis ;  but  since  1852  this  objection  appears  to  have  been  waived,  and  a 
large  number  of  our  treaties  of  extradition,  as  that  with  Mexico,  exempts  eacn 
party  from  the  obligation  to  surrender  its  own  citizens. 

"But  as  this  exemption  from  the  obligation  to  surrender  citizens  was  doubt- 
less inserted  in  these  treaties  in  deference  to  the  opinion  of  other  states,  it 
is  not  probable  that  it  was  intended  as  an  absolute  prohibition  upon  the 
President  of  the  United  States ;  indeed,  the  wording  of  the  clause  would 
seem  to  imply  a  discretion  on  the  part  of  the  contracting  parties. 

"In  1880,  the  Institute  of  International  Law,  after  an  exhaustive  discussion 
01  the  subject  of  extradition,  adopted  a  series  of  resolutions,  the  sixth  of  which 
was  as  follows : 

"  'Between  countries  whose  criminal  legislation  rests  on  similar  foundations, 
and  which  have  coulidence  in  each  other's  judicial  institutions,  the  extradition 
of  their  own  citizens  would  be  a  means  of  securing  the  good  administration  of 
criminal  justice,  because  it  ought  to  be  desirable  that  the  authorities  of  the 
forum  delicti  commissi  should,  if  possible,  be  called  upon  to  try  the  case.' 

"See  on  this  subject :  1  Moore's  Extradition,  152 ;  Dana's  Wheaton,  pp. 
189-191,  notes." 

Freeman  Snow's  Cases  and  Opinions  on  International  Law  (1893)  p.  ICO, 
note. 

82  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


428  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

barracks,  the  offence  charged  is  one  of  a  political  character,  and  there- 
fore the  accused  is  not  liable  to  be  surrendered  under  the  Extradition 
Acts ;  for  it  is  said  that  the  outrage  was  an  attack  on  Government  prop- 
erty, and  was  an  attempt  to  destroy  the  quarters  occupied  by  the  troops 
of  the  French  Government.  It  appears  to  me  that,  in  order  to  con- 
stitute an  ollence  of  a  political  character,  there  must  be  two  or  more 
parties  in  the  State,  each  seeking  to  impose  the  Government  of  their 
own  choice  on  the  other,  and  that,  if  the  offence  is  committed  by 
one  side  or  the  other  in  pursuance  of  that  object,  it  is  a  political  of- 
fence, otherwise  not.  In  the  present  case  there  are  not  two  parties  in 
the  State,  each  seeking  to  impose  the  Government  of  their  own  choice 
on  the  other ;  for  the  party  with  whom  the  accused  is  identified  by  the 
evidence,  and  by  his  own  voluntary  statement,  namely,  the  party  of 
anarchy,  is  the  enemy  of  all  Governments.  Their  efforts  are  directed 
primarily  against  the  general  body  of  citizens.  They  may,  secondarily 
and  incidentally,  commit  offences  against  some  particular  Government ; 
but  anarchist  offences  are  mainly  directed  against  private  citizens.  I 
agree,  as  to  this  question  also,  with  the  view  taken  by  Sir  John  Bridge ; 
and  I  am  of  opinion  that  the  crime  charged  was  not  a  political  of- 
fence within  the  meaning  of  the  Extradition  Act. 

For  these  reasons  I  am  of  opinion  that  the  contention  on  behalf 
of  the  prisoner  fails  on  all  grounds,  and  that  the  application  for  a  writ 
of  habeas  corpus  must  be  refused. 

Collins,  J.    I  am  of  the  same  opinion,  and  on  the  same  grounds. 

Application  refused.®^ 

^8  In  accordance  with  the  doctrine  laid  down  in  the  principal  case,  crimes 
committed  by  anarchists  against  heads  of  states  and  governments,  which 
would  be  regarded  as  political  offenses  if  committed  by  political  parties 
struggling  to  overthrow  the  government,  are  regarded  as  nonpolitical  offenses, 
and  therefore  persons  committing  such  crimes  aire  subject  to  extradition. 


Ch.  5)  TREATIES  429 

CHAPTER  V 
TREATIES 


SECTION  1.— DEFINITION  OF  TREATY  AND  EXTENT  OF 
TREATY-MAKING  POWER 


FOSTER  et  al.  v.  NEILSON. 
(Supreme  Court  of  the  United  States.  1S29.    2  Pet.  253,  7  L.  Ed.  415.) 

Mr.  Chief  Justice  Marshall  '  delivered  the  opinion  of  the  Court. 

This  suit  was  brought  by  the  plaintiffs  in  error  in  the  court  of  the 
United  States,  for  the  eastern  district  of  Louisiana,  to  recover  a  tract 
of  land  lying  in  that  district,  about  thirty  miles  east  of  the  Mississippi, 
and  in  the  possession  of  the  defendant.  The  plaintiffs  claimed  under 
a  grant  for  40,000  arpens  of  land,  made  by  the  Spanish  governor,  on 
the  2d  of  January,  1804,  to  Jayn^e  Joydra,  and  ratified  by  the 
king  of  Spain  on  the  29th  of  May.  1804.  The  petition  and  order  of 
survey  are  dated  in  September,  1803,  and  the  return  of  the  survey  it- 
self was  made  on  the  27th  of  October  in  the  same  year.  The  defend- 
ant excepted  to  the  petition  of  the  plaintiffs,  alleging  that  it  does  not 
show  a  title  on  which  they  can  recover ;  that  the  territory,  within  which 
the  land  claimed  is  situated,  had  been  ceded,  before  the  grant,  to 
France,  and  by  France  to  the  United  States ;  and  that  the  grant  is  void, 
being  made  by  persons  who  had  no  authority  to  make  it.  The  court 
sustained  the  exception,  and  dismissed  the  petition.  The  cause  is 
brought  before  this  Court  by  a  writ  of  error. 

The  case  presents  this  very  intricate,  and  at  one  time  very  interest- 
ing question :  To  whom  did  the  country  between  the  Iberville  and  the 
Perdido  rightfully  belong,  when  the  title  now  asserted  by  the  plaintiffs 
was  acquired? 

This  question  has  been  repeatedly  discussed  with  great  talent  and 
research,  by  the  government  of  the  United  States  and  that  of  Spain. 
The  United  States  have  perseveringly  and  earnestly  insisted,  that  by 
the  treaty  of  St.  Ildefonso,  made  on  the  1st  of  October  in  the  year 
1800,  Spain  ceded  the  disputed  territory  as  part  of  Louisiana  to 
France;  and  that  France,  by  the  treaty  of  Paris,  signed  on  the  30th 
of  April,  1803,  and  ratified  on  the  21st  of  October  in  the  same  year 
(8  Stat.  200),  ceded  it  to  the  United  States.  Spain  has  with  equal 
perseverance  and  earnestness,  maintained,  that  her  cession  to  France 
comprehended  that  territory  only  which  was  at  that  time  denominated 

1  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


430  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

Louisiana,  consisting  of  the  island  of  New  Orleans,  and  the  country 
she  received  from  France  west  of  the  Mississippi.     *     *     * 

In  a  controversy  between  two  nations  concerning  national  boundary, 
it  is  scarcely  possible  that  the  courts  of  either  should  refuse  to  abide 
by  the  measures  adopted  by  its  own  government.  There  being  no  com- 
mon tribunal  to  decide  between  them,  each  determines  for  itself  on  its 
own  rights,  and  if  they  cannot  adjust  their  differences  peaceably,  the 
right  remains  with  the  strongest.  The  judiciary  is  not  that  depart- 
ment of  the  government,  to  which  the  assertion  of  its  interests  against 
foreign  powers  is  confided;  and  its  duty  commonly  is  to  decide  upon 
individual  rights,  according  to  those  principles  which  the  political 
departments  of  the  nation  have  established.  If  the  course  of  the  na- 
tion has  been  a  plain  one,  its  courts  would  hesitate  to  pronounce  it 
erroneous. 

We  think  then,  however  individual  judges  might  construe  the  treaty 
of  St.  Ildefonso,  it  is  the  province  of  the  court  to  conform  its  de- 
cisions to  the  will  of  the  legislature,  if  that  will  has  been  clearly  ex- 
pressed. 

The  convulsed  state  of  European  Spain  affected  her  influence  over 
her  colonies;  and  a  degree  of  disorder  prevailed  in  the  Floridas,  at 
which  the  United  States  could  not  look  with  indifference.  In  October, 
1810,  the  president  issued  his  proclamation,  directing  the  governor  of 
the  Orleans  territory  to  take  possession  of  the  country  as  far  east  as 
the  Perdido,  and  to  hold  it  for  the  United  States.  This  measure  was 
avowedly  intended  as  an  assertion  of  the  title  of  the  United  States ; 
but  as  an  assertion,  which  was  rendered  necessary  in  order  to  avoid 
evils  which  might  contravene  the  wishes  of  both  parties,  and  which 
would  still  leave  the  territory  "a  subject  of  fair  and  friendly  negotia- 
tion and  adjustment." 

In  April,  1812,  congress  passed  "an  act  to  enlarge  the  limits  of  the 
state  of  Louisiana."  This  act  describes  lines  which  comprehend  the 
land  in  controversy,  and  declares  that  the  country  included  within 
them  shall  become  and  form  a  part  of  tlie  state  of  Louisiana. 

In  May  of  the  same  year,^  another  act  was  passed,  annexing  the 
residue  of  the  country  \vest  of  the  Perdido  to  the  Mississippi  territory. 

And  in  February,  1813,  the  president  was  authorized  "to  occupy 
and  hold  all  that  tract  of  country  called  West  Florida,  which  lies  west 
of  the  river  Perdido,  not  now  in  possession  of  the  United  States." 

On  the  3d  of  March,  1817,  congress  erected  that  part  of  Florida 
which  had  been  annexed  to  the  Mississippi  territory,  into  a  separate 
territory,  called  Alabama. 

The  powers  of  government  were  extended  to,  and  exercised  in  those 
parts  of  West  Florida  which  composed  a  part  of  Louisiana  and  Mis- 
sissippi, respectively;  and  a  separate  government  was  erected  in  Ala- 
bama.   3  Stat.  371. 

In  March,  1819,  congress  passed  "an  act  to  enable  the  people  of 
Alabama  to  form  a  constitution  and  state  government."    And  in  De- 


Ch.  5)  TREATIES  4^1 

cember,  1819,  she  was  admitted  into  the  Union,  and  declared  one  of  the 
United  States  of  America.  The  treaty  of  amity,  settlement,  and  limits, 
between  the  United  States  and  Spain,  was  signed  at  Washington,  on 
the  22d  day  of  February,  1819,  but  was  not  ratified  by  Spain  till  the 
24th  day  of  October,  1820;  nor  by  the  United  States  until  the  22d 
day  of  February,  1821.  So  that  Alabama  was  admitted  into  the  Un- 
ion as  an  independent  state,  in  virtue  of  the  title  acquired  by  the  United 
States  to  her  territory,  under  the  treaty  of  April,  1803. 

After  these  acts  of  sovereign  power  over  the  territory  in  dispute, 
asserting  the  American  construction  of  the  treaty  by  which  the  govern- 
ment claims  it  to  maintain  the  opposite  construction  in  its  own  courts 
would  certainly  be  an  anomaly  in  the  history  and  practice  of  nations. 
If  those  departments  which  are  intrusted  with  the  foreign  intercourse 
of  the  nation,  which  assert  and  maintain  its  interests  against  foreign 
powers,  have  unequivocally  asserted  its  rights  of  dominion  over  a 
country  of  which  it  is  in  possession,  and  which  it  claims  under  a  treaty ; 
if  the  legislature  has  acted  on  the  construction  thus  asserted,  it  is  not 
in  its  own  courts  that  this  construction  is  to  be  denied.  A  question 
like  this  respecting  the  boundaries  of  nations,  is,  as  has  been  truly  said, 
more  a  political  than  a  legal  question ;  and  in  its  discussion,  the  courts 
of  every  country  must  respect  the  pronounced  will  of  the  legislature. 
Had  this  suit  been  instituted  immediately  after  the  passage  of  the  act 
for  extending  the  bounds  of  Louisiana,  could  the  Spanish  construction 
of  the  treaty  of  St.  Ildefonso  have  been  maintained?  Could  the 
plaintiff  have  insisted  that  the  land  did  not  lie  in  Louisiana,  but  in 
West  Florida ;  that  the  occupation  of  the  country  by  the  United  States 
was  wrongful;  and  that  his  title  under  a  Spanish  grant  must  prevail, 
because  the  acts  of  congress  on  the  subject  were  founded  on  a  mis- 
construction of  the  treaty?  If  it  be  said,  that  this  statement  does  not 
present  the  question  fairly,  because  a  plaintiff  admits  the  authority  of 
the  Court,  let  the  parties  be  changed.  If  the  Spanish  grantee  had  ob- 
tained possession  so  as  to  be  the  defendant,  would  a  Court  of  the 
United  States  maintain  his  title  under  a  Spanish  grant,  made  subse- 
quent to  the  acquisition  of  Louisiana,  singly  on  the  principle  that  the 
Spanish  construction  of  the  treaty  of  St.  Ildefonso  was  right,  and  the 
American  construction  wrong?  Such  a  decision  would,  we  think, 
have  subverted  those  principles  which  govern  the  relations  between 
the  legislalive  and  judicial  departments,  and  mark  the  limits  of 
each.     *     *     * 

A  treaty  is  in  its  nature,  a  contract  between  two  nations,  not  a  legis- 
lative act.  It  does  not  generally  effect,  of  itself,  the  object  t;o  be  ac- 
complished, especially  so  far  as  its  operation  is  infra-territorial ;  but 
is  carried  into  execution  by  the  sovereign  power  of  the  respective  par- 
ties to  the  instrument. 

In  the  United  States  a  different  principle  is  established.  Our  con- 
stitution declares  a  treaty  to  be  the  law  of  the  land.     Const,  art.  6, 


432  RIGHTS  AND  DUTIES  OF  NATIONS   l.N    TIME  OF  PEACH       (Part  1 

cl.  2.  It  is,  consequently,  to  be  regarded  in  courts  of  justice  as  equiva- 
lent to  an  act  of  the  legislature,  whenever  it  operates  of  itself  without 
the  aid  of  any  legislative  provision.  But  when  the  terms  of  the  stipula- 
tion import  a  contract,  when  either  of  the  parties  engages  to  perform 
a  particular  act,  the  treaty  addresses  itself  to  the  political,  not  the  judi- 
cial department;  and  the  legislature  must  execute  the  contract  be- 
fore it  can  become  a  rule  for  the  Court.     *     *     * 

We  are  of  opinion  then,  that  the  court  committed  no  error  in  dismiss- 
ing the  petition  of  the  plaintiff,  and  that  the  judgment  ought  to  be  af- 
firmed with  costs.' 


2  See  also  U.  S.  v.  Arredondo,  6  Pet.  691,  8  L.  Ed.  547  (1832)  ;  Gracia  v. 
Lee,  12  Pet.  511,  9  L.  Ed.  1176  (1S3S). 

"Whether  or  not  Greer  county  is  part  of  the  state  of  Texas  depends  upon 
where  the  northern  boundary  line  of  our  state,  dividing  it  from  Indian  Terri- 
tory, should  be  located.  This  is  a  question  to  be  settled  by  the  political  and 
not  the  judicial  department  of  our  state  government.  It  is  judicially  known 
to  us  that  the  political  authority  has  always  claimed  the  territory  composing 
Greer  county  as  part  of  the  domain  of  our  state,  and  has  exercised  acts  of 
control  over  it;  such  as  organizing  it  into  a  county  and  attaching  it  to  an- 
other of  our  counties  for  judicial  purposes,  etc.  We  cannot  undertake  to 
iitoit  the  jurisdiction  thus  recognized  and  asserted  by  the  political  depart- 
ment, and  until  that  department  ceases  to  exercise  such  authority  we  must 
treat  this  county  as  subject  to  the  jurisdiction  of  the  state  of  Texas.  Bedel 
V.  Loomis,  11  N.  H.  15  (1840)  ;  State  v.  Dunweli,  3  R.  I.  127  (1855)  ;  Guadalupe 
County  V.  Wilson  County,  5S  Tex.  228  (1882);  Foster  v.  Neilson,  2  Pet.  254 
[7  L.  Ed.  415  (1820)];  United  States  v.  Arredondo,  6  Pet.  691  [8  L.  Ed. 
547  (1832)]."    Willie,  C.  J.,  in  Harrold  v.  Arrington,  64  Tex.  233  (1885). 

In  Re  Cooper,  143  U.  S.  472,  12  Sup.  Ct.  453,  36  L.  Ed.  232  (1892),  the  court 
held,  inter  alia,  that  a  treaty  is  the  law  of  the  land  where  it  prescribes  a  rule 
for  determining  rights  of  citizens  or  subjects ;  that  courts  may  not  determine 
whether  government's  action  is  proper  in  pending  negotiations;  that  the 
Supreme  Court  has  no  power  to  determine  political  questions  and  that  courts 
are  bound  by  the  government's  act  asserting  dominion  over  any  part  of  the 
(Behring)  Sea. 

so  in  The  James  G.  Swan  (D,  C.)  50  Fed.  Ill  (1892),  the  court  held  that 
the  President  and  Congress  are  vested  with  all  the  responsibility  and  powers 
of  the  government  for  determination  of  questions  as  to  the  maintenance  and 
extension  of  our  national  dominion,  and  inasmuch  as  they  had  assumed  juris- 
diction and  sovereignty  over  the  waters  of  Behring  Sea  outside  of  the  three- 
mile  limit,  the  people  and  the  courts  are  bound  by  such  action. 

In  Wilson  v.  Shaw,  204  U.  S.  24,  32,  27  Sup.  Ct.  233,  51  L.  Ed.  351  (1907),  the 
title  of  the  United  States  to  the  Panama  Canal  Zone  was  involved.  Mr. 
Justice  Brewer,  speaking  for  the  court,  said  on  this  subject : 

"He  contends  that  whatever  title  the  government  has  was  not  acquired  as 
provided  in  the  act  of  Jime  28,  1902,  by  treaty  with  the  Republic  of  Colombia. 
A  short  but  sufficient  answer  is  that  subsequent  ratification  is  equivalent  to 
original  authority.  The  title  to  what  may  be  called  the  Isthmian  or  Canal 
Zone,  which  at  the  date  of  the  act  was  in  the  Republic  of  Colombia,  passed  by 
an  act  of  secession  to  the  newly  formed  Republic  of  Panama.  The  latter  was 
recognized  as  a  nation  by  the  President.  A  treaty  with  it,  ceding  the  Canal 
Zone,  was  duly  ratified.  33  Stat.  2234.  Congress  has  passed  several  acts 
based  upon  the  title  of  the  United  States,  among  them  one  to  provide  a  tem- 
porary government,  33  Stat.  429 ;  another,  fixing  the  status  of  merchandise 
coming  into  the  United  States  from  the  Canal  Zone,  33  Stat.  843  [Comp.  St.  ^ 
5323]  ;  another,  prescribing  the  type  of  canal.  34  Stat.  611.  These  show  a 
full  ratification  by  Congress  of  what  has  been  done  by  the  Executive.  Their 
concurrent  action  is  conclusive  upon  the  courts.  We  have  no  supervising  con- 
trol over  the  political  branch  of  the  government  in  its  action  within  the  limits 


Ch.  5)  TREATIES  433 

PEOPLE  ex  rel.  ATTORNEY  GENERAL  v.  GERKE  &  CLARK. 
(Supreme  Court  of  California,  1855.    5  Cal.  381.) 

Appeal  from  the  District  Court  of  the  Fourth.  Judicial  District,  San 
Francisco  County. 

On  the  23d  of  August,  1853,  one  Auguste  Deck,  a  citizen  of  Prussia, 
died  intestate,  in  the  city  of  San  Francisco,  leaving  undisposed  of,  a 
large  amount  of  real  estate. 

On  the  14th  of  September  following,  letters  of  administration  were 
granted  by  the  probate  court  to  the  defendant,  Gerke. 

Clark  afterwards  purchased  from  the  absent  heirs  a  large  portion 
of  the  property. 

An  information  was  filed  by  the  Attorney  General  in  the  court  be- 
low, citing  the  defendants  to  show  cause  why  Deck's  estate  should  not 
escheat  to  the  state  of  California.  The  court  below  entered  judgment, 
pro  forma,  in  favor  of  the  people.    Defendants  appealed. 

Heydenfeldt,  J.  By  a  convention  between  the  United  States  and 
the  kingdom  of  Prussia,  made  in  the  year  1828  (8  Stat.  378\.  the  four- 
teenth article  provides :  "And  where,  on  the  death  of  any  person  hold- 
ing real  estate,  within  the  territory  of  the  one  party,  such  real  estate 
would,  by  the  laws  of  the  land,  descend  on  a  citizen  or  subject  of 
the  other,  were  he  not  disqualified  by  alienage,  such  citizen  or  sub- 
ject shall  be  allowed  a  reasonable  time  to  sell  the  same,  and  to  with- 
draw the  proceeds  without  molestation." 

The  Attorney  General,  in  support  of  the  information  filed  in  this 
case,  denies  the  power  of  the  federal  government  to  make  such  a  pro- 
vision by  treaty,  and  the  determination  of  this  case  depends  upon  the 
solution  of  that  question.  Cases  have  frequently  arisen  where  aliens 
have  claimed  to  inherit  by  virtue  of, treaty  provisions  analogous  to  the 
one  under  consideration,  and  in  all  of  them,  so  far  as  I  have  examined, 
the  stipulations  were  enforced  in  favor  of  the  foreign  claimants.  See 
Chirac  v.  Chirac,  2  Wheat.  259,  4  L.  Ed.  234;  Orr  v.  Hodgson,  4 
Wheat.  453,  4  L.  Ed.  613;  Society  for  The  Propagation  of  the  Gos- 
pel V.  New  Haven,  8  Wheat.  464,  5  L.  Ed.  662 ;  Hughes  v.  Edwards, 
9  Wheat.  489,  6  L.  Ed.  142 ;  Carneal  v.  Bank,  10  Wheat.  181,  6  L.  Ed. 
297. 

But  in  none  of  these  cases  was  the  question  raised  as  to  the  power 
of  the  federal  government  to  make  the  treaty.  It  has  been  the  practice 
of  the  government  from  an  early  period  after  the  ratification  of  the 
Constitution,  and  its  power  is  now,  I  believe,  for  the  first  time  dis- 
puted. 

of  the  Con.stitution.  Joueg  v.  United  States,  137  U.  S.  202  [11  Sup.  Ct.  SO,  34 
L.  Ed.  691  (1S90)],  and  ca^es  cited  in  the  opinion;  In  re  Cooper,  143  U.  §.  472, 
499,  503  [12  Sup.  Ct.  453,  3G  L.  Ed.  232  (1892)]." 

Scott  Int. Law — 28 


434  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OP   PEACE       (Part  1 

The  language  which  grants  the  power  to  make  treaties,  contains  no 
word  of  Hmitation ;  it  does  not  follow  that  the  power  is  unlimited. 
It  must  be  subject  to  the  general  rule,  that  an  instrument  is  to  be  con- 
strued so  as  to  reconcile  and  give  meaning  and  effect  to  all  its  parts. 
If  it  were  otherwise,  the  most  important  limitation  upon  the  powers 
of  the  federal  government  would  be  ineffectual,  and  the  reserved  rights 
of  the  States  would  be  subverted.  This  principle  of  construction  as 
applied,  not  only  in  reference  to  the  Constitution  of  the  United  States, 
but  particularly  in  the  relation  of  all  the  rest  of  it,  to  the  treaty  mak- 
ing grant,  was  recognized  both  by  Mr.  Jefferson  and  John  Adams,  two 
leaders  of  opposite  schools  of  construction.  See  Jefferson's  Works, 
vol.  Ill,  p.  135 ;  and  vol.  VI,  p.  560. 

It  may,  therefore,  be  assumed  that,  aside  from  the  limitations  and 
prohibitions  of  the  Constitution  upon  the  powers  of  the  federal  govern- 
ment, "the  powder  of  treaty  was  given,  without  restraining  it  to  particu- 
lar objects,  in  as  plenipotentiary  a  form  as  held  by  any  sovereign  in  any 
other  society."  This  principle,  as  broadly  as  I  have  deemed  proper  to 
lay  it  down,  results  from  the  form  and  necessities  of  our  government, 
as  elicited  by  a  general  view  of  the  federal  compact.  Before  the  com- 
pact, the  states  had  the  power  of  treaty  making  as  potentially  as  any 
power  on  eartl^;  it  extended  to  every  subject  whatever.  By  the 
compact,  they  expressly  granted  it  to  the  federal  government  in  general 
terms,  and  prohibited  it  to  themselves. 

The  general  government  must,  therefore,  hold  it  as  fully  as  the 
states  held  who  granted  it,  with  the  exceptions  which  necessarily  flow 
from  a  proper  construction  of  the  other  powers  granted,  and  those 
prohibited  by  the  Constitution.  The  only  questions,  then,  which  can 
arise  in  the  consideration  of  the  validity  of  a  treaty,  are :  First.  Is  it 
a  proper  subject  of  treaty  according  to  international  law  or  the  usage 
and  practice  of  civiHzed  nations?^  Second.  Is  it  prohibited  by  any  of 
the  limitations  in  the  Constitution? 

Taking  for  illustration  the  present  subject  of  treaty,  no  one  will  deny 
that,  to  the  commercial  states  of  the  Union,  and  indeed  to  the  citizens 
of  any  state  who  are  engaged  in  foreign  commerce,  a  stipulation  to 
remove  the  disability  of  aliens  to  hold  property  is  of  paramount  im- 
portance, or,  at  any  rate,  it  may  be  so  considered  by  the  states,  and 
demanded  as  a  part  of  their  commercial  polity. 

Now,  as  by  the  compact  the  states  are  absolutely  prohibited  from 
making  treaties,  if  the  general  government  has  not  the  power,  then  we 
must  admit  a  lameness  and  incompleteness  in  our  whole  system,  which 
renders  us  inferior  to  any  other  enlightened  nation,  in  the  power  and 
ability  to  advance  the  prosperity  of  the  people  we  govern. 

Mr.  Calhoun,  in  his  discourse  on  the  Constitution  and  government  of 
the  United  States,  has  given  to  this  power  a  full  consideration,  and 
I  cannot  doubt  that  the  view  which  I  have  taken,  is  sustained  by  his 

Scott  Int.Law 


Ch,  5)  TREATIES  435 

reasoning.  (1)  According  to  his  opinion,  the  following  may  be  classed 
as  the  limitations  on  the  treaty  making  power:  First.  It  is  limited 
strictly  to  questions  inter  alios,  "all  such  clearly  appertain  to  it." 
Second.  "By  all  the  provisions  of  the  Constitution  which  inhibit  cer- 
tain acts  from  being  done  by  the  Government  or  any  of  its  depart- 
ments." Third:  "By  such  provisions  of  the  Constitution  as  direct 
certain  acts  to  be  done  in  a  particular  way,  and  which  prohibit  the 
contrary."  Fourth.  "It  can  enter  into  no  stipulation  calculated  to 
change  the  character  of  the  government,  or  to  do  that  which  can  only 
be  done  by  the  Constitution  making  power ;  or  which  is  inconsistent 
with  the  nature  and  structure  of  the  government  or  the  objects  for 
which  it  was  formed." 

Having  stated  these  as  the  only  limitations,  the  author  adds :  "With- 
in these  limits  all  questions  which  may  arise  between  us  and  other 
powers,  be  the  subject  matter  what  it  may,  fall  within  the  limits  of 
the  treaty  making  power,  and  may  be  adjusted  by  it." 

One  of  the  arguments  at  the  bar  against  the  extent  of  this  power 
of  treaty  is,  that  it  permits  the  federal  government  to  control  the  in- 
ternal policy  of  the  states,  and,  in  the  present  case,  to  alter  materially 
the  statutes  of  distribution. 

If  this  was  so  to  the  full  extent  claimed,  it  might  be  a  sufficient 
answer  to  say,  that  it  is  one  of  the  results  of  the  compact,  and,  if  the 
grant  be  considered  too  improvident  for  the  safety  of  the  states,  the 
evil  can  be  remedied  by  the  constitution  making  power.  I  think,  how- 
ever, that  no  such  consequence  follows  as  is  insisted.  The  statutes 
of  distribution  are  not  altered  or  affected.  Alienage  is  the  subject  of 
the  treaty.  Its  disability  results  from  political  reasons  which  arose  at 
an  early  period  of  the  history  of  civilization,  and  which  the  enlightened 
advancement  of  modern  times,  and  the  changes  in  the  political  and 
social  condition  of  nations,  have  rendered  without  force  or  conse- 
quence. The  disability  to  succeed  to  property  is  alone  removed,  the 
character  of  the  person  is  made  politically  to  undergo  a  change,  and 
then  the  statute  of  distribution  is  left  to  its  full  effect,  unaltered  and 
unimpaired  in  word  or  sense.  If  there  is  one  object  more  than  an- 
other which  belongs  to  our  political  relations,  and  which  ought  to  be 
the  subject  of  treaty  regulations,  it  is  the  extension  of  this  comity 
which  is  so  highly  favored  by  the  liberal  spirit  of  the  age,  and  so 
conducive  in  its  tendency  to  the  peace  and  amity  of  nations. 

Even  if  the  effect  of  this  power  was  to  abrogate  to  some  extent  the 
legislation  of  the  states,  we  have  authority  for  admitting  it,  if  it  does 
not  exceed  the  limitations  which  we  have  cited  from  the  work  of  Mr. 
Calhoun,  and  laid  down  as  the  rule  to  which  we  yield  our  assent. 

During  the  War  of  the  Revolution,  the  states  had  passed  acts  of 
confiscation,  acts  against  the  collection  of  debts  due  to  the  subjects 
of  Great  Britain,  and  acts  for  the  punishment  of  treason.  By  the  treaty 
of  peace,  the  effects  of  these  various  acts  were  provided  against,  and 


436  RIGHTS  AND   DUTIES  OF   NATIONS   IN  TIME  OF   PEACE       (Part  1 

as  late  as  1792,  long  after  the  ratification  of  the  Constitution,  Mr. 
Jefferson,  in  answer  to  the  complaint  of  the  British  Minister,  Mr. 
Hammond,  distinctly  recognized  the  doctrine,  that  treaties  are  the 
supreme  law  of  the  land,  and  that  state  legislation  must  yield  to  them ; 
and  he  therein  cites  the  acts  of  state  Legislatures  and  the  decisions 
of  state  judges,  who  all  conform  to  the  same  opinion.  See  vol.  Ill, 
Jefferson's  Works,  365. 

I  can  see  no  danger  which  can  result  from  yielding  to  the  federal 
government  the  full  extent  of  powers  which  it  may  claim  from  the 
plain  language,  intent,  and  meaning  of  the  grant  under  consideration. 
Upon  some  subjects,  the  policy  of  a  state  government,  as  shown  by  her 
legislation,  is  dependent  upon  the  policy  of  foreign  governments,  and 
would  be  readily  changed  upon  the  principle  of  mutual  concession. 
This  can  only  be  effected  by  the  action  of  that  branch  of  the  state 
sovereignty  known  as  the  general  government,  and  when  effected,  the 
state  policy  must  give  way  to  that  adopted  by  the  governmental  agent 
of  her  foreign  relations. 

It  results  from  these  views,  that  the  treaty  of  1828,  with  Prussia, 
is  valid,  and  that  aliens,  subjects  of  Prussia,  are  protected  by  its  pro- 
visions. 

The  judgment  is  reversed,  and  the  cause  remanded. 

Bryan,  J.  (concurring).  I  agree  with  my  Associate,  that  the  doc- 
trine has  been  settled  in  the  United  States  courts,  in  cases  relating  to 
analogous  treaties  to  the  one  in  question,  that  the  courts  of  the  country 
should  extend  to  aliens  the  full  protection  which  the  treaty  seeks  to 
give  them,  in  the  acquisition  or  distribution  of  property. 

In  Chirac  v.  Chirac,  2  Wheat.  259,  4  L.  Ed.  234,  the  treaty  with 
France  of  1778  (8  Stat.  12)  was  passed  upon,  and  it  was  decided  by 
the  United  States  court,  that  it  secured  to  the  citizens  and  subjects  of 
either  power,  the  privilege  of  holding  lands  in  the  territory  of  the 
other.  This  was  reaffirmed  in  Carneal  v.  Banks,  10  Wheat.  189,  6  L. 
Ed.  297.  A  similar  provision  in  the  treaty  with  Great  Britain  of  1794 
(8  Stat.  116),  was  also  sanctioned  by  the  Supreme  Court  of  the  United 
States,  in  Hughes  v.  Edwards,  9  Wheat.  489,  6  L.  Ed.  142.  So  far  as 
the  authority  of  the  federal  courts  is  concerned,  they  appear  to  have 
uniformly  administered  the  law  upon  the  meaning  given  by  construction 
to  the  language  of  the  treaty,  seeming  never  to  have,  in  any  respect, 
doubted  the  power  of  the  general  government  to  provide  by  treaty  with 
a  foreign  power  for  the  mutual  protection  of  the  property  belonging 
to  the  citizens  or  subjects  of  each  in  the  territory  of  the  other.  The 
treaty  making  power  of  the  federal  government  must,  from  necessi- 
ty, be  sufficiently  ample  so  as  to  cover  all  of  the  usual  subjects  of  trea- 
ties between  different  powers.  If  we  were  to  deny  to  the  treaty  making 
power  of  our  Government  the  exercise  of  jurisdiction  over  the  property 
of  deceased  aliens,  upon  the  ground  of  interference  with  the  course  of 
descents,  or  the  laws  of  distribution  of  a  state  where  property  may 


Ch.  5)  TREATIES  4.37 

exist ;  by  parity  of  reasoning  we  should  not  make  commercial  treaties 
with  foreign  nations;  because,  it  might  be  said,  some  of  their  pro- 
visions would  injure  the  business  of  a  portion  of  the  citizens  of  one  of 
the  states  of  the  Union. 

If  the  treaty  making  power  which  resides  in  the  federal  government 
is  not  sufficient  to  permit  it  to  arrange  with  a  foreign  nation  the  dis- 
tribution of  an  alien's  property,  then  that  power  resides  nowhere, 
(since  it  is  denied  to  the  states,)  and  we  must  confess  our  system  of 
government  so  weak  and  faulty,  as  to  be  incapable  of  extending  to 
its  citizens  in  foreign  lands  that  protection  which  is  most  common 
amongst  a  majority  of  modern  civilized  nations. 

I  agree  with  my  Associate  in  the  conclusion,  that  the  treaty  making 
power  of  the  federal  government  was  sufficient  to  enable  it  to  insert 
the  article  in  the  treaty  with  Prussia,  which  has  before  been  quoted; 
and  that  the  alien  heirs  of  Deck  are  protected  by  its  provisions,  and 
are  entitled  to  withdrawal  of  the  proceeds  of  the  estate. 

I  therefore  concur  in  the  reversal  of  the  judgment. 

Murray,  C.  J.  I  neither  concur  nor  dissent  from  the  opinion  of  the 
court,  not  having  heard  the  argument  or  examined  the  questions 
sufficiently  to  arrive  at  any  satisfactory  conclusion.^ 

3  For  the  binding  effect  of  a  modus  vivendi  made  by  the  government  of  the 
United  States  without  the  advice  and  consent  of  the  Senate,  see  Watts  v. 
United  States,  1  Wash.  T.  2S8  (1870). 

In  Geofroy  v.  Riggs,  133  U.  S.  258,  26&-267,  10  Sup.  Ct.  295,  33  L.  Ed.  642 
(1890),  post,  p.  446,  Mr.  Justice  Field  said,  on  behalf  of  the  Supreme  Court: 

"That  the  treaty  power  of  the  United  States  extends  to  all  proper  subjects 
of  negotiation  between  our  government  and  the  governments  of  other  nations 
is  clear.  It  is  also  clear  that  the  protection  which  should  be  afforded  to  the 
citizens  of  one  country  owning  property  in  another,  and  the  manner  in  which 
that  property  may  be  transferred,  devised  or  inherited,  are  fitting  subjects  for 
such  negotiation  and  of  regulation  by  mutual  stipulations  between  the  two 
countries.  As  commercial  intercourse  increases  between  different  countries 
the  residence  of  citizens  of  one  country  within  the  territory  of  the  other 
naturally  follows,  and  the  removal  of  their  disability  from  alienage  to  hold, 
transfer  and  inherit  property  in  such  cases  tends  to  promote  amicable  rela- 
tions. Such  removal  has  been  within  the  present  century  the  frequent  sub- 
ject of  treaty  arrangement.  The  treaty  power,  as  expressed  in  the  Constitu- 
tion, is  in  terms  unlimited  except  by  those  restraints  which  are  found  in 
that  instrument  against  the  action  of  the  government  or  of  its  departments, 
and  those  arising  from  the  nature  of  the  government  itself  and  of  that  of 
the  states.  It  would  not  be  contended  that  it  extends  so  far  as  to  authorize 
what  the  Constitution  forbids,  or  a  change  in  the  character  of  the  government 
or  in  that  of  one  of  the  States,  or  a  cession  of  any  portion  of  the  territory  of 
the  latter,  without  its  consent.  Fort  Leavenworth  Railroad  Co.  v.  Lowe,  114 
U.  S.  525,  541,  5  Sup.  Ct.  995,  29  L.  Ed.  264.  But,  with  these  exceptions,  it 
is  not  perceived  that  there  is  any  limit  to  the  questions  which  can  be  adjusted 
touching  any  matter  which  is  properly  the  subject  of  negotiation  with  a  for- 
eign country.  Ware  v.  Hylton,  3  Dall.  199,  1  L.  Ed.  568 ;  Chirac  v.  Chirac.  2 
Wheat.  259,  4  L.  Ed.  234;  Haucn^tein  v.  Lynhara,  100  U.  S.  4S-3,  25  L.  Ed.  628: 
8  Opinions  Attys.  Gen.  417;    People  v.  Gerke,  5  Cal.  381." 


438  RIGHTS  AND   DUTIES  OF  NATIONS   IN   TIME   OF  PEACE       (Part  1 


SECTION  2.— TIME  OF  GOING  INTO  EFFECT 


THE  ELIZA  ANN. 

(High  Court  of  Admiralty,  1813.     1  Dod.  244.) 

These  were  three  cases  of  American  ships,  laden  with  hemp,  iron, 
and  other  articles,  and  seized  in  Hanoe  Bay.  on  the  11th  of  August, 
1812,  by  his  Majesty's  ship  Vigo,  which  was  then  lying  there,  with  oth- 
er British  ships  of  war.  A  claim  was  given,  under  the  direction  of 
the  Swedish  minister,  for  the  ships  and  cargoes,  "as  taken  within  one 
mile  of  the  main  land  of  Sweden,  and  within  the  territory  of  his 
Majesty  the  King  of  Sweden,  contrary  to  and  in  violation  of  the  law 
of  nations,  and  the  territory  and  jurisdiction  of  his  said  Majesty." 

Sir  W.  Scott.*  These  vessels  came  into  Hanoe  Bay,  for  the  pur- 
pose of  taking  the  benefit  of  British  convoy,  and  were  seized  in  con- 
sequence of  the  order  for  the  detention  of  American  property.  This 
order  has  been  since  followed  up  by  a  declaration  of  war;  the  ships, 
therefore,  would  be  liable  to  condemnation,  unless  it  can  be  shown 
that  they  are  entitled  to  some  special  protection.     *     *     * 

A  claim,  however,  has  been  given  by  the  Swedish  minister.  Now,  in 
order  to  support  and  give  effect  to  this  claim,  two  things  are  necessary 
to  be  established.  First,  it  is  requisite  that  Sweden  should  appear  to 
have  been  in  a  state  of  perfect  neutrality  at  the  time  when  the  seizure 
was  made.  Secondly,  it  must  be  shown  that  the  act  of  violence  was 
committed  within  the  limits  of  Swedish  territory.  For,  if  the  scene  of 
hostility  did  not  lie  within  the  territories  of  the  neutral  state,  then  has 
there  been  no  violation  of  its  neutral  rights,  and  consequently  there 
exists  no  ground  of  complaint,  and  no  foundation  for  the  claim. 

The  first  question  then  is,  how  far,  in  August,  1812,  Sweden  was  to 
be  considered  as  a  neutral  country.     *     *     * 

This  was  the  state  of  things  originally ;  British  ships  were  excluded 
from  the  ports  of  Sweden,  and  the  island  of  Hanoe  was  occupied  by 
British  forces. 

After  this,  a  declaration  of  war  was  issued  by  the  government  of 
Sweden.     *     *     * 

This  war  has,  however,  been  happily  terminated  by  a  treaty  of  peace, 
which  was  signed  by  the  plenipotentiaries  of  the  two  countries,  on  the 
18th  of  July,  ratified  by  the  Prince  Regent  of  Great  Britain  on  the 
4th  of  August,  and  by  the  King  of  Sweden  on  the  17th  of  the  same 
month.  From  the  result  of  these  dates  it  has  been  contended,  that  the 
war  had  ceased,  and  that  friendship  had  been  re-established  before  the 

*  Part  of  the  opinion  is  omitted. 


Ch.  5)  TREATIES  439 

time  when  these  vessels  were  seized.  The  question,  therefore,  comes  to 
this,  whether  a  ratification  is  or  is  not  necessary  to  give  effect  and 
vaHdity  to  a  treaty  signed  by  plenipotentiaries.  Upon  abstract  princi- 
ples we  know  that,  either  in  public  or  private  transactions,  the  acts 
of  those  who  are  vested  with  a  plenary  power  are  binding  upon  the 
principal.  '  But,  as  this  rule  was  in  many  cases  found  to  be  attended 
with  inconvenience,  the  later  usage  of  states  has  been  to  require  a  rati- 
fication, although  the  treaty  may  have  been  signed  by  plenipotentiaries. 
According  to  the  practice  now  prevailing,  a  subsequent  ratification  is 
essentially  necessary;  and  a  strong  confirmation  of  the  truth  of  this 
position  is  that  there  is  hardly  a  modern  treaty  in  which  it  is  not  ex- 
pressly so  stipulated;  and,  therefore,  it  is  now  to  be  presumed,  that 
the  powers  of  plenipotentiaries  are  limited  by  the  condition  of  a 
subsequent  ratification.  The  ratification  may  be  a  form,  but  it  is  an 
essential  form ;  ior  the  instrument,  in  point  of  legal  efficacy,  is  im- 
perfect without  it.  I  ngedjiot  add,  that  axatifiication  bxjme- power  alone 
is  insufficient ;   that^  if  necessary_at  all^J^mu£^bejtimt^^  that  the 

treaty^  mcoiHplete  tillJtJias  beenTeciprocally  ratified. 

It  is  said7  however,  that  theTreatyTwTTerTratifiedTl'efers  back  to  the 
time  of  its  signature  by  the  plenipotentiaries,  and  that  it  does  so  in  this 
case  more  especially  on  account  of  the  terms  in  which  it  is  drawn.  The 
words  in  one  of  the  articles  of  the  treaty,  "Des  ce  moment  tout  sujet 
de  m^sintelligence,  qui  ait  pu  subsister  sera  regarde  comme  entierement 
cessant  et  detruit,"  have  been  pointed  out,  and  from  these  it  has  been 
contended,  that  all  hostilities  were  to  cease  the  moment  the  treaty 
was  signed.  But  I  take  that  not  to  be  the  case ;  the  positive  and  enact- 
ing part  of  the  articles  is,  that  there  shall  be  a  firm  and  inviolable  peace 
between  the  two  countries;  the  other  part  is  descriptive  only  of  the 
pacific  intention  of  the  parties,  and  of  their  agreement  to  bury  in 
oblivion  all  the  causes  of  the  war.  It  does  not  stand  in  the  same  sub- 
stantive way  as  the  former  part  of  the  article,  and  must  be  considered 
as  mere  explanatory  description.  The  nature  of  a  treaty  of  peace  is 
well  explained  by  Vattel  (book  iv,  c.  2),  who  lays  it  down  that  "a  treaty 
of  peace  can  be  no  more  than  an  agreement.  Were  the  rules  (he  says) 
of  an  exact  and  precise  justice  to  be  observed  in  it,  each  punctually  re- 
ceiving all  that  belongs  to  him,  a  peace  would  become  impossible."  He 
goes  on  to  say,  that,  "as  in  the  most  just  cause  we  are  never  to  lose 
sight  of  the  restoration  of  peace  but  are  constantly  to  tend  towards 
this  salutary  view,  no  other  way  is  left  than  to  agree  on  all  the  claims 
and  grievances  on  both  sides,  and  to  extinguish  all  differences  by  the 
most  equitable  convention  which  the  juncture  will  admit  of."  It  is, 
therefore,  an  agreement  to  waive  all  discussion  concerning  the  respec- 
tive rights  of  the  parties,  and  to  bury  in  oblivion  all  the  original  causes 
of  the  war.  It  is  an  explanation  of  the  nature  of  that  peace  and  good 
understEtnding  which  is  to  take  place  between  the  two  countries,  when- 
ever that  event  shall  be  happily  accomplished.    It  would  be  a  stretch  be- 


440  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

3^ond  the  limits  to  which  a  fair  interpretation  of  these  words  could  be 
carried,  to  say  they  were  intended  to  convey  any  other  meaning.  I 
am  of  opinion,  therefore,  that  the  ratification  is  the  point  from  which 
the  treaty  must  take  effect.  "Des  ce  moment"  must  be  referred  to  the 
moment  at  which  the  treaty  received  its  valid  existence  by  mutual  rati- 
fication. It  is  perfectly  clear  that  it  was  so  considered  on  the  part 
of  Sweden.  The  British  officer  who  was  sent  to  the  Swedish  coast  was 
still  received  with  the  same  caution  as  in  the  time  of  war,  and  was 
blindfolded  before  he  was  permitted  to  enter  Carlsham.  Hanoe  remain- 
ed in  British  possession,  and  the  only  communication  between  that  is- 
land and  the  main  land  of  Sweden  was  by  flags  of  truce.  Though  it 
was  reasonable  to  expect  that  Sweden  would  return  to  the  relations  of 
amity  with  this  country,  yet  it  is  quite  clear  that  she  had  not  at  that 
time  confirmed  the  treaty,  and,  therefore,  could  not  be  entitled  to  the 
benefit  of  a  neutral  character. 

But,  in  order  to  give  validity  to  the  present  claim,  another  proposition 
must  necessarily  be  maintained.     *     *     * 

I  am  of  opinion  that  the  claim  which  has  been  given  fails  upon  the 
two  essential  points,  both  in  respect  of  the  neutrality  of  Sweden,  and 
of  the  neutrality  of  the  place  of  capture,  and  consequently  that  these 
ships  and  cargoes  are  Hable  to  condemnation. 


LLOYD  v.  EOWRING. 

(King's  Beach,  1920.    36  Times  Law  Rep.  397.) 

The  plaintiff  in  this  case  claimed  moneys  alleged  to  be  due  under 
two  policies  of  insurance,  together  with  interest  until  payment  or  judg- 
ment. 

Mr.  Barrington-Ward,  K.  C,  and  Mr.  C.  J.  Conway  appeared  for 
the  plaintiff ;  and  Mr.  R.  A.  Wright,  K.  C,  and  Mr.  Claughton  Scott 
for  the  defendant, 

On  November  16,  1917,  the  plaintiff  took  out  a  policy  of  insurance 
which  was  underwritten  by  the  defendant  and  other  underwriters.  By 
the  policy  each  underwriter  bound  himself  to  pay  the  amount  of  his 
separate  subscription  "if  peace  is  not  declared  between  Great  Britain 
and  Germany  on  or  before  June  30,  1919."  On  the  same  date  the 
plaintiff  took  out  another  policy,  also  underwritten  by  the  defendant 
and  others,  by  which  each  underwriter  bound  himself  to  pay  the 
amount  of  his  separate  subscription  if  peace  was  not  declared  between 
Great  Britain  and  Germany  on  or  before  September  30,  1919. 

The  plaintiff  now  contended  that  peace  had  not  been  declared  be- 
tween Great  Britain  and  Germany  either  on  or  before  June  30,  1919, 
or  on  or  before  September  30,  1919.  He  had  claimed  payment  under 
the  policies,  but  the  defendant  had  refused  to  pay ;  and  notice  had  been 


Ch.  5)  TREATIES  441 

given  to  the  defendant  that  interest  also  would  be  claimed  on  the 
amounts  due. 

The  defendant  admitted  the  policies,  but  contended  that  peace  was 
declared  between  Great  Britain  and  Germany  on  or  before  June  30, 
1919 — viz.,  on  June  28.  Alternatively,  he  pleaded  that  the  date  on 
which  peace  between  Great  Britain  and  Germany  had  been  declared 
had  not  yet  been  determined,  and  that  the  action  was  therefore  pre- 
mature. 

Mr.  Barrington-Ward,  in  opening  the  case  referred  to  Kotzias  v. 
Tyser,  36  The  Times  L.  R.  194,  in  which  Mr.  Justice  Roche  had  decid- 
ed that  peace  had  not  been  "concluded"  until  January  of  the  present 
year,  and  he  submitted  that  the  phrase  "peace  is  not  declared"  could 
not  be  distinguished  from  the  phrase  "peace  is  not  concluded." 

Mr.  Wright  submitted  that  on  June  28,  1919,  peace  was  signed  at 
Versailles,  and  from  that  moment  commercial  relations  could,  sub- 
ject to  certain  restrictions,  be  resumed  with  Germany;  and  at  that 
moment  the  state  of  war  undoubtedly  came  to  an  end.  The  policy 
was  a  business  document  made  between  business  men  for  a  business 
purpose,  and  must  be  construed  as  such,  irrespective  of  the  more  tech- 
nical meaning  that  might  be  given  to  the  words.  Ratification  of  the 
treaty  was  a  mere  formality,  and  the  essential  fact  was  the  signing  of 
peace  on  June  28.  He  referred  to  Hall's  International  Law  (6th  Ed.) 
p.  554. 

Mr.  Justice  SankEy,  in  his  judgment,  said  that  the  question  was, 
when  could  peace  be  said  to  have  been  declared.  The  defendant  con- 
tended that  peace  was  declared  on  June  28,  1919 ;  the  plaintiff  contended 
that  it  was  not  declared  until  January,  1920.  In  his  view,  the  judg- 
ment of  Mr.  Justice  Roche,  in  Kotzias  v.  Tyser,  supra,  concluded  this 
case ;  he  was  bound  to  follow  it,  and  he  was  satisfied  that  it  was  right. 

His  Lordship  then  referred  to  the  Termination  of  War  Act,  1918, 
and  to  a  proclamation  which  appeared  in  the  London  Gazette  for  Feb- 
ruary 10,  1920,  ordering  that  January  10,  1920,  should  be  treated  as 
the  date  of  the  termination  of  the  war.  In  Kotzias  v.  Tyser,  supra, 
the  word  used  was  "conclude,"  here  the  woi^  was  "declared"  ;  and 
he  thought  that  the  present  was  the  stronger  case  of  the  two,  for  a 
thing  could  not  be  "declared"  to  exist  until  it  had  actually  come  into 
existence. 

There  must  therefore  be  judgment  for  the  plaintiff  on  the  main 
question.'     *     *     *. 

5  In  Rattray  v.  Holden,  1920,  36  Times  Law  Rep.  798,  799.  the  court  was 
called  upon  to  construe  a  policy  of  insurance  containing  the  words  "the  sign- 
ing of  peace  between  Groat  Britain  and  Germany."  In  the  course  of  his  opin- 
ion. Mr.  Justice  Darling  said : 

"Strictly  speaking,  there  was  not  peace  until  the  war  ended,  and  the 
termination  of  the  war  with  Germany  was  fixed  by  Order  in  Council  as  being 
on  January  10, 1920.  Until  there  was  a  termination  of  the  war  there  could  not 
be  peace,  for  peace  and  war  could  not  coexist.  He  doubted  very  much 
whether  they  could  'sign  peace."     They  could  sign  a  treaty,  however.    These 


442  RIGHTS   AND   DUTIES   OF    NATIONS   IN   TIME   OF   PEACE       (Part  1 

HARCOURT  et  al.  v.  GAILLARD  et  al. 
(Supreme  Court  of  the  United  States,  1827.    12  Wheat.  523,  6  L.  Ed.  716.) 

A  British  grant  of  land  within  the  Hmits  of  the  old  Thirteen  Colonies 
was  made  to  the  ancestor  of  the  plaintiff  on  January  24,  1777,  and  the 
question  in  issue  was  whether  the  title  to  the  land  in  controversy  was 
in  the  British  government  or  not  at  the  date  of  the  grant. 

Mr.  Justice  Johnson  delivered  the  opinion  of  the  court ;  e  *  *  * 
But  this  is  not  the  material  fact  in  the  case ;  it  is  this,  that  this  limit 
was  claimed  and  asserted  by  both  of  those  states  [South  Carolina 
and  Georgia]  in  the  Declaration  of  Independence,  and  the  right  to 
it  was)  established  by  the  most  solemn  of  all  international  acts,  the 
treaty  of  peace.  It  has  never  been  admitted  by  the  United  States,  that 
they  acquired  anything  by  way  of  cession  from  Great  Britain  by  that 
treaty.  It  has  been  viewed  only  as  a  recognition  of  pre-existing  rights, 
and  on  that  principle  the  soil  and  sovereignty,  within  their  acknowl- 
edged limits,  were  as  much  theirs  at  the  Declaration  of  Independence 
as  at  this  hour.  By  reference  to  the  treaty,  it  will  be  found  that  it 
amounts  to  a  simple  recognition  of  the  independence  and  the  limits  of 
the  United  States,  without  any  language  purporting  a  cession  or  relin- 
quishment of  right  on  the  part  of  Great  Britain.  In  the  last  article 
of  the  treaty  of  Ghent  will  be  found  a  provision  respecting  grants  of 
land  made  in  the  islands  then  in  dispute  between  the  two  states, 
which  affords  an  illustration  of  this  doctrine.  By  that  article,  a 
stipulation  is  made  in  favor  of  grants  before  the  war,  but  none  for 
those  which  were  made  during  the  war.  And  such  is  unquestionably 
the  law  of  nations.  War  is  a  suit  prosecuted  by  the  sword;  and 
where  the  question  to  be  decided  is  one  of  original  claim  to  territory, 
grants  of  soil  made  flagrante  bello  by  the  party  that  fails  can  only 
derive  validity-  from  treaty  stipulations.'^ 

were  not  artistic  words  at  all ;  they  were  very  loose  words,  and  if  they 
could  not  construe  them  strictly  the  plaintiff's  case  was  a  bad  one.  They 
could  not  sign  peace  when  there  was  no  peace,  and  there  was  no  peace  with 
Germany  until  by  Order  in  Council  .January  10  was  fixed  as  the  date.  The  Act 
evidently  contemplated  loose  expressions  used  in  contracts.  January  10 
appeared  to  him  to  be  the  date  with  regard  to  which  this  contract  was  made 
and  his  judgment  would  be  for  the  defendant  with  costs." 

^  Part  of  the  opinion  is  omitted. 

Mn  Mcllvaine  v.  Coxe's  Lessee,  4  Cranch,  209,  212,  2  L.  Ed.  598  (1808), 
the  Supreme  Court  of  the  United  States  say :  "That  the  several  states  which 
composed  this  Union,  so  far  at  least  as  regarded  their  municipal  regulations, 
became  entitled,  from  the  time  when  they  declared  themselves  independent,  to 
all  the  rights  and  powers  of  sovereign  states,  and  that  they  did  not  derive 
them  from  concessions  made  by  the  British  king.  The  treaty  of  peace  contains 
a  recognition  of  their  independence,  not  a  grant  of  it.  From  hence  it  results, 
that  the  laws  of  the  several  state  governments  were  the  laws  of  sovereign 
states,  and  as  such  were  obligatory  upon  the  people  of  such  state  from  the 
time  they  were  enacted."  See  also,  Inglis  v.  Trustees  of  Sailor's  Snug  Harbor, 
3  Pet.  99,  7  L.  Ed.  617  (1830). 


Ch.  5)  TREATIES  ^^3 

HAVER  V.  YAKER. 

(Supreme  Court  of  the  United  States,  1869.    9  Wall.  32,  19  L.  Ed.  571.) 

Error  to  the  Court  of  Appeals  of  Kentucky ;   the  case  being  thus : 

One  Yaker,  a  Swiss  by  birth,  who  had  come  many  years  ago  to  the 
United  States  and  become  a  "naturahzed  citizen  thereof,  died  in  Ken- 
tucky in  1853,  intestate,  seized  of  real  estate  there.  He  left  a  widow, 
who  was  a  resident  and  citizen  of  Kentucky,  and  certain  heirs  and  next 
of  kin,  aliens  and  residents  in  Switzerland. 

By  the  laws  of  Kentucky  in  force  in  1853,  the  date  of  his  death, 
aliens  were  not  allowed  to  inherit  real  estate  except  under  certain  con- 
ditions, within  which  Yaker's  heirs  did  not  come,  and  if  the  matter 
was  to  depend  on  those  laws,  the  widow  was,  by  the  laws  then  in  force 
in  Kentucky,  plainly  entitled  to  the  estate. 

However,  in  1850,  a  treaty  was  "concluded  and  signed"  by  the  re- 
spective plenipotentiaries  of  the  two  countries,  between  the  Swiss  Con- 
federation and  the  United  States  (11  Stat.  587)  upon  the  proper  con- 
struction of  which,  as  Yaker's  heirs  asserted — although  the  widow 
denied  that  the  construction  put  upon  the  treaty  by  the  heirs  was  a 
right  one — these  heirs  were  entitled  to  take  and  hold  the  estate.  The 
treaty  provided  by  its  terms  that  it  should  be  submitted  on  both  sides  to 
the  approval  and  ratification  of  the  respective  competent  authorities 
of  each  contracting  party,  and  that  the  ratifications  should  be  exchang- 
ed at  Washington  as  soon  as  circumstances  should  admit.  It  was  so 
submitted,  but  was  not  duly  ratified,  nor  were  the  respective '  ratifica- 
tions exchanged  in  Washington  till  November  8,  1855,  at  which  time 
the  ratification  and  exchange  was  made.  And  on  the  next  day  the 
President,  by  proclamation — the  treaty  having  been  altered  in  the  Sen- 
ate— made  the  treaty  public. 

In  1859  the  Swiss  heirs,  who  had  apparently  not  heard  before  of  their 
kinsman's  death,  instituted  proceedings  to  have  the  real  estate  of  their 
kinsman,  now  in  possession  of  the  widow,  assigned  to  them,  and  ar- 
guing that  on  a  right  construction  of  the  treaty  it  was  theirs. 

But  a  preliminary  question,  and  in  case  of  one  resolution  of  it,  a 
conclusive  objection  to  their  claim  was  here  raised ;  the  question,  name- 
ly, at  what  time  the  treaty  of  1850-55,  as  it  regarded  private  rights,  be- 
came a  law.  Was  it  when  it  bore  date,  or  was  it  only  when  the  ratifi- 
cations were  exchanged  between  the  parties  to  it?  If  not  until  it  was 
ratified,  then  there  was  no  necessity  of  deciding  whether  by  its  terms, 
the  heirs  of  Yaker  had  any  jiist  claim  to  this  real  estate,  because  in  no 
aspect  of  the  case  could  the  treaty  have  a  retroactive  effect  so  as  to 
defeat  the  title  of  the  widow,  which  vested  in  her,  by  the  law  of 
Kentucky  of  1853,  on  the  death  of  her  husband. 

The  Court  of  Appeals  of  Kentucky,  where  the  heirs  set  up  the  treaty 
as  a  basis  of  their  title,  decided  that  it  took  effect  only  when  ratified. 


444  RIGHTS  AND   DUTIES  OF  NATIONS   IN   TIME  OF   PEACE       (Part  1 

and  SO  deciding  against  their  claim,  the  case  was  now  here  for  review 
under  the  twenty-fifth  section  of  the  Judiciary  Act  (Act  Sept.  24,  1789, 
c.  20,  1  Stat.  85). 

Carlisle  &  McPherson,  for  the  heirs,  citing  Kent's  Commentaries 
(vol.  1,  p.  170),  and  United  States  v.  Reynes,  9  How.  148,  289,  13  L. 
Ed.  74,  contended  that  a  treaty  binds  the  contracting  parties  from  its 
conclusion,  and  that  this  is  understood  to'  be  from  the  day  it  is  signed. 
If  that  view  was  right,  the  treaty  was  operative  at  the  date  of  Yaker's 
death,  and  as  they  argued  carried  the  estate  to  the  heirs. 

Montgomery  Blair,  opposed  a  brief  of  Porter  &  Beck  being  filed  on 
the  same  side,  argued  that  while  the  position  of  the  other  side  might  be 
admitted  so  far  as  respected  the  contracting  governments,  the  position 
was  not  true  as  respected  private  rights.  And  this  for  a  good  reason. 
For  that  with  us_a_h;eat^^jiLU,slLbe_agre£d_tobyJ^  Senate,  and  this  in 
secret  session,  b.£fDX£_itJ)ecomes  a  law.    While  before~the  Senate  irSiay 


be  amended  and  largely  alteredTTIiis  particular  treaty,  the  President's 
proclamation  shows,  was  amended,  and  for  aught  that  appears  to  the 
contrary,  the  very  article  upon  which  the  heirs  of  Yaker  now  found 
their  claim,  may  have  been  the  only  amendment  made,  and  it  may  have 
been  inserted  long  after  Yaker's  death  and  the  accrual  of  the  widow's 
rights. 

If  this  view  is  right  we  need  not  inquire  into  the  meaning  of  the 
treaty. 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

It  is  undoubtedly  true,  as  a  principle  of  international  law,  that,  as 
respects  the  rights  of  either  government  under  it,  a  treaty  is  consider- 
ed as  concluded  and  binding  from  the  date  of  its  signature.  In  this 
regard  the  exchange  of  ratifications  has  a  retroactive  effect,  confirming 
the  treaty  from  its  date.  Wheaton's  International  Law,  by  Dana,  336, 
bottom  paging.  But  a  different  rule  prevails  where  the  treaty  operates 
on  individual  rights.  The  principle  of  relations  does  not  apply  to  rights 
of  this  character,  which  were  vested  before  the  treaty  was  ratified. 
In  so  far  as  it  affects  them,  it  is  not  considered  as  concluded  until  there 
is  an  exchange  of  ratifications,  and  this  we  understand  to  have  been 
decided  by  this  court,  in  Arredondo's  Case,  reported  in  6  Pet.  749,  8 
L.  Ed.  547.  The  reason  of  the  rule  is  apparent.  In  this  country,  a 
treaty  is  something  more  than  a  contract,  for  the  federal  Constitution 
(article  6)  declares  it  to  be  the  law  of  the  land.  If  so,  before  it  can 
become  a  law,  the  Senate,  in  whom  rests  the  authority  to  ratify  it,  must 
agree  to  it.  But  the  Senate  are  not  required  to  adopt  or  reject  it  as  a 
whole,  but  may  modify  or  amend  it,  as  was  done  with  the  treaty  under 
consideration.  As  the  individual  citizen,  on  whose  rights  of  property  it 
operates,  has  no  means  of  knowing  anything  of  it  while  before  the 
Senate,  it  would  be  wrong  in  principle  to  hold  him  bound  by  it,  as  the 
law  of  the  land,  until  it  was  ratified  and  proclaimed.  And  to  construe 
the  law,  so  as  to  make  the  ratification  of  the  treaty  relate  back  to  its 


Ch.  5)  '  TREATIES  "         ^  445 

signing,  thereby  divesting  a  title  already  vested,  would  be  manifestly 
unjust,  and  cannot  be  sanctioned. 

These  views  dispose  of  this  case,  and  we  are  not  required  to  deter- 
mine whether  this  treaty,  if  it  had  become  a  law  at  an  earlier  date, 
would  have  secured  the  plaintiffs  in  error  the  interest  which  they  claim 
in  the  real  estate  left  by  Yaker  at  his  death. 

Judgment  affirmed.* 


J.  RIBAS  £  HIJO  V.  UNITED  STATES. 

(United  States  District  Court  for  the  District  of  Porto  Rico,  1901.     1  Porto 
Rico  Federal  Reports,  71.) 

The  Congress  of  the  United  States  declared  that  war  existed  with 
Spain  from  April  21,  1898.  On  August  12,  1898,  hostilities  between 
Spain  and  the  United  States  were  suspended,  upon  the  signature  of  a 
project  of  agreement  embodying  the  terms  of  a  basis  for  the  establish- 
ment of  peace. 

Before  the  cessation  of  hostilities,  the  United  States  seized  a  vessel 
named  Paz,  belonging  to  the  plaintiff,  for  the  storage  of  coal.  The 
plaintiff  claimed  that  the  vessel  was  used  for  twelve  months  and  two 
weeks,  that  is  to  say,  from  July  26,  1898,  to  August  12,  1899. 

The  answer  of  the  "United  States  admitted  the  alleged  use  from 
July  28,  1898,  to  May,  1899,  but  denied  liability  upon  the  ground  that 
the  vessel  belonging  to  the  plaintiff  was  enemy  property,  and  was  so 
seized  by  the  military  forces  of  the  United  States. 

8  Mr.  Justice  Wayne,  in  Davis  v.  Police  Jury,  9  How.  280,  289,  13  L.  Ed. 
138  (ISuO),  says: 

"All  treaties,  as  well  those  for  cessions  of  territory  as  for  other  purposes, 
are  bindiiic:  upon  the  contracting  parties,  unless  when  otherwise  provided  in 
them,  from  the  day  they  are  signed.  The  ratification  of  them  relates  back  to 
the  time  of  signing.     Vattel,  B.  4,  c.  2,  §  22 ;    Mart  Summary,  B.  S,  c.  7,  §  5. 

"It  is  true  that,  in  a  treaty  for  the  cession  of  territory,  its  national  char- 
acter continues,  for  all  commercial  purposes;  but  full  sovereignty,  for  the 
exercise  of  it,  does  not  pass  to  the  nation  to  which  it  is  transferred  until 
actual  delivery.  But  it  is  also  true,  that  the  exercise  of  sovereignty  by  the 
ceding  country  ceases  except  for  strictly  municipal  purposes,  especially  for 
granting  lands.  And  for  the  same  reason  in  both  cases; — because,  after  the 
treaty  is  made,  there  is  not  in  either  the  union  of  possession  and  the  right 
to  the  territory  which  must  concur  to  give  plenum  dominium  et  utile.  To  give 
that,  there  must  be  the  jus  in  rem  and  the  jus  in  r««,  or  what  is  called  in  the 
common  law  of  England  the  juris  et  seisinae  conjunctio.  'This  general  law 
of  property  applies  to  the  right  of  territory  no  less  than  to  other  rights,  and 
all  writers  upon  the  law  of  nations  concur,  that  the  practice  and  conventional 
law  of  nations  have  been  conformable  to  this  principle.'  Putfendorf,  par 
Barbeyrac,  lib.  4,  c.  9,  §  8,  note  2. 

"In  this  case,  after  the  treaty  was  made,  and  until  Louisiana  was  delivered 
to  France,  its  possession  continued  in  Spain.  The  right  to  the  territory, 
though  in  France,  was  imperfect  until  ratified,  but  absolute  by  ratification 
from  the  date  of  the  treaty." 

The  learned  justice  cited  with  approval,  indeed  he  based  his  argument  and 
opinion  upon  the  judgment  of  Sir  William  Scott  in  The  Fama,  5  C.  Rob.  106 
(3804),  ante,  D.  ISl. 


446  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

The  plaintiff  brought  action  for  ten  thousand  dollars,  for  the  seizure 
and  use  of  the  vessel.  The  District  Court  dismissed  the  suit,  and  the 
plaintiff  petitioned  for  a  rehearing  of  the  cause  of  action." 

Holt,  Judge,  delivered  the  following  opinion : 

A  rehearing  is  asked  upon  the  ground  that  the  court  has  found,  as 
a  matter  of  fact,  that  the  use  continued  until  April,  1899,  and  as  the 
protocol,  followed  by  the  President's  proclamation,  was  dated  August 
12,  1898,  the  complainants  say  they  should  recover  on  a  quantum  meruit 
the  value  of  the  use  of  the  vessel  between  these  dates.  This  was  a 
seizure  in  time  of  war,  and  not  in  time  of  peace.  It  was,  as  has  been 
said,  a  special  case  arising  from  the  necessary  operation  of  war,  and  the 
war  power  of  the  government  concluded  it  was  necessary  to  take  and 
use  the  property.  Even  conceding  that  the  seizure  did  not  terminate 
all  right  of  the  Spanish  owner  in  the  property,  or  to  any  use  of  it,  yet 
the  protocol  and  proclamation  did  not  end  the  war.  The  protocol  work- 
ed a  mere  truce.  The  President  has  not  the  power  to  terminate  the 
war  by  treaty  without  the  advice  or  consent  of  the  Senate  of  the  Unit- 
ed States.  If  a  treaty  be  silent  as  to  when  it  is  to  become  effective,  the 
weight  of  authority  is  that  it  does  not  become  so  until  ratified,  and 
this  was  not'  done  until  in  April,  1899,  and  the  war  did  not  end  by 
treaty  until  then ;  and  all  the  use  made  by  the  government  of  the 
vessel  was  justified  by  the  rules  of  war  and  international  law,  without 
compensation.     The  motion  is  overruled  and  rehearing  denied.^** 


SECTION  3.— INTERPRETATION  OF  TREATIES 


GEOFROY  V.  RIGGS. 

(Supreme  Court  of  the  United  States,  1890.     133  U.  S.  258.  10  Sup.  Ct.  295, 

33  L.  Ed.  642.) 

In  Equity.  The  bill  alleged  that  the  suit  was  "a.  purely  friendly  suit." 
The  defendants  demurred  to  the  bill,  and  it  was  dismissed.  The  com- 
plainants appealed.    The  court  stated  the  case  as  follows: 

On  the  19th  day  of  January,  1888,  T.  Lawrason  Riggs,  a  citizen  of 
the  United  States  and  a  resident  of  the  District  of  Columbia,  died  at 
Washington,  intestate,  seized  in  fee  of  real  estate  of  great  value  in  the 
District.  The  complainants  are  citizens  and  residents  of  France  and 
nephews  of  the  deceased.     On  the  12th  of  March,  1872,  the  sister  of 

8  The  shortened  statement  of  the  facts  has  been  substituted  for  that  of  the 
report. 

10  Affirmed  in  J.  Ribas  y  Hijo  v.  U.  S.,  194  U.  S.  315,  24  Sup.  Ct.  727,  48  L. 
Ed.  994  (1904). 


Ch.  5)  TREATIES  447 

the  deceased,  then  named  Kate  S.  Riggs,  intermarried  with  Lotiis  de 
Geofroy,  of  France.  She  was  at  the  time  a  resident  of  the  District  of 
Columbia  and  a  citizen  of  the  United  States.  He  was  then  and  always 
has  been  a  citizen  of  France.  The  complainants  are  the  children  of  this 
marriage,  and  are  infants  now  residing  with  their  father  in  France. 
One  of  them  was  born  July  14,  1873,  at  Pekin,  in  China,  whilst  his  fa- 
ther was  the  French  minister  plenipotentiary  to  that  country,  and  was 
there  only  as  such  minister.  The  other  was'  born  October  18,  1875, 
at  Cannes,  in  France.  Their  mother,  who  was  a  sister  of  all  the  defend- 
ants except  Medora,  wife  of  the  defendant  E.  Francis  Riggs,  died  Feb- 
ruary 7,  1881.  The  deceased,  T,  Lawrason  Riggs,  left  one  brother, 
E.  Francis  Riggs,  and  three  sisters,  Ahce  L.  Riggs,  Jane  A.  Riggs  and 
Cecilia  t^oward,  surviving  him,  but  no  descendants  (fi  any  deceased 
brother  or  deceased  sister  except  the  cdtoiplainants. 

The  defendants,  with  the  exception  of  Cecilia  Howard,  are,  and  al- 
ways have  been,  citizens  of  the  United  States  and  residents  of  the  Dis- 
trict of  Columbia.  Cecilia  Howard,  in  1867,  intermarried  with  Henry 
Howard,  a  British  subject,  and  since  that  time  has  resided  with  him  in 
England. 

The  real  property  described  in  the  bill  of  complaint  cannot  be  divid- 
ed without  actual  loss  and  injury,  and  the  interest  of  the  complainants, 
if  they  have  any,  as  well  as  of  the  defendants,  in  the  property  would  be 
promoted  by  its  sale  and  a  division  of  the  proceeds. 

To  the  bill  of  complaint  setting  up  these  facts  and  praying  a  sale  of 
the  premises  described  and  a  division  of  the  proceeds  among  the  par- 
ties to  the  suit  according  to  their  respective  rights  and  interests  the 
defendants  demurred,  on  the  ground  that  the  complainants  were  in- 
capable of  inheriting  from  their  uncle  any  interest  in  the  real  estate. 
The  Supreme  Court  of  the  District  of  Columbia  sustained  the  demur- 
rer and  dismissed  the  bill.  From  the  decree  the  case  is  brought  to  this 
court  on  appeal. 

Mr.  Justice  Field,  after  stating  the  case,  delivered  the  opinion  of 
the  court. 

The  complainants  are  both  citizens  of  France.  The  fact  that  one  of 
them  was  born  in  Pekin,  China,  does  not  change  his  citizenship.  His 
father  was  a  Frenchman,  and  by  the  law  of  France  a  child  of  a  French- 
man, though  born  in  a  foreign  country,  retains  the  citizenship  of  his 
father.  In  this  case,  also,  his  father  was  engaged,  at  the  time  of  the 
son's  birth,  in  the  diplomatic  service  of  France,  being  its  minister 
plenipotentiary  to  China,  and  by  public  law  the  children  of  ambassa- 
dors and  ministers  accredited  to  another  country  retain  the  citizenship 
of  their  father. 

The  question  presented  for  solution,  therefore,  is  whether  the  com- 
plainants, being  citizens  and  residents  of  France,  inherit  an  interest 
in  the  real  estate  in  the  District  of  Columbia  of  which  their  uncle,  a 
citizen  of  the  United  States  and  a  resident  of  the  District,  died  seized. 


448  RIGHTS  AND   DUTIES  OF   NATIONS   IN  TIME   OP  PEACE       (Part  1 

In  more  general  terms  the  question  is :  can  citizens  of  France  take  land 
in  the  District  of  Columbia  by  descent  from  citizens  of  the  United 
States? 

The  complainants  contend  that  they  inherit  an  estate  in  the  prop- 
erty described,  by  force  of  the  stipulation  of  article  7  of  the  convention 
between  the  United  States  and  France,  concluded  February  23,  1853 
(10  Stat.  996),  and  the  provisions  of  the  act  of  Congress  of  March  3, 
1887  (Comp.  St.  §§  3498-3500),  to  restrict  the  ownership  of  real  es- 
tate in  the  territories  to  American  citizens.  *  *  *  The  7th  article 
of  that  convention  is  as  follows : 

"In  all  states  of  the  Union,  whose  existing  laws  permit  it,  so  long 
and  to  the  same  extent  as  the  said  laws  shall  remain  in  force.  French- 
men shall  enjoy  the  right  of  possessing  personal  and  real  property  by 
the  same  title  and  in  the  sa«ie  manner  as  the  citizens  of  the  United 
States.  They  shall  be  free  to  dispose  of  it  as  they  may  please,  either 
gratuitously  or  for  value  received,  by  donation,  testament,  or  other- 
wise, just  as  those  citizens  themselves;  and  in  no  case  shall  they  be 
subjected  to  taxes  on  transfer,  inheritance,  or  any  others  different  from 
those  paid  by  the  latter,  or  to  taxes  which  shall  not  be  equally  imposed. 

"As  to  the  states  of  the  Union,  by  whose  existing  laws  aliens  are  not 
permitted  to  hold  real  estate,  the  President  engages  to  recommend  to 
them  the  passage  of  such  laws  as  may  be  necessary  for  the  purpose  of 
conferring  this  right. 

"In  like  manner,  but  with  the  reservation  of  the  ulterior  right  of 
establishing  reciprocity  in  regard  to  possession  and  inheritance,  the 
government  of  France  accords  to  the  citizens  of  the  United  States  the 
same  rights  within  its  territory  in  respect  to  real  and  personal  prop- 
erty, and  to  inheritance,  as  are  enjoyed  there  by  its  own  citizens."  10 
Stat.  996. 

This  article  is  not  happily  drawn.  It  leaves  in  doubt  what  is  meant 
by  "states  of  the  Union."  Ordinarily  these  terms  would  be  held  to 
apply  to  those  political  communities  exercising  various  attributes  of 
sovereignty  which  compose  the  United  States,  as  distinguished  from 
the  organized  municipalities  known  as  territories  and  the  District  of 
Columbia.  And  yet  separate  communities,  with  an  independent  local 
government,  are  often  described  as  states,  though  the  extent  of  their 
political  sovereignty  be  limited  by  relations  to  a  more  general  govern- 
ment or  to  other  countries.  Halleck  on  Int.  Law,  c.  3,  §§  5,  6,  7.  The 
term  is  used  in  general  jurisprudence  and  by  writers  on  public  law  as 
.denoting  organized  political  societies  with  an  established  government. 
Within  this  definition  the  District  of  Columbia,  under  the  government 
of  the  United  States,  is  as  much  a  state  as  any  of  those  political  com- 
munities which  compose  the  United  States.  Were  there  no  other 
territory  under  the  government  of  the  United  States,  it  would  not  be 
questioned  that  the  District  of  Columbia  would  be  a  state  within  the 
meaning  of  international  law ;  and  it  is  not  perceived  that  it  is  any 
less  a  state  within  that  meaning  because  other  states  and  other  terri- 


Ch.  5)  TREATIES  449 

tory  are  also  under  the  same  government.  In  Hepburn  v.  Ellzey,  2 
Cranch,  445,  452,  2  L.  Ed.  T^Zl,  the  question  arose  whether  a  resident 
and  a  citizen  of  the  District  of  Columbia  could  sue  a  citizen  of  Virginia 
in  the  Circuit  Court  of  the  United  States.  The  court,  by  Chief  Justice 
jSIarshall,  in  deciding  the  question,  conceded  that  the  District  of  Co- 
lumbia was  distinct  political  society,  and  therefore  a  state  according 
to  the  definition  of  writers  on  general  law;  but  held  that  the  act  of 
Congress  in  providing  for  controversies  between  citizens  of  different 
states  in  the  Circuit  Courts,  referred  to  that  term  as  used  in  the  Con- 
stitution, and  therefore  to  one  of  the  States  composing  the  United 
States.  A  similar  concession,  that  the  District  of  Columbia,  being  a  sep- 
arate political  community,  is,  in  a  certain  sense,  a  state,  is  made  by  this 
court  in  the  recent  case  of  Metropolitan  Railroad  Co.  v.  District  of 
Columbia,  132  U.  S.  1,  9,  10  Sup.  Ct.  19,  Zl  L.  Ed.  231,  decided  at  the 
present  term. 

Aside  from  the  question  in  which  of  these  significations  the  terms  are 
used  in  the  convention  of  1853,  we  think  the  construction  of  article  7 
is  free  from  difficulty.  In  some  states  aliens  were  permitted  to  hold  real 
estate,  but  not  to  take  by  inheritance.  To  this  right  to  hold  real  estate 
in  some  states  reference  is  had  by  the  words  "permit  it''  in  the  first 
clause,  and  it  is  alluded  to  in  the  second  clause  as  not  permitted  in  oth- 
ers. This  will  be  manifest  if  we  read  the  second  clause  before  the  first. 
This  construction,  as  well  observed  by  counsel,  gives  consistency  and 
harmony  to  all  the  provisions  of  the  article,  and  comports  with  its 
character  as  an  agreement  intended  to  confer  reciprocal  rights  on  the 
citizens  of  each  country  with  respect  to  property  held  by  them  within 
the  territory  of  the  other.  To  construe  the  first  clause  as  providing 
that  Frenchmen,  shall  enjoy  the  right  of  possessing  personal  and  real 
property  by  the  same  title  and  in  the  same  manner  as  citizens  of  the 
United  States,  in  states,  so  long  as  their  laws  permit  such  enjoyment,  is 
to  give  a  meaning  to  the  article  by  which  nothing  is  conferred  not  al- 
ready possessed,  and  leaves  no  adequate  reason  for  the  concession  by 
France  of  rights  to  citizens  of  the  United  States,  made  in  the  third 
clause.  We  do  not  think  this  construction  admissible.  It  is  a  rule, 
in  construing  treaties  as  well  as  laws,  to  give  a  sensible  meaning  to  all 
their  provisions  if  that  be  practicable.  "The  interpretation,  therefore,"' 
says  Vattel,  "which  would  render  a  treaty  null  and  inefficient  cannot 
be  admitted ;"  and  again,  "it  ought  to  be  interpreted  in  such  a  manner 
as  that  it  may  have  its  effect,  and  not  prove  vain  and  nugatory."  ^^  Vat- 
tel, book  II,  c.  17.  As  we  read  the  article  it  declares  that  in  all  the  states 
of  the  Union  by  whose  laws  aliens  are  permitted  to  hold  real  estate, 
so  long  as  such  laws  remain  in  force,  Frenchmen  shall  enjoy  the  right 

11  *'L'interpr6tatiou  qui  rendrait  un  acte  nul  et  sans  effet,  ne  peut  done  gtre 
admise.  *  *  *  II  faut  I'interpr^ter  de  manieie  qu'il  puisse  avoir  son  eliet, 
qu'il  ne  se  trouve  pas  vain  et  illusoire."  2  Droit  des  Gens,  265,  Edition  Pans, 
1863,  par  Pradier-Fodere. 

Scott  Int. Law — 29 


450  RIGHTS  AND   DUTIES   OF  NATIONS  IN  TIME  OF   PEACE       (Part  1 

of  possessing  personal  and  real  property  by  the  same  title  and  in  the 
same  manner  as  citizens  of  the  United  States.  They  shall  be  free  to 
dispose  of  it  as  they  may  please — by  donation,  testament,  or  otherwise 
— just  as  those  citizens  themselves.  But  as  to  the  states  by  whose  exist- 
ing laws  aliens  are  not  permitted  to  hold  real  estate,  the  treaty  engages 
that  the  President  shall  recommend  to  them  the  passage  of  such  laws 
as  may  be  necessary  for  the  purpose  of  conferring  that  right. 

In  determining  the  question  in  what  sense  the  terms  "states  of  the 
Union"  are  used,  it  is  to  be  borne  in  mind  that  the  laws  of  the  District 
and  of  some  of  the  territories,  existing  at  the  time  of  the  convention 
was  concluded  in  1853,  allowed  aliens  to  hold  real  estate.  If,  therefore, 
these  terms  are  held  to  exclude  those  political  communities,  our  govern- 
ment is  placed  in  a  very  inconsistent  position — stipulating  that  citizens 
of  France  shall  enjoy  the  right  of  holding,  disposing  of,  and  inheriting, 
in  like  manner  as  citizens  of  the  United  States,  property,  real  and  per- 
sonal, in  those  States  whose  laws  permit  aliens  to  hold  real  estate ;  that 
is,  that  in  those  States  citizens  of  France,  in  holding,  disposing  of,  and 
inheriting  property,  shall  be  free  from  the  disability  of  alienage ;  and, 
in  order  that  they  may  in  like  manner  be  free  from  such  disability  in 
those  states  whose  existing  laws  do  not  permit  aliens  to  hold  real  estate, 
engaging  that  the  President  shall  recommend  the  passage  of  laws  con- 
ferring that  right;  while  at  the  same  time,  refusing  to  citizens  of 
France  holding  property  in  the  District  and  in  some  of  the  territories, 
where  the  power  of  the  United  States  is  in  that  respect  unlimited,  a 
like  release  from  the  disability  of  alienage,  thus  discriminating  against 
them  in  favor  of  citizens  of  France  holding  property  in  states  having 
similar  legislation.  No  plausible  motive  can  be  assigned  for  such 
discrimination.  A  right  which  the  government  of  the  United  States 
apparently  desires  that  citizens  of  France  should  enjoy  in  all  the  states, 
it  would  hardly  refuse  to  them  in  the  District  embracing  its  capital,  or 
in  any  of  its  own  territorial  dependencies.  By  the  last  clause  of  the 
article  the  government  of  France  accords  to  the  citizens  of  the  United 
States  the  same  rights  within  its  territory  in  respect  to  real  and  per- 
sonal property  and  to  inheritance  as  are  enjoyed  there  by  its  own  citi- 
zens. There  is  no  limitation  as  to  the  territory  of  France  in  which 
the  right  of  inheritance  is  conceded.  And  it  declares  that  this  right  is 
given  in  like  manner  as  the  right  is  given  by  the  government  of  the 
United  States  to  citizens  of  France.  To  ensure  reciprocity  in  the  terms 
of  the  treaty,  it  would  be  necessary  to  hold  that  by  "states  of  the  Union" 
is  meant  all  the  political  communities  exercising  legislative  powers  in 
the  country,  embracing  not  only  those  political  communities  which  con- 
stitute the  United  States,  but  also  those  communities  which  constitute 
political  bodies  known  as  Territories  and  the  District  of  Columbia.  It 
is  a  general  principle  of  construction  with  respect  to  treaties  that  they 
shall  be  liberally  construed,  so  as  to  carry  out  the  apparent  intention 
of  the  parties  to  secure  equality  and  reciprocity  between  them.    As  they 

Scott  Int.Law 


Ch.  5)  TREATIES  451 

are  contracts  between  independent  nations,  in  their  construction  words 
are  to  be  taken  in  their  ordinary  meaning,  as  understood  in  the  public 
law  of  nations,  and  not  in  any  artificial  or  special  sense  impressed  upon 
them  by  local  law,  unless  such  restricted  sense  is  clearly  intended.  And 
it  has  been  held  by  this  court  that  where  a  treaty  admits  of  two  con- 
structions, one  restrictive  of  rights  that  may  be  claimed  under  it 
and  the  other  favorable  to  them,  the  latter  is  to  be  preferred.  Hauen- 
stein  V.  Lynham,  100  U.  S.  483,  487,  25  L.  Ed.  628.  The  stipulation 
that  the  government  of  France  in  like  manner  accords  to  the  citizens  of 
the  United  States  the  same  rights  within  its  territory  in  respect  to  real 
and  personal  property  and  inheritance  as  are  enjoyed  there  by  its  own 
citizens,  indicates  that  that  government  considered  that  similar  rights 
were  extended  to  its  citizens  within  the  territory  of  the  United  States, 
whatever  the  designation  given  to  their  different  political  communities. 

We  are,  therefore,  of  opinion  that  this  is  the  meaning  of  the  article 
in  question — that  there  shall  be  reciprocity  in  respect  to  the  acquisition 
and  inheritance  of  property  in  one  country  by  the  citizens  of  the  other, 
that  is,  in  all  political  communities  in  the  United  States  where  legisla- 
tion permits  aliens  to  hold  real  estate,  the  disability  of  Frenchmen  from 
alienage  in  disposing  and  inheriting  property,  real  and  personal,  is  re- 
moved, and  the  same  right  of  disposition  and  inheritance  of  property, 
in  France,  is  accorded  to  citizens  of  the  United  States,  as  are  there  en- 
joyed by  its  own  citizens.  This  construction  finds  support  in  the  first 
section  of  the  act  of  March  3,  1887,  c.  340,  24  Stat.  476  (Comp.  St.  § 
3498).  That  section  declares  that  it  shall  be  unlawful  for  any  person 
or  persons  not  citizens  of  the  United  States,  or  who  have  not  declared 
their  intention  to  become  citizens,  to  thereafter  acquire,  hold  or  own  real 
estate,  or  any  interest  therein,  in  any  of  the  territories  of  the  United 
States  or  in  the  District  of  Columbia,  except  such  as  may  be  acquired  by 
inheritance  or  in  good  faith  in  the  ordinary  course  of  justice  in  the 
collection  of  debts  previously  created.  There  is  here  a  plain  implication 
that  property  in  the  District  of  Columbia  and  in  the  territories  may  be 
acquired  by  aliens  by  inheritance  under  existing  laws;  and  no  prop- 
erty could  be  acquired  by  them  in  the  District  by  inheritance  except 
by  virtue  of  the  law  of  Maryland  as  it  existed  when  adopted  by  the 
United  States  during  the  existence  of  the  convention  of  1800  or  under 
the  7th  article  of  the  convention  of  1853.  Our  conclusion  is,  that  the 
complainants  are  entitled  to  take  by  inheritance  an  interest  in  the  real 
property  in  the  District  of  Columbia  of  which  their  uncle  died  seized. 
The  decree  of  the  court  below  will,  therefore,  be 

Reversed  and  the  cause  remanded,  with  direction  to  overrule  the  de- 
murrer of  the  defendants;  and  it  is  so  ordered.^* 

12  For  the  interpretation  of  treaties  in  general,  and  in  particular  for  the 
interpretation  of  the  Jay  Treaty  of  November  19,  1794,  see  Marryat  v.  Wilson, 
1  Bos.  &  P.  430   (1709). 

For  the  practical  application  of  the  principles  of  interpretation  of  a 
treaty,  see  Chilean-Peruvian  Accounts,  Award  of  the  Arbitrator  under  Protocol 


452  RIGHTS  AND   DUTIES  OF  NATIONS  IN   TIME  OP  PEACE       (Part  1 

Dated  March  2,  1874,  between  Chile  and  Peru  (1875),  2  Moore's  International 
Arbitrations  (189S)  2085. 

See  also  the  award  of  Alexander  Porter  Morse,  Arbitrator  in  the  Case  of 
Cliarles  A.  van  Bokkelen,  1888,  2  Moore's  International  Arbitrations,  1807. 
It  is,  unfortunately,  too  long  to  print. 

In  Adams  v.  Akerlund,  168  111.  632,  638,  48  N.  E.  454  (1897),  Mr.  Justice 
Magruder  said :  "Where  treaties  concern  the  rights  of  individuals,  it  is  fre- 
quently necessary  for  the  courts  to  ascertain  by  construction  the  meaning  in- 
tended to  be  conveyed  by  the  terms  used.  U.  S.  v.  Rauscher,  119  U.  S.  407  [7 
Sup.  Ct.  234,  30  L.  Ed.  425  (1886)  ]  ;  AVilson  v.  Wall,  6  Wall.  83  [18  L.  Ed.  727 
(1S67)];  Head  Money  Cases,  112  U.  S.  580  [5  Sup.  Ct.  247,  28  L.  Ed.  798 
(1884)].  In  thus  giving  a  construction  to  the  language  of  treaties,  the  courts 
will  adopt  the  same  general  rules  which  are  applicable  in  the  construction  of 
statutes,  contracts  and  written  instruments  generally,  in  order  to  effectuate  the 
purpose  and  intention  of  the  makers.  26  Am.  &  Eng.  Ency.  of  Law,  p.  555. 
Moreover,  it  is  another  well-settled  rule,  laid  down  by  the  Supreme  Court  of 
the  United  States,  that,  'where  a  treaty  admits  of  two  constructions,  one  re- 
stricted as  to  the  rights  that  may  be  claimed  under  it,  and  the  other  liberal, 
the  latter  is  to  be  preferred.'  Hauenstein  v.  Lynham,  lOO  U.  S.  483  [25  L.  Ed. 
628  (1879)]  ;  Schultze  v.  Schultze,  144  111.  290  D33  N.  E.  201,  19  L.  R.  A.  90, 
36  Am.  St.  Rep.  432  (1893)]." 

In  Tucker  v.  Alexandroff,  183  U.  S.  424.  437  [22  Sup.  Ct.  195,  46  L.  Ed.  264 
(1901)],  Mr.  Justice  Brown  uses  the  following  language:  "We  think,  then, 
that  the  rights  of  the  parties  must  be  determined  by  the  treaty,  but  that  this 
particular  convention,  being  operative  upon  both  powers  and  intended  for  their 
mutual  protection,  should  be  interpreted  in  a  spirit  of  uberrima  fides,  and  in 
a  manner  to  carry  out  its  manifest  purpose.  Taylor  on  International  Law,  § 
383.  As  treaties  are  solemn  engagements  entered  into  between  independent 
nations  for  the  common  advancement  of  their  interests  and  the  interests  ot 
civilization,  and  as  their  main  object  is  not  only  to  avoid  war  and  secure  a 
lasting  and  perpetual  peace,  but  to  promote  a  friendly  feeling  between  the  peo- 
ple of  the  two  countries,  they  should  be  interpreted  in  that  broad  and  liberal 
spirit  which  is  calculated  to  make  for  the  existence  of  perpetual  amity,  so  far 
as  it  can  be  done  without  the  sacrifice  of  individual  rights  or  those  principles 
of  personal  liberty  which  lie  at  the  foundation  of  our  jurisprudence.  It  is 
said  by  Chancellor  Kent  in  his  Commentaries,  Vol.  1,  p.  174:  'Treaties  of  every 
kind  are  to  receive  a  fair  and  liberal  interpretation  according  to  the  intention 
of  the  contracting  parties,  and  are  to  be  kept  with  the  most  scrupulous  good 
faith.  Their  meaning  is  to  be  ascertained  by  the  same  rules  of  construction 
and  course  of  reasoning  which  we  apply  to  the  interpretation  of  private 
contracts.' " 

If  treaties  between  nations  standing  upon  the  same  social  and  intellectual 
plane  are  to  be  liberally  construed,  it  stands  to  reason  that  when  one  con- 
tracting party  is  a  powerful  and  enlightened,  the  other  a  backward,  weak  and 
therefore  dependent  nation,  the  letter  must  yield  much  to  the  spirit.  Or  as 
Mr.  Justice  Gray  said,  in  Jones  v.  Mehan,  175  U.  S.  1,  11,  20  Sup.  Ct.  1,  44 
L.  Ed.  49  (1899)  :  "The  treaty  must  therefore  be  construed,  not  according  to 
the  technical  meaning  of  its  words  to  learned  lawyers  but  in  the  sense  in 
which  they  would  naturally  be  understood  by  the  Indians.  Worcester  v.^ 
Georgia,  6  Pet.  515  [8  L.  Ed.  4S3  (1832)]  ;  The  Kansas  Indians,  5  Wall.  737. 
760  [18  L.  Ed.  667  (1866)  ]  ;  Choctaw  Nation  v.  U.  S.,  119  U.  S.  1,  27,  28 
[7  Sup.  Ct.  75,  30  L.  Ed.  306  (1886)]." 

But,  however  liberally  the  treaty  may  be  interpreted,  it  is  the  agreement 
made  by  the  parties,  not  by  the  court,  that  is  to  be  interpreted.  The  spirit 
will,  indeed,  be  found  out,  but  a  new  clause  will  not  be  read  in  the  treaty. 
For  example,  in  The  Amiable  Isabella,  6  Wheat.  1,  5  L.  Ed.  191  (1821), 
Mr.  Justice  Story  refused  to  read  into  the  treaty  of  1795  with  Spain  the  form 
of  a  passport  which  the  contracting  parties  had,  it  would  seem,  inadvertently 
left  out.  In  like  manner  the  Supreme  Court  in  a  recent  case  refused  to  con- 
sider a  "proviso"  (to  which  ratification  was  made  subject)  as  part  of  the 
treaty,  because  the  proviso  was  omitted  in  the  official  publication  of  the  treaty. 
New  York  Indians  v.  U.  S.,  170  V.  S.  1,  18  Sup.  Ct.  531,  42  L.  Ed.  927  (1897). 
Where,  however,  a  written  declaration  was  annexed  to  the  treaty  at  the  time 
of  its  ratification,  the  declaration  was  held  as  obligatory  as  if  the  provision 


Ch.  5)  TREATIES  453 

SECTION  4.— RELATION  OF  TREATIES 
I.  To  States,  Parties  Thereto 


ARCHIBALD  HAMILTON  &  CO.  v.  EATON. 

(United   States  Circuit  Court.  District  of  Nortli  Carolina,  1796.     1  Huglies, 
240,  Fed.  Cas.  No.  5,980.) ^^ 

This  was  an  action  of  debt  upon  a  penal  bill  bearing  date  the  11th 
day  of  August,  1776,  for  the  penal  sum  of  800i,  proclamation  money, 
to  be  discharged  by  the  payment  of  400£,  like  money,  payable  on  the 
1st  day  of  August,  1778,  with  lawful  interest  from  that  date.  The 
plaintiffs,  Archibald  and  John  Hamilton,  trading  under  the  firm  of 
Archibald  Hamilton  &  Co.,  were  subjects  of  Great  Britain,  but  were 
residents  of  North  Carolina  before  and  at  the  time  of  the  declaration  of 
Independence,  July  4,  1776.  The  defendant,  John  Eaton,  was  a  citizen 
of  the  United  States,  and  of  North  Carolina,  and  was  a  citizen  of 
North  Carolina  before  the  said  Declaration  of  Independence. 

There  were  several  pleas  to  this  action.  It  is  useless,  as  the  case 
turned  on  that,  to  state  any  other  than  the  first  and  principal  one  of 
those  pleas,  which  was,  that  a  law  of  the  state  had  required  that  all 
persons,  subjects  of  the  state,  living  therein,  who  had  traded  to  Great 
Britain  or  Ireland,  should  take  an  oath  of  allegiance  or  depart  out  of 
the  state;  that  the  plaintiffs  had  departed  out  of  the  state,  leaving 
their  debt  due  them ;  that  another  law  of  the  State  had  appointed  com- 
missioners to  sequestrate  debts  of  citizens  due  to  subjects  of  Great 
Britain  to  the  use  of  the  state,  which  commissioners  had  duly  seques- 
trated this  debt,  which  the  defendant  had  paid  to  them  for  the  use  of 
the  state ;  and  that,  therefore,  by  the  laws  of  war  and  the  law  of 
nations,  the  defendant  did  not  owe  this  debt. 

To  this  plea  it  was  replied,  that  by  the  treaty  of  peace,  which  was 
entered  into  between  Great  Britain  and  the  United  States  (8  Stat.  80), 
which  terminated  the  War  of  the  Revolution  in  1783,  it  had  been 
stipulated  by  the  two  powers,  that  "creditors  on  either  side  shall  meet 
with  no  lawful  impediment  to  the  recovery  of  bona  iide  debts  hereto- 
fore contracted." 

had  been  inserted  in  the  body  of  the  treaty  itself,  because  the  declaration  was 
annexed  with  full  knowledge  and  consent  of  both  parties  to  the  treaty.  Doe 
V.  Bradon,  16  How.  635,  14  L.  Ed.  109O   (1853). 

On  the  question  of  the  interpretation  of  treaties  in  general,  see  a  very  learn- 
ed and  comprehensive  note  by  J.  C.  Banoiol't  Davis,  U.  S.  Treaties  and  Con- 
ventions, 18S9,  pp.  1227-1229  (printed  with  additions,  2  Butler's  Treaty-Mak- 
ing Power,  note  6,  pp.  14.5-148) . 

13  This  case  is  also  reported  in  Mart.  2d  Ed.  (1  N.  O.)  83. 


454  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

To  this  replication  there  was  a  demurrer,  and  there  was  a  joinder 
in  the  demurrer.     *     *     * 

Ellsworth,  C.  J.^*  It  is  admitted  that  the  bond  on  which  this  suit 
is  brought,  was  executed  by  the  defendant  to  the  plaintiffs ;  and  that 
the  plaintiffs  have  not  been  paid.  But  the  defendant  pleads,  that  since 
the  execution  of  the  bond  a  war  has  existed,  in  which  the  plaintiffs 
were  enemies;  and  that  during  the  war  this  debt  was  confiscated  and 
the  money  paid  into  the  treasury  of  the  state.  And  the  plaintiffs 
reply,  that  by  the  treaty  which  terminated  the  war,  it  was  stipulated, 
that  "creditors  on  either  side  should  meet  with  no  lawful  impediment 
to  the  recovery  of  bona  fide  debts  heretofore  contracted." 

Debts  contracted  to  an  alien  are  not  extinguished  by  the  interven- 
tion of  war  with  his  nation.  His  remedy  is  suspended  while  the  war 
lasts,  because  it  would  be  dangerous  to  admit  him  into  the  country,  or 
to  correspond  with  agents  in  it ;  and  also  because  the  transfer  of 
treasure  from  the  country  to  his  nation,  would  diminish  the  ability  of 
the  former,  and  increase  that  of  the  latter,  to  prosecute  the  war.  But 
with  the  termination  of  hostilities,  these  reasons  and  the  suspension  of 
the  remedy  cease. 

As  to  the  confiscation  here  alleged  it  is  doubtless  true,  that  enemy's 
property  so  far  as  consists  in  barring  the  creditor,  and  compelling  pay- 
ment from  the  debtors  for  the  use  of  the  public,  can  be  confiscated ;  and 
that  on  principles  of  equity,  though  perhaps  not  of  policy,  they  may  be. 
For  their  confiscation  as  well  as  that  of  property  of  any  kind,  may  serve 
as  an  indemnity  for  the  expenses  of  war,  and  as  a  security  against  fu- 
ture aggression.  That  such  confiscations  have  fallen  into  disuse,  has 
resulted  not  from  the  duty  which  one  nation,  independent  of  treaties, 
owes  to  another,  but  from  commercial  policy,  which  European  nations 
have  found  a  common,  and  indeed  a  strong  interest,  in  supporting. 
Civil  war,  which  terminates  in  a  severance  of  empire,  does,  perhaps, 
less  than  any  other,  justify  the  confiscation  of  debts;  because  of  the 
special  relation  and  confidence  subsisting,  at  the  time  they  were  con- 
tracted, and  it  may  have  been  owing  to  this  confiscation  as  well  as 
others,  that  the  American  states,  in  the  late  Revolution,  so  generally 
forbore  to  confiscate  the  debts  of  British  subjects.  In  Virginia,  they 
were  only  sequestered ;  in  South  Carolina,  all  debts  to  whomsoever  due 
were  excepted  from  confiscation;  as  were  in  Georgia,  those  of  "British 
merchants  and  others  residing  in  Great  Britain."  And  in  the  other 
states,  except  this,  I  do  not  recollect  that  British  debts  were  touched. 
Certain  it  is,  that  the  recommendation  of  Congress  on  the  subject  of 
confiscation  did  not  extend  to  them.  North  Carolina,  however,  judg- 
ing for  herself,  in  a  moment  of  severe  pressure,  exercised  the  sovereign 
power  of  passing  an  act  of  confiscation,  which  extended,  amongst 
others,  to  the  debts  of  the  plaintiffs,  providing,  however,  at  the  same 
time,  as  to  all  debts  which  should  be  paid  into  the  treasury,  under  that 

1*  The  opinion  of  Sitgreaves,  District  Judge,  is  omitted. 


Ch.  5)  TREATIES  455 

act,  that  the  state  would  indemnify  the  debtors,  should  they  be  obliged 
to  pay  again. 

Allowing,  then,  that  the  debt  in  question  was  in  fact  of  right  con- 
fiscated, can  the  plaintiffs  recover  by  the  treaty  of  1783? 

The  fourth  article  of  that  treaty  is  in  the  following  words :  "It  is 
agreed  that  creditors  on  either  side  shall  meet  with  no  lawful  impedi- 
ment to  the  recovery  of  the  full  value  in  sterling  money,  of  all  bona 
fide  debts  heretofore  contracted." 

There  is  no  doubt  but  the  debt  in  question  was  a  "bona  fide"  debt,  and 
theretofore  contracted,  i,  e.,  prior  to  the  treaty.  To  bring  it  within  the 
article,  it  is  also  requisite  that  the  debtor  and  creditors  should  have 
been  on  different  sides,  with  reference  to  the  parties  to  the  treaty,  and 
as  the  defendant  was  confessedly  a  citizen  of  the  United  States,  it 
must  appear  that  the  plaintiffs  were  subjects  of  the  King  of  Great 
Britain ;  and  it  is  pretty  clear,  from  the  pleadings  and  the  laws  of  the 
state,  that  they  were  so.  It  is  true  that  on  the  4th  of  July,  1776,  when 
North  Carolina  became  an  independent  State,  they  were  inhabitants 
thereof,  though  natives  of  Great  Britain;  and  they  might  have  been 
claimed  and  holden  as  citizens,  whatever  were  their  sentiments  or 
inclinations.  But  the  state  afterwards,  in  1777,  liberally  gave  to  them, 
with  others  similarly  circumstanced,  the  option  of  taking  the  oath  of 
allegiance,  or  of  departing  the  state  under  a  prohibition  to  return,  witli 
the  indulgence  of  a  time  to  sell  their  estates,  and  to  collect  and  remove 
their  effects.  They  chose  the  latter ;  and  ever  after  adhered  to  the 
King  of  Great  Britain,  and  must  therefore  be  regarded  as  on  the 
British  side. 

It  is  also  pertinent  to  the  inquiry,  whether  the  debt  in  question  be 
within  the  before-recited  article,  to  notice  an  objection  which  has  been 
stated  by  the  defendant's  counsel,  viz.,  that  at  the  date  of  the  treaty, 
what  is  now  sued  for  as  a  debt,  was  not  a  debt,  but  a  nonentity ;  pay- 
ment having  been  made,  and  a  discharge  effected,  under  the  act  of  con- 
fiscation; and  therefore  that  the  stipulation  concerning  debts  did  not 
reach  it. 

In  the  first  place,  it  is  not  true  that  in  this  case  there  was  no  debt 
at  the  date  of  the  treaty.  A  debt  is  created  by  contract,  and  exists  till 
the  contract  is  performed.  Legislative  interference,  to  exonerate  a 
debtor  from  the  performance  of  his  contract,  whether  upon  or  without 
conditions,  or  to  take  from  the  creditor  the  protection  of  law,  does  not 
in  strictness  destroy  the  debt,  though  it  may,  locally,  be  the  remedy  for 
it.  The  debt  remains,  and  in  a  foreign  country  payment  is  frequently 
enforced. 

Secondly,  it  was  manifestly  the  design  of  the  stipulation,  that  where 
debts  had  been  theretofore  contracted,  there  should  be  no  bar  to  their 
recovery,  from  the  operation  of  laws  passed  subsequent  to  the  con- 
tracts.   And  to  adopt  a  narrower  construction,  would  be  to  leave  credi- 


456  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

tors  to  a  harder  fate  than  they  have  been  left  to,  by  any  modern 
treaty. 

Upon  a  view,  then,  of  all  the  circumstances  of  this  case,  it  must  be 
considered  as  one  within  the  stipulation,  that  there  should  be  "no  law- 
ful impediment  to  a  lawful  recovery."  And  it  is  not  to  be  doubted,  that 
impediments  created  by  the  act  of  confiscation,  are  lawful  impediments. 
They  must  therefore  be  disregarded,  if  the  treaty  is  a  rule  of  decision. 
Whether  it  is  so  or  not,  remains  to  be  considered. 

Here  it  is  contended  by  the  defendant's  counsel,  that  the  confiscation 
act  has  not  been  repealed  by  the  state;  that  the  treaty  could  not 
repeal  or  annul  it ;  and  therefore  that  it  remains  in  force,  and  secures 
the  defendant.  And  further,  that  a  repeal  of  it  would  not  take  from 
him  a  right  vested,  to  stand  discharged. 

As  to  the  opinion,  that  a  treaty  does  not  annul  a  statute,  so  far  as 
there  is  an  interference,  it  is  unsound.  A  statute  is  a  declaration  of 
the  public  will,  and  of  high  authority;  but  it  is  controlled  by  the 
public  will  and  subsequently  declared.  Hence  the  maxim,  that  when 
two  statutes  are  opposed  to  each  other,  the  latter  abrogates  the  former. 
Nor  is  it  material,  as  to  the  effect  of  the  public  will,  what  organ  it  is 
declared  by,  provided  it  be  an  organ  constitutionally  authorized  to 
make  the  declaration.  A  treaty  when  it  is  in  fact  made,  is,  with 
regard  to  each  nation  that  is  a  party  to  it,  a  national  act,  an  expres- 
sion of  the  national  will,  as  much  so  as  a  statute  can  be.  And  it  does, 
therefore,  of  necessity,  annul  any  prior  statute,  so  far  as  there  is  an 
interference.  The  supposition  that  the  public  can  have  two  wills  at 
the  same  time,  repugnant  to  each  other,  one  expressed  by  a  statute, 
and  another  by  a  treaty,  is  absurd. 

The  treaty  now  under  consideration  was  made,  on  the  part  of  the 
United  States,  by  a  Congress  composed  of  deputies  from  each  state, 
to  whom  were  delegated  by  the  articles  of  confederation,  expressly, 
"the  sole  and  exclusive  right  and  power  of  entering  into  treaties  and 
alliances ;"  and  being  ratified  and  made  by  them,  it  became  a  com- 
plete national  act,  and  law  of  every  state. 

If,  however,  a  subsequent  sanction  of  this  state  was  at  all  necessary 
to  make  the  treaty  law  here,  it  has  been  had  and  repeated.  By  a 
statute  passed  in  1787  the  treaty  was  declared  to  be  law  in  this  state, 
and  the  courts  of  law  and  equity  were  enjoined  to  govern  their 
decisions  accordingly.  And  in  1789,  was  adopted  here  the  present 
Constitution  of  the  United  States,  which  declared,  that  all  treaties 
made,  or  which  should  be  made,  under  the  authority  of  the  United 
States,  should  be  the  supreme  law  of  the  land;  and  that  the  judges  in 
every  state  should  be  bound  thereby;  anything  in  the  constitution  or 
laws  of  any  state  to  the  contrary  notwithstanding.  Surely,  then,  the 
treaty  is  now  law  in  this  state,  and  the  confiscation  act,  so  far  as  the 
treaty  interferes  with  it,  is  annulled. 

Still  it  is  urged,  that  annulling  the  confiscation  act  cannot  annul 


Ch.  5)  TREATIES  457 

the  defendant's  right  of  discharge,  against  which  the  act  was  in 
force. 

It  is  true,  that  the  repeal  of  a  law  does  not  make  void  what  has  been 
well  done  under  it.  But  it  is  also  true,  admitting"  the  right  here  claim- 
ed by  the  defendant,  to  be  as  substantial  as  a  right  of  property  can  be, 
that  he  may  be  deprived  of  it,  if  the  treaty  so  requires.  It  is  justifiable 
and  frequent,  in  the  adjustment  of  national  differences,  to  concede  for 
the  safety  of  the  state,  the  rights  of  individuals.  And  they  are  after- 
wards indemnified  or  not,  according  to  circumstances.  What  is  most 
material  to  be  here  noted  is,  that  the  right  or  obstacle  in  question,  what- 
ever it  may  amount  to,  has  been  created  by  law,  and  not  by  the  credi- 
tors. It  comes  within  the  description  of  "lawful  impediments";  all  of 
which,  in  this  case,  the  treaty,  as  I  apprehend,  removes. 

Let  judgment  be  for  the  plaintiffs.^'  /y,    ,  ^ 

16  "The  efficacy  of  the  treaty  is  declared  and  guaranteed  by  the  Constitution 
of  the  United  States.  That  instrument  took  effect  on  the  fourth  day  of  March, 
1789.  In  1796,  but  a  few  years  later,  this  court  said :  'If  doubts  could  exist 
before  the  adoption  of  the  present  national  government,  they  must  be  entirely 
removed  by  the  sixth  article  of  the  Constitution,  which  provides  that  "all  trea- 
ties made  or  which  shall  be  made  under  the  authority  of  the  United  States 
shall  be  the  supreme  law  of  the  land,  and  the  judges  in  every  State  shall  be 
bound  thereby,  anything  in  .the  Constitution  or  laws  of  any  State  to  the  con- 
trary notwithstanding."  There  can  be  no  limitation  on  the  power  of  the 
people  of  the  United  States.  By  their  authority  the  State  constitutions  were 
made,  and  by  their  authority  the  Constitution  of  the  United  States  was  estab- 
lished :  and  they  had  the  power  to  change  or  abolish  the  State  constitutions 
or  to  make  them  yield  to  the  general  government  and  to  treaties  made  by 
their  authority.  A  treaty  cannot  be  the  supreme  law  of  the  land,  that  is,  of 
all  the  United  States,  if  any  act  of  a  State  Legislature  can  stand  in  its  way. 
If  the  constitution  of  a  State  (which  is  the  fundamental  law  of  the  State  and 
paramount  to  its  Legislature)  must  give  way  to  a  treaty  and  fall  before  it, 
can  it  be  questioned  whether  the  less  power,  an  act  of  the  State  Legislature, 
must  not  be  prostrate?  It  is  the  declared  will  of  the  people  of  the  United 
States  that  every  treaty  made  by  the  authority  of  the  United  States  shall  be 
superior  to  the  constitution  and  laws  of  any  individual  State,  and  their  will 
alone  is  to  decide.  If  a  law  of  a  State  contrary  to  a  treaty  is  not  void,  but 
voidable  only,  by  a  repeal  or  nullification  by  a  State  Legislature,  this  certain 
consequence  follows — that  the  will  of  a  small  part  of  the  United  States  may 
control  or  defeat  the  will  of  the  whole.'  Ware  v.  Hylton,  3  Dall.  199  [1  L.  Ed. 
568  (1796)]. 

"It  will  be  observed  that  the  treaty-making  clause  is  retroactive  as  well 
as  prospective.  The  treaty  in  question,  in  Ware  v.  Hylton.  was  the  British 
treaty  of  1783,  which  terminatec}  the  war  of  the  American  Revolution.  It  was 
made  while  the  Articles  of  Confederation  subsisted.  The  Constitution,  when 
adopted,  applied  alike  to  treaties  'made  and  to  be  made.' 

"We  have  quoted  from  the  opinion  of  Mr.  Justice  Chase  in  that  case,  not 
because  we  concur  in  everything  said  in  the  extract,  but  because  it  shows 
the  views  of  a  powerful  legal  mind  at  that  early  period,  w^hen  the  debates 
in  the  convention  which  framed  the  Constitution  must  have  been  fresh  in  the 
memory  of  the  leading  jurists  of  the  country. 

"In  Chirac  v.  Chirac,  2  Wheat.  259  [4  L.  Ed.  234  (1817)],  It  was  held 
by  this  court  that  a  treaty  with  France  gave  to  her  citizens  the  right  to  pur- 
chase and  hold  land  in  the  United  States,  removed  the  incapacity  of  alienage 
and  placed  them  in  precisely  the  same  situation  as  if  they  had  been  citizens 
of  this  country.  The  State  law  was  hardly  adverted  to,  and  seems  not  to 
have  been  considered  a  factor  of  any  importance  in  this  view  of  the  case. 
The  same  doctrine  was  reaffirmed  touching  this  treaty  in  Carneal  v.  Banks, 


458  RIGHTS  AND   DUTIES  OF   NATIONS   IN   TIME   OF  PEACE       (Part  1 

II.  To  the:  Statutes  of  States,  Parties  Thereto 

FOSTER  et  al.  v.  NEILSON. 
(Supreme  Court  of  the  United  States,  1829.    2  Pet.  253,  7  L,  Ed.  415.) 
See  ante,  p.  429,  for  a  report  of  the  case. 


WHITNEY  V.  ROBERTSON. 

(Supreme  Court  of  the  United  States,  1888.     124  U.  S.  190,  8  Sup.  Ct.  456, 

31L.  Ed.  386.) 

This  was  an  action  to  recover  back  duties  alleged  to  have  been  il- 
legally exacted.  Verdict  for  the  defendant  and  judgment  on  the  ver- 
dict.   The  plaintiffs  sued  out  this  writ  of  error. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

The  plaintiffs  are  merchants,  doing  business  in  the  city  of  New 
York,  and  in  August,  1882,  they  imported  a  large  quantity  of  "cen- 
trifugal and  molasses  sugars,"  the  produce  and  manufacture  of  the 
island  of  San  Domingo.  These  goods  were  similar  in  kind  to  sugars 
produced  in  the  Hawaiian  Islands,  which  are  admitted  free  of  duty 
under  the  treaty  with  the  king  of  those  islands,  and  the  act  of  Con- 
gress, passed  to  carry  the  treaty  into  effect.    They  were  duly  entered 

10  Wheat.  181  [6  L.  Ed.  297  (1825)],  and  with  respect  to  the  British  treaty  of 
1794,  in  Hughes  v.  Edwards,  9  Wheat.  489  [6  L.  Ed.  142  (1824)].  A  treaty 
stipulation  may  be  effectual  to  protect  the  land  of  an  alien  from  forfeiture  by 
escheat  under  the  laws  of  a  State.  Orr  v.  Hodgeson,  4  Wheat.  453  [4  L.  Ed. 
613  (1819)].  By  the  British  treaty  of  1794,  'all  impediment  of  alienage  was 
absolutely  levelled  with  the  ground  despite  the  laws  of  the  States.  It  is  the 
direct  constitutional  question  in  its  fullest  conditions.  Yet  the  Supreme  Court 
held  that  the  stipulation  was  within  the  constitutional  powers  of  the  Union. 
Fairfax's  Devisees  v.  Hunter's  Lessee,  7  Cranch,  G27  [3  L.  Ed.  453  (1813)]  see 
Ware  v.  Hylton,  3  Dall.  242  [1  L.  Ed.  568  (1796)].'  8  Op.  Attys.  Gen.  417. 
Mr.  Calhoun,  after  laying  down  certain  exceptions  and  qualifications  which 
do  not  affect  this  case,  says :  'Within  these  limits  all  questions  which  may 
arise  between  us  and  other  powers,  be  the  subject-matter  what  it  may,  fall 
within  the  treaty-making  power  and  may  be  adjusted  by  it.'  Treaties  on  the 
Const,  and  'Gov.  of  the  U.  S.  204. 

"If  the  national  government  has  not  the  power  to  do  what  is  done  by  such 
treaties,  it  cannot  be  done  at  all  for  the  States  are  expressly  forbidden  to 
'enter  into  any  treaty,  alliance,  or  confederation.'    Const,  art.  1,  §  10. 

"It  must  always  be  borne  in  mind  that  the  Constitution,  laws,  and  treaties 
of  the  United  States  are  as  much  a  part  of  the  law  of  every  State  as  its  own 
local  laws  and  constitution.  This  is  a  fundamental  principle  in  our  system  of 
complex  national  polity.  See,  also.  Shanks  v.  Dupont,  3  Pet.  242  [7  L.  Ed. 
666  (1830)]  ;  Foster  &  Elam  v.  Neilson,  2  Pet.  253  [7  L.  Ed.  415  (1829)]  ; 
The  Cherokee  Tobacco,  11  Wall.  616  [20  L.  Ed.  227  (1870)]  ;  Mr.  Pinkney's 
Speech,  3  Elliot's  Constitutional  Debates,  231;  People  v.  Gerke  &  Clark„  5 
Cal.  381  [1855]. 

"We  have  no  doubt  that  this  treaty  is  within  the  treaty-making  power  con- 
ferred by  the  Constitution.  And  it  is  our  duty  to  give  it  full  effect."  Per  Mr. 
Justice  Swayne  in  Hauenstein  v.  Lynham,  100  U.  S.  483,  488-490,  25  L.  Ed.  628 
(1879). 


Ch.  5)  TREATIES  459 

at  the  custom  house  at  the  port  of  New  York,  the  plaintiffs  claiming 
that  by  the  treaty  with  the  republic  of  San  Domingo  the  goods  should 
be  admitted  on  the  same  terms,  that  is,  free  of  duty,  as  similar  articles, 
the  produce  and  manufacture  of  the  Hawaiian  Islands.  The  defend- 
ant, who  was  at  the  time  collector  of  the  port,  refused  to  allow  this 
claim,  treated  the  goods  as  dutiable  articles  under  the  acts  of  Congress, 
and  exacted  duties  on  them  to  the  amount  of  $21,936.  The  plaintiffs 
appealed  from  the  collector's  decision  to  the  Secretary  of  the  Treasury, 
by  whom  the  appeal  was  denied.  They  then  paid  under  protest  the 
duties  exacted,  and  brought  the  present  action  to  recover  the  amount. 

The  complaint  set  forth  the  facts  as  to  the  importation  of  the  goods, 
the  claim  of  the  plaintiffs  that  they  should  be  admitted  free  of  duty 
because  like  articles  f rom  Ihe  Hawaiian  Islands  were  thus  admitted, 
the  refusal  of  the  collector  to  allow  the  claim,  the  appeal  from  his 
decision  to  the  Secretary  of  the  Treasury  and  its  denial  by  him,  and 
the  payment  under  protest  of  the  duties  exacted,  and  concluded  with 
a  prayer  for  judgment  for  the  amount.  The  defendant  demurred  to 
the  complaint,  the  demurrer  was  sustained,  and  final  judgment  was 
entered  in  his  favor,  to  review  which  the  case  is  brought  here. 

The  treaty  with  the  king  of  the  Hawaiian  Islands  provides  for  the 
importation  into  the  United  States,  free  of  duty,  of  various  articles, 
the  produce  and  manufacture  of  those  islands,  in  consideration,  among 
other  things,  of  like  exemption  from  duty,  on  the  importation  into 
that  country,  of  sundry  specified  articles  which  are  the  produce  and 
manufacture  of  the  United  States.  19  Stat.  200,  625.  The  language  of 
the  first  two  articles  of  the  treaty,  which  recite  the  reciprocal  engage- 
ments of  the  two  countries,  declares  that  they  are  made  in  considera- 
tion "of  the  rights  and  privileges"  and  "as  an  equivalent  therefor," 
which  one  concedes  to  the  other. 

The  plaintiffs  rely  for  a  like  exemption  of  the  sugars  imported  by 
them  from  San  Domingo  upon  the  9th  article  of  the  treaty  with  the 
Dominican  Republic,  which  is  as  follows :  "No  higher  or  other  duty 
shall  be  imposed  on  the  importation  into  the  United  States  of  any 
article  the  growth,  produce,  or  manufacture  of  the  Dominican  Repub- 
lic, or  of  her  fisheries;  and  no  higher  or  other  duty  shall  be  imposed 
on  the  importation  into  the  Dominican  Republic  of  any  article  the 
growth,  produce,  or  manufacture  of  the  United  States,  or  their  fish- 
eries, than  are  or  shall  be  payable  on  the  like  articles  the  growth, 
produce,  or  manufacture  of  any  other  foreign  country,  or  its  fisher- 
ies."   15  Stat.  473,  478. 

In  Bartram  v.  Robertson  (decided  at  the  last  term)  122  U.  S.  116,  7 
Sup,  Ct.  1115,  30  L.  Ed.  1118,  we  held  that  brown  and  unrefined  su- 
gars, the  produce  and  manufacture  of  the  island  of  St.  Croix,  which  is 
part  of  the  dominions  of  the  King  of  Denmark,  were  not  exempt  from, 
duty  by  force  of  the  treaty  with  that  country,  because  similar  goods 
from  the  Hawaiian  Islands  were  thus  exempt.    The  first  article  of  the 


460  EIGHTS  AND   DUTIES  OF   NATION'S   IN  TIME   OF   PEACE       (Part  1 

treaty  with  Denmark  provided  that  the  contracting  parties  should  not 
grant  "any  particular  favor"  to  other  nations  in  respect  to  commerce 
and  navigation,  which  should  not  immediately  become  common  to  the 
other  party,  who  should  "enjoy  the  same  freely  if  the  concession  were 
freely  made,  and  upon  allowing  the  same  compensation  if  the  conces- 
sion were  conditional."  8  Stat.  340.  The  fourth  article  provided  that 
no  "higher  or  other  duties"  should  be  imposed  by  either  party  on  the 
importation  of  any  article  which  is  its  produce  or  manufacture,  into 
the  country  of  the  other  party,  than  is  payable  on  like,  articles,  being 
the  produce  or  manufacture  of  any  other  foreign  country.  And  we 
held  in  the  case  mentioned  that  "those  stipulations,  even  if  conceded 
to  be  self -executing  by  the  way  of  a  proviso  or  exception  to  the  gen- 
eral law  imposing  the  duties,  do  not  cover  concessions  like  those 
made  to  the  Hawaiian  Islands  for  a  valuable  consideration.  They 
were  pledges  of  the  two  contracting  parties,  the  United  States  and 
the  King  of  Denmark,  to  each  other,  that  in  the  imposition  of  duties 
on  goods  imported  into  one  of  the  countries  which  were  the  produce 
or  manufacture  of  the  other,  there  should  be  no  discrimination  against 
them  in  favor  of  goods  of  like  character  imported  from  any  other 
country.  They  imposed  an  obligation  upon  both  countries  to  avoid 
hostile  legislation  in  that  respect.  But  they  were  not  intended  to 
interfere  with  special  arrangements  with  other  countries  founded 
upon  a  concession  of  special  privileges." 

The  counsel  for  the  plaintiffs  meet  this  position  by  pointing  to  the 
omission  in  the  treaty  with  the  Republic  of  San  Domingo  of  the  pro- 
vision as  to  free  concessions,  and  concessions  upon  compensation, 
contending  that  the  omission  precludes  any  concession  in  respect  of 
commerce  and  navigation  by  our  government  to  another  country,  with- 
out that  concession  being  at  once  extended  to  San  Domingo.  We  do 
not  think  that  the  absence  of  this  provision  changes  the  obligations 
of  the  United  States.  The  9th  article  of  the  treaty  with  that  repub- 
lic, in  the  clause  quoted,  is  substantially  like  the  4th  article  in  the 
treaty  with  the  King  of  Denmark.  And  as  we  said  of  the  latter,  we 
may  say  of  the  former,  that  it  is  a  pledge  of  the  contracting  parties 
that  there  shall  be  no  discriminating  legislation  against  the  importa- 
tion of  articles  which  are  the  growth,  produce,  or  manufacture  of 
their  respective  countries,  in  favor  of  articles  of  like  character,  im- 
ported from  any  other  country.  It  has  no  greater  extent.  It  was 
never  designed  to  prevent  special  concessions,  upon  sufficient  considera- 
tions, touching  the  importation  of  specific  articles  into  the  country 
of  the  other.  It  would  require  the  clearest  language  to  justify  a  con- 
clusion that  our  government  intended  to  preclude  itself  from  such 
engagements  with  other  countries,  which  might  in  the  future  be  of 
the  highest  importance  to  its  interests. 

But,  independently  of  considerations  of  this  nature,  there  is  another 
and  complete  answer  to  the  pretensions  of  the  plaintiffs.     The  act 


Ch.  5)  TREATIES  461 

of  Congress  under  which  the  duties  were  collected  authorized  their 
exaction.  It  is  of  general  application,  making  no  exception  in  favor 
of  goods  of  any  country.  It  was  passed  after  the  treaty  with  the 
Dominican  Republic,  and,  if  there  be  any  conflict  between  the  stipu- 
lations of  the  treaty  and  the  requirements  of  the  law,  the  latter  must 
control.  A  treaty  is  primarily  a  contract  between  two  or  more  inde- 
pendent nations,  and  is  so  regarded  by  writers  on  public  law.  For 
the  infraction  of  its  provisions  a  remedy  must  be  sought  by  the  in- 
jured party  through  reclamations  upon  the  other.  When  the  stipu- 
lations are  not  self-executing  they  can  only  be  enforced  pursuant  to 
legislation  to  carry  them  into  effect,  and  such  legislation  is  as  much 
subject  to  modification  and  repeal  by  Congress  as  legislation  upon 
any  other  subject.  If  the  treaty  contains  stipulations  which  are 
self-executing,  that  is,  require  no  legislation  to  make  them  opera- 
tive, to  that  extent  they  have  the  force  and  effect  of  a  legislative 
enactment.  Congress  may  modify  such  provisions,  so  far  as  they 
bind  the  United  States,  or  supersede  them  altogether.  By  the  Con- 
stitution a  treaty  is  placed  on  the  same  footing,  and  made  of  like 
obligation,  with  an  act  of  legislation.  Both  are  declared  by  that 
instrument  to  be  the  supreme  law  of  the  land,  and  no  superior  efficacy, 
is  given  to  either  over  the  other.  When  the  two  relate  to  the  same 
subject,  the  courts  will  always  endeavor  to  construe  them  so  as  to 
give  effect  to  both,  if  that  can  be  done  without  violating  the  language 
of  either;  but  if  the  two  are  inconsistent,  the  one  last  in  date  will 
control  the  other,  provided  always  the  stipulation  of  the  treaty  on 
the  subject  is  self-executing.  If  the  country  with  which  the  treaty 
is  made  is  dissatisfied  with  the  action  of  the  legislative  department, 
it  may  present  its  complaint  to  the  executive  head  of  the  government, 
and  take  such  other  measures  as  it  may  deem  essential  for  the  protec- 
tion of  its  interests.  The  courts  can  afford  no  redress.  Whether  the, 
complaining  nation  has  just  cause  of  complaint,  or  our  country  was 
justified  in  its  legislation,  are  not  matters  for  judicial  cognizance. 
In  Taylor  v.  Morton,  2  Curt.  454,  459,  Fed.  Cas.  No.  13,799,  this  sub- 
ject was  very  elaborately  considered  at  the  circuit  by  Mr.  Justice  Curtis, 
of  this  court,  and  he  held  that  whether  a  treaty  with  a  foreign  sovereign 
had  been  violated  by  him ;  whether  the  consideration  of  a  particular 
stipulation  of  the  treaty  had  been  voluntarily  withdrawn  by  one  party 
so  that  it  was  no  longer  obligatory  on  the  other;  whether  the  views  and 
acts  of  a  foreign  sovereign  had  given  just  occasion  to  the  legislative 
department  of  our  government  to  withhold  the  execution  of  a  promise 
contained  in  a  treaty,  or  to  act  in  direct  contravention  of  such  prom- 
ise, were  not  judicial  questions;  that  the  power  to  determine  these 
matters  had  not  been  cpnfided  to  the  judiciary,  which  has  no  suitable 
means  to  exercise  it,  but  to  the  executive  and  legislative  departments 
of  our  government ;  and  that  they  belong  to  diplomacy  and  legislation, 
and  not  to  the  administration  of  the  laws.     And  he  justly  observed. 


462  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

as  a  necessary  consequence  of  these  views,  that  if  the  power  to  de- 
termine these  matters  is  vested  in  Congress,  it  is  wholly  immaterial 
to  inquire  whether  by  the  act  assailed  it  has  departed  from  the  treaty 
or  not,  or  whether  such  departure  was  by  accident  or  design,  and,  if 
the  latter,  whether  the  reasons  were  good  or  bad. 

In  these  views  we  fully  concur.  It  follows,  therefore,  that  when 
a  law  is  clear  in  its  provisions,  its  validity  cannot  be  assailed  before 
the  courts  for  want  of  conformity  to  stipulations  of  a  previous  treaty 
not  already  executed.  Considerations  of  that  character  belong  to 
another  department  of  the  government.  The  duty  of  the  courts  is 
to  construe  and  give  effect  to  the  latest  expression  of  the  sovereign 
will.  In  Head  Money  Cases,  112  U.  S.  580,  5  Sup.  Ct.  247,  28  L.  Ed. 
798,  it  was  objected  to  an  act  of  Congress  that  it  violated  provisions 
contained  in  treaties  with  foreign  nations,  but  the  court  repHed  that 
so  far  as  the  provisions  of  the  act  were  in  conflict  with  any  treaty,  they 
must  prevail  in  all  the  courts  of  the  country;  and,  after  a  full  and 
elaborate  consideration  of  the  subject,  it  held  that  ''so  far  as  a  treaty 
made  by  the  United  States  with  any  foreign  nation  can  be  the  subject 
of  judicial  cognizance  in  the  courts  of  this  country,  it  is  subject  to  such 
acts  as  Congress  may  pass  for  its  enforcement,  modification,  or  repeal." 

Judgment  affirmed.^® 

1^  The  doctrine  of  Mr.  Justice  Curtis  in  Taylor  v.  Morton,  Circuit  Court, 
District  of  Massachusetts,  2  Curt.  454,  Fed.  Cas.  No.  13,799  (1855),  is  un- 
answerable. 

The  officials  of  a  nation  must,  in  the  absence  of  legislation  to  the  con- 
trary, follow  the  last  expression  of  the  will  of  the  legislature  controlling  the 
subject-matter  and  procedure  of  the  case  before  them.  The  international  ob- 
ligation, however,  is  not  affected  by  the  national  act,  unless  the  foreign  na- 
tion chooses  to  renounce  the  right  or  privilege  to  which  it  would  be  entitled 
under  the  treaty  if  the  act  had  not  been  passed. 

This  point  was  not  overlooked  by  Mr.  Justice  Curtis,  and  he  recognized  the 
right  of  a  foreign  nation  to  prosecute  its  claim  through  the  channels  of 
diplomacy  or  through  what  is  commonly  called  the  last  resort  of  princes. 

In  Botiller  v.  Dominguez,  130  U.  S.  238.  247,  9  Sup.  Ct.  525,  32  K  Ed.  926 
(1889),  it  is  said:  "With  regard  to  the  first  of  these  propositions  it  may  be 
said,  that  so  far  as  the  act  of  Congress  is  in  conflict  with  the  treaty  with  Mexi- 
co, that  Js  a  matter  in  which  the  court  is  bound  to  follow  the  statutory  enact- 
ments of  its  own  government.  If  the  treaty  was  violated  by  this  general  stat- 
ute, enacted  for  the  purpose  of  ascertaining  the  validity  of  claims  derived 
from  the  Mexican  Government,  it  was  a  matter  of  international  concern,  which 
the  two  states  must  determine  by  treaty,  or  by  such  other  means  as  enables 
one  state  to  enforce  upon  another  the  obligations  of  a  treaty.  This  court  in 
a  class  of  cases  like  the  present  has  no  power  to  set  itself  up  as  the  instrumen- 
tality for  enforcing  the  provisions  of  a  treaty  with  a  foreign  nation  which  the 
government  of  the  United  States,  as  a  sovereign  power,  chooses  to  disregard. 
The  Cherokee  Tobacco,  11  Wall.  616  [11  L.  Ed.  227  (1870)]  ;  Taylor  v.  Mor- 
ton, 2  Curtis.  4.54  [Fed.  Cas.  No.  13,799  (1855)]  ;  Head  Money  Cases,  112  U. 
S.  580.  598  [5  Sup.  Ct.  247,  28  L.  Ed.  798  (1884)]  ;  Whitney  v.  Robertson,  124 
U.  S.  190,  195  [8  Sup.  Ct.  456,  31  L.  Ed.  386  (1888)]." 


Ch.  5)  .  TREATIES  463 

III.  To  the;  Judiciary  of  the  States,  Parties  Thereto 

WALKER  V.  BAIRD  et  al. 
(Privy  Council.     [1S02]   App.  Cas.  491.) 

Appeal  from  an  order  of  the  Supreme  Court  (March  18,  1891),  to 
the  effect  that  the  appellant's  defence  did  not  disclose  a  sufficient  an- 
swer to  the  respondents'  action. 

The  statement  of  claim  and  defence  are  set  out  in  their  Lordships' 
judgment. 

The  judgment  of  the  court  below  was  that,  in  an  action  of  this  de- 
scription, to  which  the  parties  are  British  subjects,  for  a  trespass  com- 
mitted within  British  territory  in  time  of  peace,  it  is  no  sufficient  an- 
swer to  say,  in  exclusion  of  the  jurisdiction  of  the  municipal  courts, 
that  the  trespass  was  an  "act  of  state"  committed  under  the  authority 
of  an  agreement  or  modus  vivendi  with  a  foreign  power ;  and  that  in 
such  a  case,  as  between  the  Queen's  subjects,  the  question  of  the 
validity,  interpretation,  and  effect  of  all  instruments  and  evidences  of 
title  and  authori1;y  rest  in  the  first  place  with  the  courts  of  competent 
jurisdiction  within  which  the  cause  of  action  arises. 

The  judgment  of  their  Lordships  was  delivered  by  Lord  Herschell: 

This  is  an  appeal  from  an  order  of  the  Supreme  Court  of  Newfound- 
land. The  respondents  by  their  statement  of  claim  alleged  that  the 
appellant  wrongfully  entered  their  messuage  and  premises,  and  took 
possession  of  their  lobster  factory  and  of  the  gear  and  implements 
therein,  and  kept  possession  of  the  same  for  a  long  time,  and  prevented 
the  respondents  from  carrying  on  the  business  of  catching  and  pre- 
serving lobsters  at  their  factory. 

By  the  statement  of  defence  the  appellant  said  that  he  was  captain  of 
H.  M.  S.  Emerald,  and  the  senior  officer  of  the  ships  of  Her  Majesty 
the  Queen  employed  during  the  current  season  on  the  Newfoundland 
fisheries ;  that  to  him,  as  such  senior  officer  and  captain,  was  committed 
by  the  Lords  Commissioners  of  the  Admiralty,  by  command  of  Her 
Majesty,  the  care  and  charge  of  putting  in  force  and  giving  effect  to  an 
agreement  embodied  in  a  modus  vivendi  for  the  lobster  fishing  in  New- 
foundland during  the  said  season,  which  as  an  act  and  matter  of  state 
and  public  policy  had  been  by  Her  Majesty  entered  into  with  the  gov- 
ernment of  the  Republic  of  France ;  that  the  said  agreement  provided, 
amongst  other  things,  that  on  the  coasts  of  Newfoundland  where  the 
French  enjoy  rights  of  fishing  conferred  by  the  treaties,  no  lobster  fac- 
tories which  were  not  in  operation  on  the  1st  of  July,  1889,  should 
be  permitted,  unless  by  the  joint  consent  of  the  commanders  of  the 
British  and  French  naval  stations ;  that  the  said  lobster  factory  of 
the  plaintiff's  being  situate  on  the  said  part  of  the  coasts  of  Newfound- 
land, and  being  one  that  was  not  in  operation  on  the  said  1st  of  July, 


•4G4  RIGHTS  AND   DUTIES  OF  NATIONS   IN   TIME  OF  PEACE       (Part  1 

1889,  and  one  which  was  without  the  consent  aforesaid  being  used  and 
worked  by  the  plaintiffs  as  a  lobster  factory  whilst  the  said  agreement 
was  in  force,  and  such  use  and  working  thereof  being  prohibited  by  the 
said  agreement  and  in  contravention  of  its  terms,  the  defendant  in  per- 
formance of  his  duties  did  for  the  cause  assigned  enter  into  and  take 
possession  of  the  messuage  and  premises  in  the  statement  of  claim 
mentioned,  and  of  certain  gear  and  implements;  that  such  entry  into 
and  taking  possession  of  the  said  messuage  and  premises,  gear,  and 
implements,  were  made  and  done  by  the  defendant  in  his  public  political 
capacity,  and  in  exercise  of  the  powers  and  authorities,  and  in  per- 
formance of  the  duties  committed  to  him,  and  were  acts  and  matters  of 
state  done  and  performed  under  the  provisions  of  the  said  modus 
vivendi ;  that  the  action  taken  by  the  defendant  in  putting  in  force  the 
provisions  of  the  said  modus  vivendi  had  with  full  knowledge  of  all 
the  circumstances  and  events  been  approved  and  confirmed  by  Her 
Majesty  as  such  act  and  matter  of  state  and  public  policy,  and  as 
being  in  accordance  with  the  instructions  of  Her  Majesty's  govern- 
ment. The  defendant  submitted  that  the  matters  set  forth  in  his  an- 
swer to  the  statement  of  claim,  and  on  which  he  rested  his  right  to 
enter  and  take  possession  of  the  premises,  were  acts  and  matters  of 
state  arising  out  of  the  political  relations  between  Her  Majesty  the 
Queen  and  the  government  of  the  Republic  of  France,  that  they  in- 
volved the  construction  of  treaties  and  of  the  said  modus  vivendi  and 
other  acts  of  state,  and  were  matters  which  could  not  be  inquired  into 
by  the  court. 

The  plaintiffs  objected  that  the  defence  did  not  set  forth  any  answer 
or  ground  of  defence  to  the  action,  and  it  was  ordered  by  the  court  that 
the  points  of  law  should  be  first  disposed  of.  The  Supreme  Court 
of  Newfoundland,  after  hearing  argument,  held  that  the  statement  of 
defence  disclosed  no  answer  to  the  plaintiffs'  claim,  but  gave  the  defend- 
ant leave  to  amend. 

In  their  Lordships'  opinion  this  judgment  was  clearly  right,  unless 
the  defendant's  acts  can  be  justified  on  the  ground  that  they  were 
done  by  the  authority  of  the  Crown  for  the  purpose  of  enforcing 
obedience  to  a  treaty  or  agreement  entered  into  between  Her  Majesty 
and  a  foreign  power.  The  suggestion  that  they  can  be  justified  as  acts 
of  state,  or  that  the  court  was  not  competent  to  inquire  into  a  matter 
involving  the  construction  of  treaties  and  other  acts  of  state,  is  wholly 
untenable. 

The  learned  Attorney  General,  who  argued  the  case  before  their 
Lordships  on  behalf  of  the  appellant,  conceded  that  he  could  not  main- 
tain the  proposition  that  the  Crown  could  sanction  an  invasion  by  its 
officers  of  the  rights  of  private  individuals  whenever  it  was  necessary 
in  order  to  compel  obedience  to  the  provisions  of  a  treaty.  The  propo- 
sition he  contended  for  was  a  more  limited  one.  The  power  of  mak- 
ing treaties  of  peace  is.  as  he  truly  said,  vested  by  our  constitution  in 


^ 


Ch.  5)  .  TREATIES  465 

the  Crown.  He  urged  that  there  must  of  necessity  also  reside  in  the 
Crown  the  power  of  compelHng  its  subjects  to  obey  the  provisions  of 
a  treaty  arrived  at  for  the  purpose  of  putting  an  end  to  a  state  of 
war.  He  further  contended  that  if  this  be  so,  the  power  must  equally 
extend  to  the  provisions  of  a  treaty  having  for  its  object  the  preserva- 
tion of  peace,  that  an  agreement  which  was  arrived  at  to  avert  a  war 
which  was  imminent  was  akin  to  a  treaty  of  peace,  and  subject  to  the 
same  constitutional  law.  Whether  the  power  contended  for  does  exist 
in  the  case  of  treaties  of  peace,  and  whether  if  so  it  exists  equally  in  the 
case  of  treaties  akin  to  a  treaty  of  peace,  or  whether  in  both  or  either 
of  these  cases  interference  with  private  rights  can  be  authorized  other- 
wise than  by  the  legislature,  are  grave  questions  upon  which  their  Lord- 
ships do  not  find  it  necessary  to  express  an  opinion.  Their  Lordships 
agree  with  the  court  below  in  thinking  that  the  allegations  contained 
in  the  statement  of  defence  do  not  bring  the  case  within  the  limits  of 
the  proposition  for  which  alone  the  appellant's  counsel  contended. 

Their  Lordships  will  therefore  humbly  advise  Her  Majesty  that  the 
appeal  should  be  dismissed  with  costs. 


UNITED  STATES  v.  THE  PEGGY. 

(Supreme  Court  of  the  United  States,  ISOl.    1  Cranch,  103,  2  L.  Ed.  49.)" 

Error  to  the  Circuit  Court  for  the  District  of  Connecticut,  on  a  ques- 
tion of  prize. 

The  facts  found  and  stated  by  Judge  Law.  the  District  Judge,  were 
as  follows : 

"That  the  ship  Trumbull,  duly  commissioned  by  the  President  of 
the  United  States,  with  instructions  to  take  any  armed  French  vessel 
or  vessels  sailing  under  authority,  or  pretence  of  authority  from  the 
French  republic,  which  shall  be  found  within  the  jurisdictional  limits  of 
the  United  States,  or  elsewhere  on  the  high  seas,  &c.  as  set  forth  in  said 
instructions;  and  said  ship  did  on  the  24th  day  of  April  last  (April 
1800)  capture  the  schooner  Peggy,  after  running  her  ashore  a  few  miles 
to  the  westward  of  Port  au  Prince,  within  the  dominions  and  territory 
of  General  Toussaint,  and  has  brought  her  into  port  as  set  forth  in  the 
libel,  and  it  further  appears  that  all  the  facts,  contained  in  the  claim,  are 
true;^*  whereupon  this  court  are  of  opinion  that  as  it  appears  that 

^■^  The  statement  of  facts  is  abridged. 

18  The  material  facts  stated  in  the  claim  are.  that  the  schooner  was  the 
property  of  citizens  of  the  French  republic;  that  she  was  permitted  by  Tous- 
saint to  receive  on  board  the  cargo,  which  was  on  board  at  the  time  of  cap- 
ture ;  that  she  had  dispatches  from  Toussaint  to  France ;  that  she  sailed  by 
his  authority,  on  the  23d  of  April,  for  France,  navigated  by  ten  men,  including 
Kuisson,  the  claimant,  and  Gillibert,  the  commander,  and  having  on  board  four 

Scott  Int. Law  —30 


466  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   PEACE       (Part  1 

the  said  schooner  was  solely  upon  a  trading  voyage  and  sailed  under  the 
permission  of  Toussaint  with  dispatches  for  the  French  government, 
under  a  convoy  furnished  by  Toussaint,  with  directions  to  touch  at 
Leogane  for  supplies,  and  that  the  arms  she  had  on  board  must  be  pre- 
sumed to  be  only  for  self  defence ;  neither  does  it  appear  she  had  ever 
made,  or  attempted  to  make,  any  depredations,  and  that  she  was  not 
such  an  armed  vessel  as  was  meant  and  intended  by  the  laws  of  the 
United  States  should  be  subject  to  capture  and  ^condemnation ;  and 
that  the  situation  she  was  in,  at  the  time  of  capture,  being  aground 
within  the  territory  and  jurisdiction  of  Toussaint,  she  was  not  on  the 
high  seas,  so  as  to  be  intended  to  be  within  the  instructions  given  to  the 
commanders  of  American  ships  of  war:  Therefore,  adjudge  said 
schooner  is  not  a  lawful  prize,  and  decree  that  said  schooner  with  her 
cargo  be  restored  to  claimant."     *     *     * 

The  Chief  Justice;  [Marshall]  delivered  the  opinion  of  the  court. 

In  this  case  the  court  is  of  opinion  that  the  schooner  Peggy  is  within 
the  provisions  of  the  treaty  entered  into  with  France  and  ought  to  be 
restored.  This  vessel  is  not  considered  as  being  definitely  condemned. 
The  argument  at  the  bar  which  contends  that  because  the  sentence  of 
the  circuit  court  is  denominated  a  final  sentence,  therefore  its  condemna- 
tion is  definitive  in  the  sense  in  which  that  term  is  used  in  the  treaty, 
is  not  deemed  a  correct  argument.  A  decree  or  sentence  may  be  inter- 
locutory or  final  in  the  court  which  pronounces  it,  and  receives 
its  appellation  from  its  determining  the  power  of  that  particular 
court  over  the  subject  to  which  it  applies,  or  being  only  an  inter- 
mediate order  subject  to  the  future  control  of  the  same  court.  The  last 
decree  of  an  inferior  court  is  final  in  relation  to  the  power  of  that  court, 
but  not  in  relation  to  the  property  itself,  unless  it  be  acquiesced  under. 
The  terms  used  in  the  treaty  seem  to  apply  to  the  actual  condition  of 
the  property  and  to  direct  a  restoration  of  that  which  is  still  in  con- 
troversy between  the  parties.  On  any  other  construction  the  word 
definitive  would  be  rendered  useless  and  inoperative.  Vessels  are 
seldom  if  ever  condemned  but  by  a  final  sentence.  An  interlocutory  or- 
der for  a  sale  is  not  a  condemnation.  A  stipulation  then  for  the  restora- 
tion of  vessels  not  yet  condemned,  would  on  this  construction  com- 
prehend as  many  cases  as  a  stipulation  for  the  restoration  of  such  as 

small  three-pound  carriage  guns,  solely  for  defence  against  piratical  as- 
saults, and  being  under  convoy  of  a  tender,  furnished  by  Toussaint :  that  on 
the  23d  of  April,  she  was  run  ashore,  a  few  miles  to  the  westward  of  Port 
au  Prince,  within  the  dominion,  jurisdiction  and  territory  of  General  Tous- 
saint. so  that  she  was  fast  and  tight  aground,  at  which  time,  and  in  which 
situation,  the  boats  and  crew  of  the  Trumbull  attacked  and  took  possession 
of  her,  and  got  her  off;  that  Toussaint  then  was,  and  still  is,  on  terms  of 
amity,  commerce  and  friendship  with  the  United  States,  duly  entered  into 
and  ratified  by  treaty;  that  the  schooner  was  on  a  lawful  voyage,  for  the 
sole  purpose  of  trade,  and  not  commissioned,  or  in  a  condition  to  annoy  or  in- 
jure the  trade  or  commerce  of  the  United  States. 

Scott  Int.Law 


Ch,  5)  TREATIES  467 

are  not  yet  definitively  condemned.  Every  condemnation  is  final  as  to 
the  court  which  pronounces  it,  and  no  other  difference  is  perceived 
between  a.  condemnation,  and  a  final  condemnation,  than  that  the  one 
terminates  definitively  the  controversy  between  the  parties  and  the  other 
leaves  that  controversy  still  depending.  In  this  case  the  sentence  of 
condemnation  was  appealed  from,  it  might  have  been  reversed  and 
therefore  was  not  such  a  sentence  as  in  the  contemplation  of  the 
contracting  parties,  on  a  fair  and  honest  construction  of  the  contract 
was  designated  as  a  definitive  condemnation. 

It  has  been  urged  that  the  court  can  take  no  notice  of  the  stipulation 
for  the  restoration  of  property  not  yet  definitively  condemned,  that 
the  judges  can  only  enquire  whether  the  sentence  was  erroneous  when 
delivered,  and  that  if  the  judgment  was  correct  it  cannot  be  made  other- 
wise by  any  thing  subsequent  to  its  rendition. 

The  constitution  of  the  United  States  (article  6)  declares  a  treaty  to 
be  the  supreme  law  of  the  land.  Of  consequence  its  obligation  on  the 
courts  of  the  United  States  must  be  admitted.  It  is  certainly  true  that 
the  execution  of  a  contract  between  nations  is  to  be  demanded  from, 
and,  in  the  general,  superintended  by  the  executive  of  each  nation,  and 
therefore,  whatever  the  decision  of  this  court  may  be  relative  to  the 
rights  of  parties  litigating  before  it,  the  claim  upon  the  nation,  if  un- 
satisfied, may  still  be  asserted.  But  yet  where  a  treaty  is  the  law  of  the 
land,  and  as  such  affects  the  rights  of  parties  litigating  in  court,  that 
treaty  as  much  binds  those  rights  and  is  as  much  to  be  regarded  by  the 
court  as  an  act  of  congress ;  and  although  restoration  may  be  an  execu- 
tive, when  viewed  as  a  substantive,  act  independent  of,  and  unconnected 
with,  other  circumstances,  yet  to  condemn  a  vessel,  the  restoration  of 
which  is  directed  by  a  law  of  the  land,  would  be  a  direct  infraction  of 
that  law,  and,  of  consequence,  improper. 

It  is  in  general  true  that  the  province  of  an  appellate  court  is  only 
to  enquire  whether  a  judgment  when  rendered  was  erroneous  or  not. 
But  if  subsequent  to  the  judgment  and  before  the  decision  of  the  ap- 
pellate court,  a  law  intervenes  and  positively  changes  the  rule  which 
governs,  the  law  must  be  obeyed,  or  its  obligation  denied.  If  the  law 
be  constitutional,  and  of  that  no  doubt  in  the  present  case  has  been 
expressed,  I  know  of  no  court  which  can  contest  its  obligation.  It  is 
true  that  in  mere  private  cases  between  individuals,  a  court  will  and 
ought  to  struggle  hard  against  a  construction  which  will,  by  a  retrospec- 
tive operation,  affect  the  rights  of  parties,  but  in  great  national  concerns 
where  individual  rights,  acquired  by  war,  are  sacrificed  for  national 
purposes,  the  contract  making  the  sacrifice,  ought  always  to  receive  a 
construction  conforming  to  its  manifest  import;  and  if  the  nation  has 
given  up  the  vested  rights  of  its  citizens,  it  is  not  for  the  court,  but  for 
the  government,  to  consider  whether  it  be  a  case  proper  for  compensa- 
tion.   In  such  a  case  the  court  must  decide  according  to  existing  laws, 


468  RIGHTS  AND   DUTIES  OF  NATIONS  IN  TIME  OF  PEACE       (Part  1 

and  if  it  be  necessary  to  set  aside  a  judgment,  rightful  when  rendered, 
but  which  cannot  be  affirmed  but  in  violation  of  law,  the  judgment  must 
be  set  aside. ^* 


SECTION  5.— EXTINCTION 


-IT 


SUTTON  V.  SUTTON. 

(Court  of  Chancery,  1830.     1  Russ.   &  M.   663.) 

The  Master  of  the  Rolls  [Sir  John  Leach]. ^^  The  relations 
which  had  subsisted  between  Great  Britain  and  America,  when  they 
formed  one  empire,  led  to  the  introduction  of  the  ninth  section  of  the 
treaty  of  1794,  and  made  it  highly  reasonable  that  the  subjects  of  the 
two  parts  of  the  divided  empire  should,  notwithstanding  the  separation, 
be  protected  in  the  mutual  enjoyment  of  their  landed  property;  and. 
the  privileges  of  natives  being  reciprocally  given,  not  only  to  the  actual 
possessors  of  lands,  but  to  their  heirs  and  assigns,  it  is  a  reasonable  con- 
struction that  it  was  the  intention  of  the  treaty  that  the  operation  of  the 
treaty  should  be  permanent,  and  not  depend  upon  the  continuance  of 
a  state  of  peace. 

The  act  of  the  37  G.  3  gives  full  effect  to  this  article  of  the  treaty 
in  the  strongest  and  clearest  terms;  and  if  it  be,  as  I  consider  it,  the 
true  construction  of  this  article,  that  it  was  to  be  permanent,  and  in- 
dependent of  a  state  of  peace  or  war,  then  the  act  of  Parliament  must 
be  held,  in  the  twenty- fourth  section,  to  declare  this  permanency;  and 
when  a  subsequent  section  provides  that  the  act  is  to  continue  in  force 
so  long  only  as  a  state  of  peace  shall  subsist,  it  cannot  be  construed  to 
be  directly  repugnant  and  opposed  to  the  twenty-fourth  section,  but  is 
to  be  understood  as  referring  to  such  provisions  of  the  act  only  as  would 
in  their  nature  depend  upon  a  state  of  peace. 

I  am  of  opinion,  therefore,  in  favour  of  the  title,  and  consider  that 
the  heirs  and  assigns  of  every  American  who  held  lands  in  Great 
Britain  at, the  time  mentioned  in  the  Act  of  the. 37  G.  3,  are,  as  far  as 
regards  those  lands,  to  be  treated,  not  as  aliens,  but  as  native  sub- 
jects.    *     *     *  "^ 

19  In  La  Ninfa,  75  Fed.  513,  21  C.  C.  A.  434  (1896),  it  was  held,  according 
to  the  headnote,  that : 

"An  award  by  arbitrators  under  a  treaty  between  the  United  States  and 
another  nation,  by  which  the  contracting  nations  agree  that  the  decision  of 
the  tribunal  of  arbitration  shall  be  a  final  settlement  of  all  questions  sub- 
mitted, becomes  the  supreme  law  of  the  land,  and  is  as  binding  on  the  courts 
as  an  act  of  Congress.    La  Ninfa  (D.  C.)  49  Fed.  575,  reversed." 

20  The  statement  of  facts  and  part  of  the  opinion  is  omitted. 

The  ninth  article  of  the  Jay  treaty  of  1794  enabled  the  subjects  and  citi- 
zens of  either  country  to  hold  lands  in-the  other  and  to  sell  and  devise  them  as 
if  they  were  natives. 

2 1  This  same  ninth  article  was  previously  considered  in  an  American  case. 
In  Fox  V.  Southack,  1S15,  12  Mass.  143,  148,  Jackson,  J.,  says:    "It  is  not 


Ch.  5)  TREATIES  4G9 

SOCIETY  FOR  PROPAGATION  OF  THE  GOSPEL  IN  FOR- 
EIGN PARTS  V.  TOWN  OF  NEW  HAVEN  et  al. 
(Supreme  Court  of  the  United  States,  1823.    8  Wheat.  464,  5  L.  Ed.  662.) 
See  ante,  p.  93,  for  a  report  of  the  case. 


PROTOCOLS  OF  CONFERENCES  BETWEEN  GREAT  BRIT- 
AIN, AUSTRIA,  FRANCE,  GERMANY,  ITALY,  RUSSIA, 
AND  TURKEY,  RELATIVE  TO  THE  INVIOLABILITY 
OF  TREATIES,  AND  THE  REVISION- O'F  THE  TREATY 
OF  MARCH  30,  1856,  SO  FAR  AS  REGARDS  THE  NEU- 
TRALIZATION OF  THE  BLACK  SEA,  THE  STRAITS 
OF  THE  DARDANELLES  AND  BOSPHORUS,  AND  THE 
NAVIGATION  OF  THE  DANUBE,  1871. 

Annex  to  Protocol  No.  1. 

(61  British  and  Foreign  State  Papers,  1870-1871,  1193,  IIDS,  1199.) 

The  plenipotentiaries  of  the  North  German  Confederation,  Austria- 
Hungary,  Great  Britain,  Italy,  Russia,  and  Ttirkey,  assembled  today 
in  conference,  recognize  that  it  is  an  essential  principle  of  the  law  ot 
nations  that  no  Power  can  liberate  itself  from  the  engagements  of  a 
treaty,  nor  modify  the  stipulations  thereof,  except  as  the  result  of 
the  consent  of  the  contracting  parties,  by  means  of  an  amicable  under- 
standing. 

In  faith  of  which  the  said  plenipotentiaries  have  signed  the  present 
protocol. 

Done  at  London,  this  17th  day  of  January,  1871.** 

necessary  for  the  determination  of  this  cause  to  decide  whether  the  ninth 
article  of  that  treaty  was  annulled  by  the  late  war;  as,  if  it  were  so,  that 
circumstance  would  not  give  any  new  rights  to  the  plaintiff.  There  seems, 
however,  to  be  no  doubt  that  this  article  is  one  of  those  stipulations  which 
are  distinguished  by  some  of  the  writers  on  the  law  of  nations  as  real  in  their 
own  nature,  and  which  are  accomplished  by  the  act  of  ratification,  so  that 
they  cannot  be  dissolved  by  any  subsequent  event.  'Pactum  liboratorium,  quo 
pax  remisso  aut  transactio,  facta  est,  qua  jus  extincttun  reviviscere  non  pro- 
test.'   Commentary  or  H.  Cocceius  on  Grotiiis,  B.  2,  c.  16,  §  16." 

--  France  adhered  to  this  declaration  March  13,  1871. 

By  the  Treaty  of  Paris  of  March  30,  1856,  concluded  between  Great  Britain. 
France,  Austria,  Prussia,  Sai-dinia.  Russia,  and  Turkey,  it  was  provided, 
among  other  things,  that  the  Black  Sea  should  be  neutralized ;  that  its  water.s 
and  ports  were  open  to  the  merchant  marine  of  every  nation,  but  forbidden  to 
vessels  of  war,  not  only  of  the  riparian  States,  but  of  all  other  Powers  (article 
11)  ;  that  neither  Russia  nor  Turkey  should  establish  or  maintain  military 
arsenals  upon  the  coasts  thereof   (article  13). 

These  provisions  were  imposed  upon  Russia  by  its  enemies,  and  were  ex- 
ceedingly galling  to  Russia,  which  took  advantage  of  the  War  of  1870  between 
France,  Prussia  and  the  German  States,  to  declare  itself  freed  from  their 
observance.     Great  Britain  protested  vigorously. 

A  conference  of  representatives  of  the  signatories  of  the  Treaty  of  Paris, 


470  RIGHTS  AND   DUTIES  OF  NATIONS   IN  TIME  OF  PEACE       (Part  1 

HOOPER  V.  UNITED  STATES. 

(United  States  Court  of  Claims,  18S7.    22  Ct.  CI.  40S.) 

Davis,  J.^^  This  court  has  now  delivered  three  opinions  upon  gen- 
eral issues  raised  in  the  French  Spoliations  Cases.  The  first  related  to 
the  broad  questions  as  to  the  validity,  against  France,  of  the  claims  as 
a  class,  and  the  resulting  liabiHty  of  the  United  States  to  the  claimants  ; 
the  second  was  directed  more  especially  to  forms  of  pleading,  the  value 
of  evidence,  and  rights  of  insurers ;  while  the  third  disposed  of  a  mo- 
tion made  by  the  defendants  for  a  rehearing  of  the  general  questions 
discussed  in  the  first  opinion.  Gray,  administrator,  v.  United  States,  21 
Ct.  CI.  340;  Holbrook,  administrator,  v.  United  States,  21  Ct.  CI.  434; 
Cushing,  administrator,  v.  United  States,  22  Ct.  CI.  1, 

A  large  number  of  cases  have  since  been  argued  and  submitted  to 
the  court,  and  certain  general  questions  are  found  raised  in  many  of 
them.  Those  questions  we  shall  now  proceed  to  discuss,  as  well  as  two 
points  which  were  sent  back  by  the  court  for  further  argument. 

It  is  urged  by  the  claimants  that  the  treaties  of  1778  (8  Stat.  6,  12) 
remained  in  force,  notwithstanding  the  abrogating  act  of  July  7,  1798 
(1  Stat.  578),  until  the  final  ratification  of  the  treaty  of  1800  (8  Stat. 
178),  and  that  these  treaties  prescribe  the  rule  by  which  all  the  spolia- 
tion claims  are  to  be  measured.  This  position  is  denied  by  the  govern- 
ment. 

For  the  purpose  of  this  branch  of  the  case,  the  period  of  the  spolia- 
tions may  be  divided  into  two  parts — that  prior  to  July  7,  1798,  and  that 
subsequent  thereto  and  prior  to  the  ratification  of  the  treaty  of  1800. 

As  to  the  first  period,  we  find  the  position  on  both  sides  to  have  been 
consistent,  which  a  few  citations  covering  different  years  will  clearly 
show.     *     *     * 

The  treaties  of  1778,  particularly  the  treaty  of  commerce,  which 
is  the  important  one  for  our  purposes,  were  in  existence  until  the 
passage  of  the  abrogating  act.  Whatever  disputes  occurred  between 
this  country  and  France  during  the  disturbed  period  following  the  con- 
clusion of  the  Jay  Treaty  arose  from  differences  of  interpretation  of 
various  clauses  of  the  Franco-American  Treaty,  and  on  neither  side 
do  we  find  seriously  advanced  a  contention  that  the  treaties  were  not  in 
existence  and  were  not  binding  upon  both  nations.  The  United  States 
distinctly  urged  their  enduring  force,  while  the  French  departed  from 
this  position  only  in  this  (if  it  be  a  departure),  that  the  Jay  Treaty  in- 
troduced a  modification  into  their  treaty  with  us  of  which  they  were 
entitled  to  the  benefit. 


by  the  Treaty  of  London  of  1871  agreed  inter  alia  to  the  obligation  of  these 
articles,  and  annexed  to  the  Treaty  the  protocol  printed  above. 

23  The  statement  of  facts  is  omitted  and  only  so  much  of  the  opinion  is 
given  as  relates  to  annulment  of  treaties. 


Ch.  5)  TREATIES  471 

We  are  of  opinion  that  the  treaties  of  1778,  so  far  as  they  modified 
the  law  of  nations,  constituted  the  rule  by  which  all  differences  between 
the  two  natiojns  were  to  be  measured  after  February  6,  1778,  and  before 
July  7,  1798. 

As  to  the  period  after  July  7,  1798: 

On  that  date  the  abrogating  act  passed  by  the  Congress  was  approved 
by  the  President  and  became  a  law  within  the  jurisdiction  of  the  Con- 
stitution ;  a  law  replacing  to  that  extent  the  treaties,  and  binding  upon 
all  subordinate  agents  of  the  nation,  including  its  courts,  but  riot 
necessarily  final  as  the  annulment  of  an  existing  contract  between  two 
sovereign  powers. 

A  treaty  which  on  its  face  is  of  indefinite  duration,  and  which  con- 
tains no  clause  providing  for  its  termination,  may  be  annulled  by  one 
of  the  parties  under  certain  circumstances.  As  between  the  nations  it 
is  in  its  nature  a  contract,  and  if  the  consideration  fail,  for  example, 
or  if  its  important  provisions  be  broken  by  one  party,  the  other  may, 
at  its  option,  declare  it  terminated.  The  United  States  have  so  held 
in  regard  to  the  Clayton-Bulwer  Treaty,  as  to  which  Mr.  Frelinghuysen, 
then  Secretary  of  State,  wrote  Mr,  Hall,  minister  in  Central  America 
(July  19,  1884): 

"The  Clayton-Bulwer  Treaty  was  voidable  at  the  option  of  the  Unit- 
ed States.  This  I  think,  has  been  demonstrated  fully  upon  two 
grounds.  First,  that  the  consideration  of  the  treaty  having  failed,  its 
object  never  having  been  accomplished,  the  United  States  did  not  re- 
ceive that  for  which  they  covenanted ;  and,  second,  that  Great  Britain 
has  persistently  violated  her  agreement  not  to  colonize  the  Central 
American  coast." 

Here  concur  two  clear  reasons  for  annulment,  failure  of  considera- 
tion and  an  active  breach  of  contract. 

Abrogation  of  a  treaty  may  occur  by  change  of  circumstances,  as: 

"When  a  state  of  things  which  was  the  basis  of  the  treaty,  and  one 
of  its  tacit  conditions,  no  longer  exists.  In  most  of  the  old  treaties 
were  inserted  the  clausula  rebus  sic  stantibus,  by  which  the  treaty 
might  be  construed  as  abrogated  when  material  circumstances  on 
which  it  rested  changed.  To  work  this  effect  it  is  not  necessary 
that  the  facts  alleged  to  have  changed  should  be  material  conditions. 
It  is  enough  if  they  were  strong  inducements  to  the  party  asking 
abrogation. 

"The  maxim  'Conventio  omnis  intelligitur  rebus  sic  stantibus'  is  held 
to  apply  to  all  cases  in  which  the  reason  for  a  treaty  has  failed,  for 
there  has  been  such  a  change  of  circumstances  as  to  make  its  perform- 
ance impracticable  except  at  an  unreasonable  sacrifice."  Wharton's 
Com.  Am.  Law,  §  161. 

"Treaties,  like  other  contracts,  are  violated  when  one  party  neglects 
or  refuses  to  do  that  which  moved  the  other  party  to  engage  in  the 
transaction.     *     *     *     When  a  treaty  is  violated  by  one  party  in  one 


472  RIGHTS  AND   DUTIES   OF  NATIONS   IN   TIME  OF  PEACE       (Part  1 

or  more  of  its  articles,  the  other  can  regard  it  as  broken  and  demand 
redress,  or  can  still  require  its  observance."    Woolsey,  §  112. 

The  United  States  annulled,  or  at  least  attempted  to  annul,  the 
treaties  with  France  upon  the  grounds,  stated  in  the  preamble  of  the 
statute,  that  the  treaties  had  been  repeatedly  violated  by  France,  that 
the  claims  of  the  United  States  for  reparation  of  the  injuries  com- 
mitted against  them  had  been  refused ;  that  attempts  to  negotiate  had 
been  repelled  with  indignity  and  that  there  was  still  being  pursued 
against  this  country  a  system  of  "predatory  violence  infracting  the 
said  treaties  and  hostile  to  the  rights  of  a  free  and  independent  na- 
tion." Such  were  the  charges  upon  which  was  based  the  enactment 
that  "the  United  States  are  of  right  freed  and  exonerated  from  the 
stipulations  of  the  treaty  and  of  the  consular  convention  heretofore 
concluded  between  the  United  States  and  France,  and  that  the  same 
shall  not  henceforth  be  regarded  as  legally  obligatory  on  the  govern- 
ment or  citizens  of  the  United  States." 

The  treaties,  therefore,  ceased  to  be  a  part  of  the  supreme  law  of 
the  land,  and  when  Chief  Justice  Marshall  stated,  in  July,  1799,  Chirac 
V.  Chirac,  2  Wheat.  272,  4  L.  Ed.  234,  that  there  was  no  treaty  in 
existence  between  the  two  nations,  he  meant  only  that  within  the 
jurisdiction  of  the  Constitution  the  treaties  had  ceased  to  exist,  and 
did  not  mean  to  decide,  what  it  was  exclusively  within  the  power  of 
the  political  branch  of  the  government  to  decide,  that,  as  a  contract 
between  two  nations  the  treaties  had  ceased  to  exist  by  the  act  of  one 
party,  a  result  which  the  French  ministers  afterwards  said  could  be 
reached  only  by  a  successful  war. 

The  only  question  that  we  have  now  to  consider  is  that  of  the  mter- 
national  relation.  The  annulling  act  issued  from  competent  authority 
and  was  the  official  act  of  the  government  of  the  United  States.  So 
far  as  it  was  in  the  power  of  one  party  to  abrogate  these  treaties  it 
was  indisputably  done  by  the  act  of  July  7,  1798.  Notwithstanding 
this  statute,  did  not  the  treaties  remain  in  effect  to  this  extent,  if  no 
further,  that  they  furnish  a  scale  by  which  the  acts  of  France,  which 
we  are  charged  to  examine,  are  to  be  weighed ;  and  in  considering  the 
legality  of  those  acts  are  we  not  to  follow  the  treaties  where  they 
vary  the  law  of  nations  ?  The  claimants  in  very  learned  and  philosophi- 
cal arguments  contend  for  the  affirmative.     *     *     * 

We  are  of  the  opinion  that  the  circumstances  justified  the  United 
States  in  annulling  the  treaties  of  1778 ;  that  the  act  was  a  valid  one, 
not  only  as  a  municipal  statute,  but  as  between  the  nations;  and  that 
thereafter  the  compacts  were  ended.  We  fail  to  find  any  agreement 
by  France  as  to  these  claims  to  submit  to  the  treaty  rules  after  July  7, 
1798,  the  treaties  not  being  recognized  by  us,  and  we  conclude  that  the 
validity  of  claims  not  expressly  mentioned  in  the  treaty  of  1800, 
which  arose  after  July  7,  1798,  is  to  be  ascertained  by  the  principles 


Ch.  5)  TREATIES  473 

of  the  law  of  nations,  recognized  at  that  time,  and  not  by  exceptional 
provisions  found  in  the  treaties  of  1778.     *     *     *  ^4 

2*  See  Ropes  v.  Clinch,  8  Blatchf.  304,  Fed.  Cas.  No.  12,041  (1871),  for  the 
various  ways  in  which  Congress  may  destroy  the  operative  effect, of  a  treaty. 

In  Terlinden  v.  Ames,  184  U.  S.  270,  282-284,  22  Stip.  Ct.  484,  46  L.  bid. 
.584  (1902),  Mr.  Chief  Justice  Fuller  said,  in  behalf  of  the  court: 

"This  brings  us  to  the  real  question,  namely,  the  denial  of  the  existence  of 
a  treaty  of  extradition  between  the  United  States  and  the  Kingdom  of 
Prussia,  or  the  German  Empire.  In  these  proceedings  the  application  was 
made  by  the  official  representative  of  both  the  Empire  and  the  Kingdom  of 
Prussia,  but  was  based  on  the  extradition  treaty  of  1852.  The  contention  Is 
that,  as  the  result  of  the  formation  of  the  German  Empire,  this  treaty  had 
been  terminated  by  operation  of  law. 

"Treaties  are  of  different  kinds  and  terminable  in  different  ways.  The 
fifth  article  of  this  treaty  provided,  in  substance,  that  it  should  continue  in 
force  until  1858,  and  thereafter  until  the  end  of  a  twelve  months'  notice  by 
one  of  the  parties  of  the  intention  to  terminate  it.  No  such  notice  has  ever 
been  given,  and  extradition  has  been  frequently  awarded  under  it  during  the 
entire  intervening  time. 

"Undoubtedly  treaties  may  be  terminated  by  the  absorption  of  powers  into 
other  nationalities  and  the  loss  of  separate  existence,  as  in  the  case  of  Han- 
over and  Nassau,  which  became  by  conquest  incorporated  into  the  Kingdom  of 
Prussia  in  1866.  Cessation  of  independent  existence  rendered  the  execution 
of  treaties  impossible.  But  where  sovereignty  in  that  respect  is  not  extin- 
guished, and  the  power  to  execute  remains  unimpaired,  outstanding  treaties 
cannot  be  regarded  as  avoided  because  of  impossibility  of  performance. 

"This  treaty  was  entered  into  by  His  Majesty  the  King  of  Prussia  in  his 
own  name  and  in  the  names  of  eighteen  other  states  of  the  Germanic  Confed- 
eration, including  the  Kingdom  of  Saxony  and  the  free  city  of  Frankfort, 
and  was  acceded  to  by  six  other  states,  Including  the  Kingdom  of  Wiirtemburg. 
and  the  free  Hanseatic  city  of  Bremen,  but  not  including  the  Hanseatic  free 
cities  of  Hamburg  and  Lubeck.  The  war  between  Prussia  and  Austria  in 
1866  resulted  in  the  extinction  of  the  Germanic  Confederation  and  the  ab- 
sorption of  Hanover,  Hesse  Cassel,  Nassau  and  the  free  city  of  Frankfort 
by  Prussia. 

"The  North  German  Union  was  then  created  under  the  prtpsidium  of  the 
Crown  of  Prussia,  and  our  minister  to  Berlin,  George  Bancroft,  thereupon 
recognized  officially  not  only  the  Prussian  Parliament,  but  also  the  Parliament 
of  the  North  German  United  States,  and  the  collective  German  Customs  and 
Commerce  Union,  upon  the  ground  that  by  the  paramount  constitution  of  the 
North  German  United  States,  the  King  of  Prussia,  to  whom  he  was  accredited, 
was  at  the  head  of  those  several  organizations  or  institutions ;  and  his  ac- 
tion was  entirely  approved  by  this  government.  Messages  and  Documents, 
Dep.  of  State,  1867-68,  part  I,  p.  601 ;  Dip.  Correspondence,  Secretary  Seward 
to  Mr.  Bancroft,  Dec.  9,  1867. 

"February  22,  1868,  a  treaty  relative  to  naturalization  was  concluded  be- 
tween the  United  States  and  His  Majesty,  the  King  of  Prussia,  on  behalf  of 
the  North  German  Confederation,  the  third  article  of  which  read  as  follows : 
'The  convention  for  the  mutual  delivery  of  criminals,  fugitives  from  justice, 
in  certain  cases,  concluded  between  the  United  States  on  the  one  part  and 
Prussia  and  other  states  of  Germany  on  the  other  part,  the  sixteenth  day  of 
June,  one  thousand  eight  hundred  and  fifty-two,  is  hereby  extended  to  all  the 
states  of  the  North  German  Confederation.'  15  Stat.  615.  This  recognized  the 
treaty  as  still  in  force,  and  brought  the  republics  of  Lubeck  and  Hamburg 
within  its  scope." 


474  EIGHTS  AND  DUTIES  OF  NATIONS  IN   TIME  OP  PEACE       (Part  1 

CHAPTER  VI 
PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


SECTION  1.— MAINTENANCE  OF  GENERAL  PEACE 


CONVENTION  FOR  THE  PACIFIC  SETTLEMENT  OF  IN- 
TERNATIONAL DISPUTES.^ 

{First  Hague  Peace  Conference  of  ISDO,  July  29,  1899.    32  Stat.  1779,  1785.) 

Article  L  With  a  view  to  obviating,  as  far  as  possible,  recourse  to 
force  in  the  relations  between  States,  the  signatory  Powers  agree  to 
use  their  best  efforts  to  insure  the  pacific  settlement  of  international 
differences. 


SECTION  2.— GOOD  OFFICES  AND  MEDIATION 


CONVENTION  FOR  THE  PACIFIC  SETTLEMENT  OF  IN- 
TERNATIONAL DISPUTES. 

(First  Hague  Peace  Conference  of  1899,  July  29,  1899.    32  Stat.  1779,  1785- 

1786.) 

Article  2.  In  case  of  serious  disagreement  or  conflict,  before  an  ap- 
peal to  arms,  the  signatory  Powers  agree  to  have  recourse,  as  far  as 
circumstances  allow,  to  the  good  offices  or  mediation  of  one  or  more 
friendly  Powers. 

Article  3.  Independently  of  this  recourse,  the  signatory  Powers 
recommend  that  one  or  more  Powers,  strangers  to  the  dispute,  should, 

1  This  Convention,  negotiated  at  the  First  Peace  Conference,  meeting  at 
The  Hague,  May  18-July  29,  1899,  was  adopted  by  the  twenty-six  powers 
there  represented.  It  was  ratified  by  each  of  the  countries  taking  part  in  the 
conference,  and  the  ratifications  were  deposited,  in  accordance  with  the  terms 
of  the  agreement,  with  the  Minister  of  Foreign  Affairs,  at  The  Hague. 

In  June,  1907,  the  Latin- American  states  not  invited  to  the  First  Hague  Con- 
ference, or  participating  in  its  labors,  adhered  to  the  Pacific  Settlement  Con- 
vention, so  that  it  thereupon  became  the  law  of  forty-four  states. 

In  1907,  at  the  Second  Hague  Peace  Conference,  it  was  revised  and  enlarged, 
and  met  with  the  approval  of  the  forty-four  states  assembled.  States  which 
have  not  ratified  the  revised  Convention  remain  bound  by  the  first.  It  is, 
therefore,  to  all  intents  and  purposes,  the  law  of  all  civilized  states. 

Since  the  institution  of  the  Permanent  Court  of  Arbitration  provided  for 
by  the  Pacific  Settlement  Convention,  sixteen  cases  have  been  decided,  and 
one  is  pending.  For  the  texts  of  these  cases,  see  George  Grafton  Wilson,  The 
Hague  Arbitration  Cases,  Boston  (1915)  ;  James  Brown  Scott,  The  Hague 
Court  Reports,  New  York  (1916). 


Ch.  6)         PACIFIC   SETTLEMENT   OF  INTERNATIONAL  DISPUTES  475 

on  their  own  initiative,  and  as  far  as  circumstances  may  allow,  offer 
their  good  offices  or  mediation  to  the  States  at  variance. 

Powers,  strangers  to  the  dispute,  have  the  riglit  to  offer  good  offices 
or  mediation,  even  during  the  course  of  hostilities. 

The  exercise  of  this  right  can  never  be  regarded  by  one  or  the  other 
of  tlie  parties  in  conflict  as  an  unfriendly  act. 

Article  4.  The  part  of  the  mediator  consists  in  reconciling  the  op- 
posing claims  and  appeasing  the  feelings  of  resentment  which  may 
have  arisen  between  the  States  at  variance. 

Article  5.  The  functions  of  the  mediator  are  at  an  end  when  once  it 
is  declared,  either  by  one  of  the  parties  to  the  dispute,  or  by  the  media- 
tor himself,  that  the  means  of  reconciliation  proposed  by  him  are  not 
accepted. 

Article  6.  Good  offices  and  mediation,  either  at  the  request  of  the 
parties  at  variance,  or  on  the  initiative  of  Powers  strangers  to  the 
dispute,  have  exclusively  the  character  of  advice  and  never  have  bind- 
ing force. 

Article  7.  The  acceptance  of  mediation  can  not,  unless  there  be  an 
agreement  to  the  contrary,  have  the  effect  of  interrupting,  delaying, 
or  hindering  mobilization  or  other  measures  of  preparation  for  war. 

If  mediation  occurs  after  the  commencement  of  hostilities  it  causes 
no  interruption  to  the  military  operations  in  progress,  unless  there  be 
an  agreement  to  the  contrary.     *     *     * 


SECTION  3.— INTERNATIONAL  COMMISSIONS  OF 

INOUIRY 


CONVENTION  FOR  THE  PACIFIC  SETTLEMENT  OF  IN- 
TERNATIONAL DISPUTES. 

(First  Hague  Peace  Conference  of  1809.  July  29,  1S99.    32  Stat.  1779,  1787, 

1788.) 

Article  9.  In  differences  of  an  international  nature  involving  neither 
honor  nor  vital  interests,  and  arising  from  a  dift'erence  of  opinion 
on  points  of  fact,  the  signatory  Powers  recommend  that  the  parties, 
who  have  not  been  able  to  come  to  an  agreement  by  means  of  diplo- 
macy, should  as  far  as  circumstances  allow,  institute  an  international 
commission  of  inquiry,  to  facilitate  a  solution  of  these  dift'erences  by 
elucidating  the  facts  by  means  of  an  impartial  and  conscientious  in- 
vestigation. 

Article  10.  The  international  commissions  of  inquiry  are  constituted 
by  special  agreement  between  the  parties  in  conflict. 

The  convention  for  an  inquiry  defines  the  facts  to  be  examined  and 
the  extent  of  the  commissioners'  powers. 


4-76  RIGHTS  AND   DUTIES  OF  NATIONS   IN  TIMK  OF  PEACE       (Part  1 

It  settles  the  procedure. 

On  the  inquiry  both  sides  must  be  heard. 

The  form  and  the  periods  to  be  observed,  if  not  stated  in  the  inquiry 
convention,  are  decided  by  the  commission  itself.     *     *     * 

Article  14.  The  report  of  the  international  commission  of  inquiry 
is  limited  to  a  statement  of  facts,  and  has  in  no  way  the  character  of 
an  arbitral  award.  It  leaves  the  conflicting  Powers  entire  freedom  as 
to  the  effect  to  be  given  to  this  statement. 


SECTION  4.— INTERNATIONAL  ARBITRATION 


CONVENTION  FOR  THE  PACIFIC  SETTLEMENT  OF  IN- 
TERNATIONAL DISPUTES. 

(First  Hague  Peace  Conference  of  1899,  July  29.  1899.    32  Stat.  1779,  1788, 
1790,  1791,  1793,  1797,  1798.) 

Article  15.  International  arbitration  has  for  its  object  the  settlement 
of  differences  between  States  by  judges  of  their  own  choice,  and  on 
the  basis  of  respect  for  law. 

Article  16.  In  questions  of  a  legal  nature,  and  especially  in  the  in- 
terpretation or  application  of  international  conventions,  arbitration  is 
recognized  by  the  signatory  Powers  as  the  most  effective,  and  at  the 
same  time  the  most  equitable,  means  of  settling  disputes  which  diplo- 
macy has  failed  to  settle.     *     *     * 

Article  23.  Within  the  three  months  following  its  ratification  of 
the  present  Act,  each  signatory  Power  shall  select  four  persons  at  the 
most,  of  known  competency  in  questions  of  international  law,  of  the 
highest  moral  reputation,  and  disposed  to  accept  the  duties  of  arbitra- 
tors.    *     *     * 

The  members  of  the  Court  are  appointed  for  a  term  of  six 
years.     *     *     * 

Article  24.^  When  the  signatory  Powers  desire  to  have  recourse  to 
the  Permanent  Court  for  the  settlement  of  a  difference  that  has  arisen 
between  them,  the  arbitrators  called  upon  to  form  the  competent  tribu- 
nal to  decide  this  difference  must  be  chosen  from  the  general  list  of 
members  of  the  Court. 

-  In  the  revision  of  this  Convention,  made  In  1907  at  the  Second  Hague 
Peace  Conference,  the  following  addition  was  made  to  the  above  paragi-aph : 

"If,  within  two  months'  time,  these  two  Powers  can  not  come  to  an  agree- 
ment, each  of  them  presents  two  candidates  taken  from  the  list  of  members  of 
the  Permanent  Court,  exclusive  of  the  members  selected  by  the  parties  and 
not  being  nationals  of  either  of  them.  Drawing  lots  determines  which  of  the 
candidates  thus  presented  shall  be  umpire."  Convention  for  the  Pacific  Set- 
tlement of  International  Disputes,  signed  at  The  Hague,  October  18,  1907, 
art.  45,  36  Stat.  2223. 


Ch.  6)         PACIFIC  SETTLEMENT   OF   INTERNATIONAL  DISPUTES  ^77 

Failing  the  direct  agreement  of  the  parties  on  the  composition  of  the 
arbitration  tribunal,  the  following  course  shall  be  pursued : 

Each  party  appoints  two  arbitrators,  and  these  together  choose  an 
umpire. 

If  the  votes  are  equal,  the  choice  of  the  umpire  is  intrusted  to  a  third 
Power,  selected  by  the  parties  by  common  accord. 

If  an  agreement  is  not  arrived  at  on  this  subject,  each  party  selects 
a  different  Power,  and  the  choice  of  the  umpire  is  made  In  concert  by 
the  Powers  thus  selected. 

The  tribunal  being  thus  composed,  the  parties  notify  to  the  Bureau 
their  determination  to  ha-ve  recourse  to  the  Court  and  the  names  of  the 
arbitrators. 

The  tribunal  of  arbitration  assembles  on  the  date  fixed  by  the  par- 
ties. 

The  members  of  the  Court,  in  the  discharge  of  their  duties  and  out 
of  their  own  country,  enjoy  diplomatic  privileges  and  immunities.  *  *  * 

Article  31.  The  Powers  who  have  recourse  to  arbitration  sign  a  spe- 
cial act  (compromis),  in  which  the  subject  of  the  difference  is  clearly 
defined,  as  well  as  the  extent  of  the  arbitrators'  powers.     *     *     * 

Article  52.  The  award,  given  by  a  majority  of  votes,  is  accompanied 
by  a  statement  of  reasons.  It  is  drawn  up  in  writing  and  signed  by 
each  member  of  the  tribunal.     *     *     * 

Article  54.  The  award,  duly  pronounced  and  notified  to  the  agents 
of  the  parties  at  variance,  puts  an  end  to  the  dispute  definitely  and 
without  appeal.^ 

Article  55.  The  parties  can  reserve  in  the  compromis  the  right  to 
demand  the  revision  of  the  award. 

In  this  case,  and  unless  there  be  an  agreement  to  the  contrary,  the 
demand  must  be  addressed  to  the  tribunal  which  pronounced  the  award. 
It  can  only  be  made  on  the  ground  of  the  discovery  of  some  new  fact 
calculated  to  exercise  a  decisive  influence  on  the  award,  and  which, 
at  the  time  the  discussion  was  closed,  was  unknown  to  the  tribunal  and 
to  the  party  demanding  the  revision. 

Proceedings  for  revision  can  only  be  instituted  by  a  decision  of  the 
tribunal  expressly  recording  the  existence  of  the  new  fact,  recognizing 
in  it  the  character  described  in  the  foregoing  paragraph,  and  declaring 
the  demand  admissible  on  this  ground. 

The  compromis  fixes  the  period  within  which  the  demand  for  re- 
vision must  be  made. 

Article  56.  The  award  is  only  binding  on  the  parties  who  concluded 
the  compromis.     *     *     * 

8  In  the  1907  revision  of  this  Convention,  the  following  article  was  In- 
serted after  the  above.. 

"Article  82.  Any  dispute  arising  between  the  parties  as  to  the  interpretation 
and  execution  of  the  award  shall,  in  the  absence  of  an  agreement  to  the  con- 
trary, be  submitted  to  the  tribunal  which  prououu^ced  it."    36  Stat.  2199,  2232. 


APPENDIX  TO  PART  ONE 


In  re  CHAMBERLAIN'S  SETTLEMENT. 
CHAMBERLAIN  v.  CHAMBERLAIN. 

(Chancery  Division,  1921.     37  Times  L.  Rep.  966.) 

By  a  settlement  dated  May  5,  1902,  General  Sir  Crawford  T.  Cham- 
berlain settled  £5,000  on  trust  for  investment  and  to  pay  the  income  of 
the  trust  funds  to  his  nephew,  Houston  Stewart  Chamberlain,  during 
his  life  or  until  he  should  become  bankrupt,  or  should  assign  or  charge 
it,  "or  until  some  event  shall  happen  *  *  *  whereby  the  said  in- 
come or  any  part  thereof,  if  belonging  absolutely  to  him,  would  become 
vested  or  charged  in  favour  of  some  other  person  or  persons  or  a  cor- 
poration" ;  and  in  the  event  of  the  determination  during  the  life  of  H. 
S.  Chamberlain  of  the  above  trust  in  his  favour,  the  trustees  were  given 
a  discretion  to  apply  the  income  for  the  benefit  of  H.  S.  Chamberlain 
and  his  present  or  any  after-taken  wife  and  his  issue,  and  subject  there- 
to were  directed  to  hold  the  capital  and  income  of  the  trust  funds  upon 
trust  for  the  benefit  of  the  issue  of  H.  S.  Chamberlain  .and  in  default 
of  issue  upon  trust  as  therein  mentioned. 

This  summons  was  taken  out  by  the  trustees  for  the  time  being  to 
have  it  determined  whether  the  life  interest  of  H.  S.  Chamberlain  was 
forfeited  by  virtue  of  the  charge  imposed  on  the  property  of  German 
nationals  in  this  country  on  January  10,  1920,  by  article  297  of  the 
Treaty  of  Peace  with  Germany  or  the  Treaty  of  Peace  Order,  1919. 

The  evidence  was  that  H.  S.  Chamberlain  was  born  in  England  on 
September  9,  1855.  In  1870  he  went  to  the  Riviera  and  stayed  there 
till  1878,  studying  under  a  Prussian  tutor.  In  1878  he  was  ma'rried  at 
Geneva  to  a  German,  and  resided  at  Geneva  or  Paris  until  1882,  and  at 
Vienna  from  1882  to  1906.  In  1907  he  divorced  his  wife  in  Germany, 
and  in  1908  married  his  present  wife,  a  daughter  of  Richard  Wagner; 
and  from  that  time  he  had  resided  at  Bayreuth. 

Before  the  war  H.  S.  Chamberlain  was  well  known  in  Germany  for 
his  writings  on  political  and  other  subjects,  in  which  he  expressed  strong 
pro-Teutonic  and  anti-Semitic  views.  During  the  war  he  was  anti- 
British.    He  had  no  issue. 

Early  in  1921  his  solicitors  received  a  letter  from  him  in  which  he 
stated  that  he  had  obtained  a  certificate  of  naturalization  as  a  German 
on  August  8,  1916.  He  added  "that  his  application  for  naturalization 
was  originally  made  the  very  day  the  news  reached  us  of  England's 
declaration  of  war  against  Germany,  which  forced  me  to  decide  once 
for  all  between  the  country  of  my  birth  and  the  country  of  my  adoption, 
which  is  also  the  country  of  my  aflfections  since  childhood,  and  the 
country  which  gives  me  my  livelihood."    The  delay  in  obtaining  the 

(478) 


Part  1)  APPENDIX  479 

certificate  had,  he  said,  been  caused  by  the  need  to  obtain  the  consent 
of  the  separate  German  states  as  well  as  special  permission  for  naturali- 
zation during  the  war.  Evidence  was  before  the  court  as  to  H.  S.  Cham- 
berlain's position  in  German  law,  but  it  was  admitted  at  the  hearing  on 
behalf  of  H.  S.  Chamberlain  that  in  a  German  court  applying  German 
law  he  would  be  recognized  as  a  German  citizen.     *     *     * 

Mr.  Justice  P.  O.  Lawrence,  in  delivering  judgment,  said  that  the 
question  was  whether  the  respondent,  Houston  Stewart  Chamberlain, 
had  a  German  nationality  within  the  meaning  of  the  Treaty  of  Peace 
and  of  the  Treaty  of  Peace  Order,  1919.  Section  2  of  the  Order  pro- 
vided that  for  the  purposes  of  the  Order  the  expression  "nationals"  in 
relation  to  any  state  included  the  subjects  or  citizens  of  that  state.  He 
(his  Lordship)  agreed  with  the  decision  of  Mr.  Justice  Russell  in 
Stoeck  v.  Public  Trustee,  37  The  Times  L.  R.  666,  [1921]  2  Ch.  67, 
that  the  question  whether  a  person  was  a  "German  national"  within  the 
meaning  of  the  Treaty  and  Order  fell  to  be  determined  exclusively  by 
the  German  municipal  law.  It  was  clear  from  the  evidence  and  was 
admitted  that  the  respondent,  according  to  German  municipal  law,  by 
virtue  of  his  naturalization,  acquired  the  status  of  a  German  subject, 
although  at  the  time  he  was  the  subject  of  a  state  at  war  with  the 
German  Empire.  It  was  true  that  the  courts  of  this  country,  in  the  cir- 
cumstances of  this  case,  would  refuse  to  recognize  the  respondent's 
change  of  allegiance  and  would  hold  him  still  liable  to  all  the  obliga- 
tions of  a  British  subject  (Rex  v.  Lynch,  19  The  Times  L.  R.  163, 
[1903]  1  K.  B.  444;  and  Ex  parte  Freyberger,  33  The  Times  L.  R.  275, 
[1917]  2  K.  B.  129);  but,  bearing  in  mind  that  the  Treaty  was  an  in- 
ternational agreement,  one  of  the  parties  to  which  was  Germany,  he 
(his  Lordship)  did  not  think  that  there  was  anything  incongruous  in 
holding  that  the  respondent  was  a  German  national  within  the  meaning 
of  the  Treaty,  although  for  all  other  purposes  the  courts  of  this  country 
would  refuse  to  recognize  his  German  nationality.  To  hold  otherwise 
would  lead  to  the  anomalous  result  that  the  expression  "German  nation- 
al" in  the  Treaty  would  bear  a  different  meaning  in  England  from  that 
which  it  bore  in  Germany.  The  true  view  of  the  construction  of  the 
Treaty  was  that  the  expression  "German  nationals"  included,  and  was 
intended  to  include,  all  persons  who  according  to  German  law  answered 
that  description,  whether  they  also  had  any  other  nationality  or  not,  and 
that  it  was  left  to  each  of  the  Allied  and  Associated  Powers  so  to  regu- 
late matters  within  its  own  jurisdiction  as  to  ensure  that  there  should 
be  no  in  justice  or  hardship.  Therefore,  if  it  was  proved,  as  it  had  been 
in  this  case,  that  the  person  concerned  was  a  German  national  according 
to  German  municipal  law,  then  that  person  came  within  the  operation 
of  the  Treaty  and  Order,  although  he  might  also  be  a  national  of  some 
other  state,  even  though  that  state  was  Great  Britain,  and  even  though, 
according  to  our  law,  he  would  be  deemed  not  to  be  a  German  subject. 
He  (his  Lordship)  therefore  held  that  the  respondent  was  a  German 
national  within  the  meaning  of  the  Treaty  and  Order.    The  result  was 


480  APPENDIX  (Part  1 

that  the  accumulations  in  the  hands  of  the  trustees  representing  income 
which  had  accrued  before  January  10,  1920,  ought  to  be  paid  to  the 
Custodian,  and  the  income  accrued  after  that  date  was  appHcable  under 
the  discretionary  trust  which  came  into  operation  on  that  date  by  vir- 
tue of  the  charge  created  by  the  joint  operation  of  the  Treaty  and 
Order. 


FASBENDER  v.  ATTORNEY  GENERAL. 

(Chancery  Division,  1921.    38  Times  L.  Rep.  114.) 

This  action  raised  the  question  whether  a  woman  of  British  parentage 
and  nationahty,  who  married  a  German  national  on  November,  3,  1919, 
between  the  date  of  the  Armistice  and  the  date  on  which  the  Treaty 
of  Peace  came  into  force,  thereby  became  a  German  national  within 
the  Treaty  of  Peace. 

The  plaintiff,  now  the  wife  of  Ernest  H.  Fasbender,  a  German  nation- 
al, was  bom  at  Lincoln,  the  daughter  of  parents  of  British  nationality. 
Before  the  outbreak  of  war  she  became  engaged  to  her  present  husband, 
and  after  the  Armistice,  on  October  10,  1919,  she  left  England  and  went 
through  the  ceremony  of  marriage  at  Siegburg,  near  Cologne,  on  No- 
vember 3,  1919.  The  plaintiff  was  possessed  of  certain  property  in 
England,  which  was  taken  by  the  Public  Trustee  as  Custodian  of  En- 
emy Property,  and  he  claimed  that  by  her  marriage,  the  plaintiff  had  be- 
come a  German  national,  and  that  her  property  had  become  subject  to 
the  charge  on  the  property  of  German  nationals  created  by  the  Treaty 
of  Peace  Order,  1919.  The  Custodian  -declined  to  exercise  in  favour  of 
the  plaintiff  the  power  vested  in  him  by  section  1  (xvi)  of  the  Treaty 
of  Peace  Order,  1919,  as  amended  by  the  Treaty  of  Peace  (Amendment) 
Order,  1920,  to  release  the  plaintiff's  property  from  the  charge.  The 
plaintiff  contended  that  during  the  war  a  British  subject  was  unable  to 
divest  himself  or  herself  of  his  or  her  British  nationality  and  become 
a  subject  of  an  enemy  State,  and  relied  on  the  decisions  in  Rex  v. 
Lynch,  19  The  Times  L.  R.  163,  [1903]  1.  K.  B.  444,  and  Ex  parte 
Freyberger,  33  The  Times  L  R.  275,  [1917]  2  K.  B.  129.  She  contend- 
ed that  the  decisions  in  those  cases  applied  equally  to  the  case  of  a 
change  of  nationality  caused  by  marriage.  She  began  this  action  against 
the  Attorney  General  claiming  a  declaration  that  her  property  rights 
and  interests  in  his  Majesty's  dominions  on  January  10,  1920  (the 
date  when  the  Treaty  came  into  operation),  were  not  subject  to  the 
charge  under  the  Treatv  of  Peace  with  Germany  or  the  Treaty  of  Peace 
Order,  1919.     *     *     * 

Mr.  Justice  RussEi^L,  in  his  considered  judgment,  said  that  two 
points  were  raised  on  behalf  of  the  plaintiff — (1)  that  she  could  not, 
even  if  she  wished,  throw  o"ff  her  allegiance  to  the  British  crown  in 
time  of  war,  and  therefore  that  she  had  not  by  her  marriage  ceased  to 
be  a  British  national  on  January  10,  1920;  (2)  that,  if  this  were  correct, 


Part  1)  APPENDIX  481 

she  was  then  a  person  of  dual  nationality,  and  that  such  a  person,  who 
possessed  as  one  of  her  nationalities  British  nationality,  was  not  a 
German  national  within  the  meaning  of  section  1  (xvi)  of  the  Treaty 
of  Peace  Order,  1919.  On  the  first  point,  a  British  subject  could  not, 
at  common  law,  of  his  own  act  divest  himself  of  his  British  nationality, 
whether  this  country  were  at  peace  or  at  war.  The  power  to  do  so 
was  first  given  by  the  Naturalization  Act,  1870,  which  had  now  been 
superseded  and  repealed  by  the  British  nationality  and  Status  of  Aliens 
Act,  1914.  By  section  10  of  the  latter  act  it  was  enacted  that  "the  wife 
of  a  British  subject  shall  be  deemed  to  be  a  British  subject,  and  the 
wife  of  an  alien  shall  be  deemed  to  be  an  alien."  Section  11  provided 
that  a  woman,  who,  having  been  a  British  subject,  had  by  her  marriage 
become  an  alien,  should  not,  by  reason  only  of  the  death  of  husband  or 
the  dissolution  of  the  marriage,  cease  to  be  an  ahen.  Section  13  pro- 
vided that  a  British  subject  who  had  been  naturalized  in  a  foreign  state 
should  thenceforth  be  deemed  to  have  ceased  to  be  a  British  subject. 
Section  14  provided  that  a  person  who  was  also  a  subject  of  a  foreign 
state,  as  well  as  a  British  subject,  or  who.  though  born  abroad,  was  a 
British  subject,  should  be  able  to  make  a  declaration  of  alienage,  when 
of  full  age,  and  thereby  cease  to  be  a  British  subject. 

His  Lordship  said  that  it  was  argued  that  the  effect  of  section  10  was 
that  a  woman  who  was  a  British  subject,  by  doing  the  particular  act  of 
marriage,  might  cease  to  be  a  British  subject  in  the  same  way  as,  under 
sections  13  and  14,  a  British  subject  might  cease  to  be  so  by  doing 
particular  acts.  Accordingly,  it  was  argued  that  the  authorities,  which 
had  held  that  the  acts  provided  for  by  sections  13  and  14  had  no  effect 
in  time  of  war,  applied  to  the  marriage  of  a  woman  to  an  alien  in  time 
of  war,  and  that  she  did  not  by  marriage  lose  her  nationality.  The  cas- 
es cited  were  Rex  v.  Lynch,  supra,  and  Ex  parte  Freyberger,  supra. 

Ex  parte  Freyberger,  supra,  was  a  case  under  section  14  of  the  act 
of  1914.  There  Freyberger.  a  British  subject  by  English  law,  was  by 
Austrian  law  an  Austrian  subject.  On  attaining  the  age  of  21  years 
he  made  a  declaration  of  alienage  under  section  14,  and  claimec}  to  be 
released  from  military  service.  It  was  held,  both  in  the  King's  Bench 
Division  and  in  the  Court  of  Appeal,  that  he  could  not  during  a  atate 
of  war  divest  himself  of  his  British  nationality  by  a  declaration  of 
alienage.  The  two  cases  were,  of  course,  binding  as  to  sections  13  and 
14 ;  but  did  they  really  touch  section  10?  They  decided  that  formal  acts, 
whose  sole  object  was  to  terminate  British  nationality  and  acquire 
enemy  nationality,  could  not  in  time  of  war  be  effective  to  produce 
those  results.  Section  10  was  in  a  different  form ;  no  act  was  mention- 
ed, except  in  a  proviso,  which  did  not  concern  this  question ;  the  sec- 
tion dealt  merely  with  the  status  of  married' women,  and  enacted  that 
the  wife  of  an  alien  v.^as  to  be  deemed  an  alien.  Except  as  to  the  im- 
material proviso,  the  section  was  not  an  empowering  section  at  all.  By 
the  section  alienage  attached  in  invitam  to  the  wife  as  a  by-product  of 
►Scott  Int.Law— 31 


482  APPENDIX  (Part  1 

marriage.  Alienage  was  not  the  sole  object  of  marriage,  or  even  its 
primary  object;  nor  could  it  be  reasonably  said  to  fall  within  its  object 
at  all.  On  the  other  hand,  sections  13  and  14  were  empowering  sec- 
tions, and  the  steps  mentioned  were  voluntary  acts  done  by  the  British 
subject  for  the  termination  of  his  British  nationality,  and  for  no  other 
purposes.  It  appeared  to  him  that  Rex  v.  Lynch,  supra,  and  Ex  parte 
Freyberger,  supra,  had  no  real  application  to  section  10. 

The  plaintiff's  marriage  was  undoubtedly  valid  under  German  law, 
and,  unless  he  was  prepared  to  hold  (which  he  was  not)  that  the  mar- 
riage was  a  nullity  under  the  laws  of  this  country,  the  plaintiff  was 
now  the  lawful  wife  of  an  alien.  Thus  she  fell  within  the  section,  and 
was  to  be  deemed  an  alien.  This  result  flowed  upon  her  in  spite  of  her- 
self, and  not  as  the  result  of  an  action  taken  with  the  object  of  the 
withdrawal  of  allegiance  to  the  British  crown. 

If  he  was  right,  no  dual  nationality  existed,  and  the  second  point  did 
not  arise ;  but,  if  he  was  wrong  on  the  first  point,  the  second  point  was 
completely  covered  by  the  decision  of  Mr.  Justice  P.  O.  Lawrence  in  In 
re  Chamberlain's  Settlement — Chamberlain  v.  Chamberlain,  supra. 
Mr.  Romer,  for  the  plaintiff,  conceded  that  the  decision  covered  the 
exact  point,  but  he  invited  him  not  to  follow  it.  Although  he  was  not 
strictly  bound  by  the  decision,  it  was  founded  on  a  considered  judgment, 
which  was  the  only  judgment  on  record  dealing  with  the  matter.  In 
those  circumstances  judicial  comity  would  have  prompted  him  to  follow 
it,  and,  had  it  been  necessary  for  him  to  decide  that  part  of  the  case, 
which  it  was  not,  he  would  without  comment  have  followed  that  deci- 
sion. 


JOHNSTONE  V.  PEDLAR. 

(House  of  Lofds,  1921.    L.  R.  [1921]  2  App.  Cas.  262.) 

Appeal  from  an  order  of  the  Court  of  Appeal  in  Ireland,  reversing 
an  order  of  the  King's  Bench  Division  in  Ireland,  and  ordering  judg- 
ment to  be  entered  for  the  plaintiff  in  the  action.     [1920]  2  L.  R.  450. 

The  respondent  was  an  Irishman  by  birth,  but  had  become  a  natural- 
ized American  citizen.  In  1916  he  returned  to  Ireland,  and  since  then 
he  had,  with  some  interruptions,  resided  in  that  country.  The  action 
was  brought  by  the  respondent  against  the  appellant,  the  Chief  Com- 
missioner of  the  Dublin  Metropolitan  Police,  for  the  return  of  a  sum 
of  cash  and  a  cheque,  both  the  property  of  the  respondent,  which  had 
been  found  upon  his  person  and  seized  by  the  police  on  his  being  arrest- 
ed in  Ireland  for  illegal  drilling,  with  damages  for  their  detention,  or 
alternatively  for  damages  for  the  conversion  of  the  said  money  and 
cheque. 

The  substantial  defence  to  the  action  was  that  the  plaintiff  was  an 
alien  and  the  said  moneys  and  cheque  were  taken  and  detained  by  an 
officer  of  the  Crown  by  the  direction  of  the  Crown  as  an  act  of  state 

Scott  Int.Law 


Part  1)  APPENDIX  483 

for  the  defence  of  the  reahn  and  for  the  prevention  of  crime,  *  *  * 
Viscount  Cabe.  My  Lords,  counsel  for  the  appellant  contended 
for  the  broad  proposition  that,  where  the  personal  property  of  an  alien 
friend  resident  in  this  country  is  seized  and  detained  by  an  officer  of 
the  Crown,  and  his  act  is  adopted  and  ratified  by  the  Crown  as  an  act 
of  state,  the  alien  is  without  legal  remedy.  In  my  opinion  this  proposi- 
tion cannot  be  sustained. 

When  a  wrong  has  been  done  by  the  King's  officer  to  a  British  sub- 
ject, the  person  wronged  has  no  legal  remedy  against  the  sovereign, 
for  "the  King  can  do  no  wrong" ;  but  he  may  sue  the  King's  officer  for 
the  tortious  act,  and  the  latter  cannot  plead  the  authority  of  the  sover- 
eign, for  "from  the  maxim  that  the  King  cannot  do  wrong  it  follows, 
as  a  necessary  consequence,  that  the  King  cannot  authorize  wrong." 
Tobin  V.  The  Queen  (1864)  16  C.  B.  (N.  S.)  310;  Feather  v.  The 
Queen,  6  B.  &  S.  257,  295.  On  the  other  hand,  where  the  person  in- 
jured is  an  alien  resident  abroad,  the  above  rule  does  not  apply;  and  if 
the  act  causing  the  injury  is  adopted  by  the  sovereign  as  an  act  of  state, 
the  alien  is  without  redress  except  by  diplomatic  action  taken  through 
the  government  of  his  own  country.  Buron  v.  Denman,  2  Ex.  167; 
Secretary  of  State  for  India  v.  Kamachee  Boye  Sahaba  (1859)  13  AIoo. 
P.  C.  22. 

But  there  is  a  third  case — namely,  where  the  person  aggrieved  is  an 
alien  ami  resident  here ;  and  I  think  that  it  is  the  established  law  that 
such  a  case  falls  within  the  first  and  not  within  the  second  of  the  above 
categories.  In  early  times  an  alien  had  no  rights  in  public  law,  and  in 
private  law  his  rights  were  much  restricted.  It  was  laid  down  by 
Littleton  (section  198)  that  an  alien  could  bring  no  action,  real  or  per- 
sonal, but  as  regards  an  alien  ami  this  proposition  was  disputed  by  Coke, 
who  said :  "In  this  case  the  law  doth  distinguish  betweene  an  alien,  that 
is  a  subject  to  one  that  is  an  enemy  to  the  King,  and  one  that  is  subject 
to  one  that  is  in  league  with  the  King ;  and  true  it  is  that  an  alien  enemie 
shall  maintaine  neither  reall  nor  personall  action,  donee  terras  fuerint 
communes,  that  is,  untill  both  nations  be  in  peace;  but  an  alien  that  is 
in  league,  shall  maintain  personall  actions ;  for  an  alien  may  trade  and 
traffique,  buy  and  sell,  and  therefore  of  necessity  he  must  be  of  ability 
to  have  personall  actions ;  but  he  cannot  maintaine  either  reall  or  mixt 
actions."  Co.  Litt.  129b.  Certainly  Littleton's  rule  was  not  recognized 
by  the  lav/  merchant  or  in  chancery ;  and  before  the  end  of  the  sixteenth 
century  it  was  established  that  at  common  law  an  alien  friend  could 
own  chattels  and  sue  on  a  contract  or  in  tort  in  the  same  manner  as  a 
British  subject.  Dyer  2b.  No  doubt  a  friendly  alien  is  not  for  all 
purposes  in  the  position  of  a  British  subject.  For  instance,  he  may  be 
prevented  from  landing  on  British  soil  without  reason  given,  Musgrove 
V.  Chun  Teeong  Toy,  [1891]  A.  C.  272;  and  having  landed,  he  may  be 
deported,  at  least  if  a  statute  authorizes  his  expulsion :  Attorney  Gen- 
eral for  Canada  v.  Cain,  [1906]  A.  C.  542;  and  see  In  re  Adam,  [1837] 
1  Moo.  P.  C.  460.    But  so  long  as  he  remains  in  this  country  with  the 


484  APPENDIX  (Part  I 

permission  of  the  sovereign,  express  or  implied,  he  is  a  subject  by 
local  allegiance  with  a  subject's  rights  and  obUgations.  Hale's  Pleas 
of  the  Crown,  vol.  1,  p.  542;  Calvin's  Case  (1608)  7  Rep.  6a;  De  Jager 
V.  Attorney  General  of  Natal,  [1907]  A.  C.  326;  Porter  v.  Freuden- 
berg,  per  Lord  Reading,  C.  J.,  [1915]  1  K.  B.  857,  869;  including  the 
right  to  sue  the  King's  officer  for  a  legal  wrong.     *     *     * 

The  above  observations  are  sufficient  to  cover  the  present  case,  which 
your  Lordships  were  invited  to  determine  on  broad  lines.  If  it  were 
necessary  to  go  into  the  particular  facts  of  this  case,  it  would  have  to 
be  considered  whether  the  seizure  by  a  police  officer  of  money  found 
on  a  person  arrested  within  the  realm  can  properly  be  described,  even 
though  ratified  by  a  minister,  as  an  "act  of  state."  It  has  been  said 
that  such  an  act  must  be  done  outside  British  territory.  Cobbett's 
Leading  Cases,  vol.  1,  p.  18;  see  Musgrave  v.  Pulido  (1879)  5  App. 
Cas.  102,  112,  and  again  that  the  expression  "act  of  state"  denotes  "a 
catastrophic  change  constituting  a  new  departure,"  per  Moulton,  L.  J., 
in  Salaman  v.  Secretary  of  State  for  India,  [1906]  1  K.  B.  613,  640; 
but  it  is  unnecessary  in  the  present  case  to  determine  whether  the  mean- 
ing of  the  term  is  so  restricted.  It  is  enough  to  say  that  in  this  case  the 
defence  of  "an  act  of  state"  cannot  prevail.     *     *     * 

Lord  Phillimore.  My  Lords,  this  case  has  merited,  and  has  re- 
ceived, ample  discussion;  but  at  the  conclusion  I  think  I  can  put  my 
reasons  for  a  decision  into  a  short  compass. 

When  a  subject  sues  another  subject  for  a  supposed  tort,  the  defend- 
ant cannot  plead  as  a  defence  that  he  did  the  act  that  is  said  to  be  a 
tort  by  authority  of  the  King.  The  maxim,  "The  King  can  do  no 
wrong,"  is  to  be  applied  to  litigation  in  this  way :  No  one  complained 
of  for  an  act  which  is  said  to  be  a  tort  can  withdraw  the  cognizance  of 
that  claim  from  the  Courts  of  the  land  by  averring  that  he  did  the  act 
by  command  of  the  King ;  J^ecause  if  it  was  a  lawful  act,  such  averment 
is  unnecessary,  and  if  it  was  an  unlawful  act,  he  cannot  be  admitted 
to  say  that  he  was  told  to  do  it  by  the  King.  The  defence  set  up  in  the 
present  case  is  sometimes  called  the  defence  of  an  act  of  state.  As 
regards  this  way  of  looking  at  it,  I  cannot  put  the  matter  better  or  more 
tersely  than  as  I  found  it  put  in  one  of  the  reasons  given  by  the  suc- 
cessful plaintiffs  in  their  case  as  respondents  before  the  Privy  Council 
in  Walker  v.  Baird,  [1892]  A.  C.  491,  494:  "Because  between  Her 
Majesty  and  one  of  her  subjects  there  can  be  no  such  thing  as  an  act 
of  state."  And  this  proposition  was  finally  accepted  in  the  case  of 
Walker  v.  Baird,  [1892]  A.  C.  491,  494. 

The  next  matter,  then,  that  remains  for  inquiry,  is  whether  the  sub- 
ject for  this  purpose  must  be  a  natural-born  or  naturalized  subject  or 
whether  the  word  also  comprehends  a  temporary  subject,  that  is,  the 
citizen  or  subject  of  a  friendly  state  residing  in  this  country.  As  re- 
gards such  aliens,  the  rules  of  international  law  and  the  common  law 
of  England  and  Ireland  which  agrees  with  international  law  are,  I 
think,  well  established.     To  begin  with  the  alien  takes  his  character 


Part  1)  APPENDIX  -iSS 

from  his  state.  If  his  state  is  at  war  with  ours  his  individual  friendli- 
ness avails  him  nothing  unless  it  entires  to  procure  for  him  the  special 
favour  of  license  from  the  King.  If  his  state  is  in  amity  with  ours  he 
is  considered  an  alien  ami  even  though  his  personal  intentions  are  hos- 
tile. His  individual  hostility  does  not  entitle  him  to  the  character  of  an 
alien  enemy.  He  can  be  executed  for  high  treason,  and  is  not  entitled 
to  be  considered  as  a  prisoner  of  war.  By  parity  of  reason  neither 
does  his  individual  hostility  disentitle  him  to  the  rights  conferred  by  law 
upon  an  alien  ami,  once  he  has  entered  this  realm  with  permission  from 
the  King. 

The  King,  however,  can  refuse  any  alien  admission  to  the  realm. 
This  was  established  by  the  decision  of  the  Privy  Council  in  Alusgrove 
V.  Chun  Teeong  Toy,  [1891]  A.  C.v272;  and  that  permission  may  in 
some  respects  be  conditioned.  Every  state  may,  according  to  interna- 
tional law,  make  special  laws  regulating  the  acts  and  property  of  aliens 
within  the  realm.  By  the  common  law  of  England  and  Ireland  an  alien 
could  not  hold  real  estate,  not  even  chattels  real,,  for  more  than  a  short 
term.  The  droit  d'aubaine  existed  in  France  till  the  Revolution.  Most 
countries,  including  our  own,  have  from  time  to  time  passed  Alien  Acts. 

But  an  alien  ami  is  never  ex  lex ;  he  is  never  subject  to  the  arbitrary 
dispositions  of  the  King.  His  rights  may  be  limited,  but  whatever 
rights  he  has  he  can  enforce  by  law  just  as  an  ordinary  subject  can. 
That  is,  I  believe,  both  international  law  and  the  law  of  this  country. 
No  trace  of  any  other  doctrine  is  to  be  found  in  the  text  books,  or  in 
decided  cases.  The  alien  ami,  once  he  is  resident  within  the  realm,  is 
gi\  en  the  same  rights  for  the  protection  of  his  person  and  property  as 
a  natural  born  or  naturalized  subject.     *     *     * 

From  these  propositions  it  would  seem  to  follow  that  an  alien  ami 
complaining  of  a  tort  is  ih  the  position  of  an  ordinary  subject,  and  that 
no  more  against  him  than  against  any  other  subject  can  it  be  pleaded 
that  the  wrong  complained  of  was,  if  a  wrong,  done  by  command  of  the 
King  or  was  a  so-called  act  of  state. 

From  the  moment  of  his  entry  into  the  country  the  alien  owes  alle- 
giance to  the  King  till  he  departs  from  it,  and  allegiance,  subiect  to  a 
possible  qualification  which  I  shall  mention,  draws  with  it  protection, 
just  as  protection  draws  allegiance. 

Then  is  there  anything  special  in  this  case  ?  The  respondent  has  in- 
deed no  merits.  On  his  own  admission,  he  might  have  been  tried,  con- 
victed and  executed  for  high  .treason.  His  conduct  shows  evidence 
of  much  hostile  feeling.  He  has  since  been  expelled  and  rightly  expelled 
from  the  country.  But  at  the  time  when  his  money  was  taken  from  him, 
he  was  residing  in  the  country,  like  any  other  alien,  with  the  tacit  per- 
mission of  the  King.  He  owed  temporary  allegiance  to  the  King  and 
for  that  reason  could  have  been  tried  for  high  treason ;  but  he  was  en- 
titled till  his  trial  to  ordinary  protection.     *     *     *  | 

fThe  concurring  opinions  of  Viscount  Finloy  and  Lords  Atkinson  and 
Sumner  are  omitted. 


PART  II 

COMPULSIVE  MEASURES  OF  REDRESS  IN 
TIME  OF  PEACE 


CHAPTER  I 
NONINTERCOURSE 


THE  PATRIOT. 

(Circuit  Court  of  the  United  States,  D.  A^irainia,  1820.    1  Brock.  407; 
Fed.  Gas.  No.  13,985.) 

This  was  a  libel  against  the  schooner  Patriot,  a  British  vessel,  and 
her  cargo,  owned  partly  by  a  British  subject,  and  partly  by  citizens 
of  the  United  States,  which  arrived  in  the  Chesapeake  Bay,  in  June, 
1812,  three  days  after  the  declaration  of  war,  between  the  United 
States  and  Great  Britain,  from  the  island  of  Guadaloupe,  a  British 
colony,  contrary  to  the  several  acts  of  Congress,  to  interdict  the  com- 
mercial intercourse  between  the  United  States  and  Great  Britain,  her 
colonies  and  dependencies.  The  District  Court  of  the  United  States 
at  Norfolk,  condemned  the  vessel  and  her  cargo,  and  from  this  de- 
cree, the  claimants  appealed  to  this  court. 

The  following  opinion  was  delivered  by 

Marshall,  C.  J.^  The  schooner  Patriot,  a  British  vessel,  then 
lying  in  the  port  of  Norfolk,  was  purchased  in  February,  1812,  by 
Oswald  Lawson,  a  British  subject,  then,  and  for  some  time  before, 
a  resident  of  the  town  of  Norfolk.  This  purchase  was  made  by  Law- 
son,  at  the  instance  of  Henry  Thomson,  and  Robert  Dixson,  citizens 
of  the  United  States,  whose  object  was,  a  mercantile  voyage  to  the 
West  Indies,  and  who  advanced  the  whole  purchase  money,  and  took 
a  bottomry  bond,  as  security  for  the  repayment  thereof.  The  schoon- 
er sailed  for  the  West  Indies  in  February,  1812,  with  a  cargo  owned 
by  Thomson  &  Dixon,  which  was  placed  under  the  control  of  Oswald 
Lawson,  as  supercargo.  He  sold  his  cargo  in  the  West  Indies,  and 
took  on  board  at  Guadaloupe,  a  return  cargo,  consisting  of  sugars, 
belonging  chiefly  to  Thomson  &  Dixon,  with  which  he  sailed  from 
Guadaloupe  in  May  1812,  bound  to  Halifax,  in  Nova  Scotia,  but  with 

1  Parts  of  the  opinion  are  omitted. 

(486) 


Ch.  1)  NONINTERCOURSE  487 

a  determination  to  lie  off  the  Capes  of  Virginia,  until  explicit  instruc- 
tions should  be  received  from  Thomson,  one  of  the  owners  of  the 
cargo,  residing  in  Norfolk.  She  arrived  off  the  Capes  of  Virginia  in 
June,  immediatel}'  after  the  declaration  of  war  was  known  in  Nor- 
folk. Lawson,  the  supercargo  and  owner  of  the  vessel,  being  igno- 
rant of  that  event,  despatched  the  mate  with  a  letter  of  advice  to 
Thomson,  and  determined  to  await  the  return  of  his  messenger  off 
the  coast.  In  this  interval,  how^ever,  he  entered  the  Capes,  but  sailed 
out  of  them  again,  without  coming  to  anchor.  The  mate  never  re- 
turned, he  being  seized  in  Norfolk,  as  a  prisoner  of  war.  Two  days 
after  the  mate  had  been  landed,  while  the  Patriot  was  lying  off  on  the 
coast,  about  ten  miles  from  land,  and  about  forty  south  of  the  Capes, 
she  fell  in  with  a  pilot  boat,  and  took  a  'pilot  on  board.  The  super- 
cargo says,  that  he  at  first  declined  taking  a  pilot  on  board,  as  the 
vessel  was  not  bound  inward,  but  was  persuaded  by  the  pilot  to  do 
so,  who  represented  the  probability  of  an  approaching  storm  from  the 
coast.  To  avoid  this  storm,  he  determined  to  await  within  the  Capes 
for  instructions.  The  pilot  taken  on  board,  who  was  an  apprentice 
of  the  owner  of  the  boat,  denies  that  such  advice  was  given.  The  ves- 
sel was  brought  within  the  Capes,  with  the  knowledge  of  L/awson,  the 
owner  and  supercargo. 

On  its  being  known  in  Norfolk,  that  a  British  vessel  was  off  the 
Capes,  the  revenue  cutter  was  sent  to  take  her,  and  fell  in  with  her, 
about  three  miles  within  the  Capes,  in  the  road  leading  to  Lynhaven 
Bay,  and  also  to  Hampton  Roads.  She  was  brought  into  Norfolk 
and  libelled. 

The  first  allegation  of  the  libel  is,  that  she  was  a  British  schooner, 
which  had  come  within  the  limits  and  territories  of  the  United  States 
of  America,  having  on  board  a  cargo  of  the  growth,  etc.,  of  a  de- 
pendency of  Great  Britain,  to  wit,  of  the  island  of  Guadaloupe. 

The  second  allegation  is,  that  the  cargo  was  imported  into  the 
United  States,  contrary  to  the  true  intent  and  meaning  of  the  acts 
of  Congress. 

The  third  charge  alleges,  that  the  cargo  was  taken  on  board,  for  the 
purpose  of  being  imported  into  the  United  States,  with  the  knowledge 
of  the  owner.     *     *     * 

The  forfeiture  of  the  vessel  and  cargo,  is  claimed  under  the  third 
section  of  the  act  /'to  interdict  the  commercial  intercourse  between 
the  United  States,  and  Great  Britain,  and  France,  and  for  other  pur- 
poses," which  was  passed  on  the  1st  of  March,  1809,  and  was  re- 
enacted  "against  Great  Britain,  her  colonies  and  dependencies,"  on 
the  2d  of  March,  1811.^ 

By  the  third  section  of  the  act  of  1809,  the  entrance  into  the  har- 
bours and  welters  of  the  United  States  is  interdicted  to  all  ships  or 
other  vessels,  sailing  under  the  flag  of  Great  Britain,  or  France,  or 

2  2  Story's  L.  T.  S.  c.  91,  §  3,  p.  1115,  and  Id.  c.  9G,  p.  11S7. 


488  MEASURES   OF   REDRESS   IN   TIME   OF   PEACE  (Part  2 

owned,  in  whole  or  in  part,  by  any  subject  or  citizen  of  either.  And 
if  any  such  vessel  shall  "arrive,  either  with  or  without  a  cargo,  wdth- 
in  the  limits  of  the  United  States,  or  of  the  territories  thereof,  such 
ship  or  vessel,  together  with  the  cargo,  if  any,  which  shall  be  found 
on  board,  shall  be  forfeited,"  etc. 

Under  this  section  the  Patriot,  which  was  a  British  vessel,  and  her 
cargo,  part  of  which  belonged  to  citizens  of  the  United  States,  were 
condemned  in  the  District  Court. 

The  claimants  have  appeared,  and  contend  that  this  sentence  is  er- 
roneous ;    because, 

1st.  The  Patriot  had  not  arrived  within  the  limits  of  the  United 
States,  at  the  time  when  she  was  seized  by  the  revenue  cutter. 

The  term  "a/rival,"  when  applied  Vo  a  vessel,  is  said  to  be  equivalent 
to  the  term  "importation,"  when  applied  to  goods ;  and  a  vessel 
cannot  be  properly  said  to  have  arrived,  within  the  meaning  of  the 
act,  whose  cargo  might  not,  with  equal  propriety,  be  said  to  be  im- 
ported. 

Without  denying  or  affirming  that,  in  the  laws  of  Congress,  the 
term  "importation,"  when  applied  to  a  cargo,  is  precisely  equivalent 
to  the  term  "arrival,"  when  applied  to  a  vessel,  I  will  inquire,  whether 
the  meaning  of  the  word  itself  be  in  any  manner  ambiguous.  "To 
arrive"  is  a  neuter  verb,  which,  when  applied  to  an  object  moving 
from  place  to  place,  designates  the  fact  of  "coming  to"  or  "reaching' 
one  place  from  another,  or  of  coming  to  or  reaching  a  place  by  trav- 
elling, or  moving  towards  it.  If  the  place  be  designated,  then  the  ob- 
ject which  reaches  that  place  has  arrived  at  it.  A  person  who  is  com- 
ing to  Richmond,  has  arrived  when  he  enters  the  city.  But  it  is  not 
necessary  to  the  correctness  of  this  term,  that  the  place  at  which  the 
traveller  arrives  should  be  his  ultimate  destination,  or  the  end  of  his 
journey.  A  person  going  from  Richmond  to  Norfolk,  by  water,  ar- 
rives within  Hampton  Roads,  when  he  reaches  that  place;  or,  if  he 
diverges  from  the  direct  course,  he  arrives  in  Petersburg,  when  he 
enters  that  town.  This  is,  I  believe,  the  universal  understanding  of 
the  term.  Thus,  the  duty  law  requires,  that  the  master  of  every  ves- 
sel bound  to  Bermuda  Hundred,  or  City  Point,  shall,  on  his  arrival 
in  Hampton  Roads,  or  at  Sewall's  Point,  deposit  his  manifest  with  the 
collector  of  Norfolk,  or  of  Hampton.  It  also  requires,  that  the  mas- 
ter of  any  vessel,  bound  to  any  port  of  the  United  States,  shall,  on 
his  arrival  within  four  leagues  of  the  coast,  upon  demand,  produce 
his  manifest,  in  writing,  to  any  officer  of  the  customs  who  shall  first 
come  on  board.  No  person  can  doubt,  that  in  the  first  case,  the  ves- 
sel bound  to  City  Point,  has  arrived  in  Hampton  Roads,  when  she 
enters  the  Roads ;  and  that  a  vessel  bound  to  any  port  of  the  United 
States,  say  to  Boston,  has  arrived  within  four  leagues  of  the  coast, 
when  she  comes  within  that  distance  of  land.  It  would  be  useless  to 
multiply  quotations  on  this  point,    ^he  literal  sense  of  the  word  seems 


Ch.  1)  NOXINTERCOURSE  489 

too  plain  for  controversy.  When  the  law  enacts,  that  a  British  vessel, 
w^hich  arrives  within  the  limits  of  the  United  States  shall  be  forfeited, 
the  forfeiture  attaches,  according  to  its  letter,  the  instant  that  a  ves- 
sel comes,  voluntarily,  within  those  limits.  Now,  whatever  doubt  may 
exist  respecting  the  application  of  this  term  to  any  part  of  the  open 
sea,  no  doubt,  I  believe  has  ever  been  suggested  respecting  the  Chesa- 
peake Bay.  That  bay  is  clearly  within  the  limits  of  the  United  States ; 
and  the  forfeiture,  under  the  letter  of  the  act,  is  as  complete  as  if  it 
had  attached,  by  the  words,  on  her  arrival  within  the  Chesapeake  Bay. 

Is  the  spirit  of  the  law  more  favourable  to  the  claim  than  its  let- 
ter? By  the  spirit  of  the  law,  I  understand,  the  intention  of  the  leg- 
islature, to  be  collected  from  the  general  language  of  the  act,  the 
scope  of  its  provisions,  and  the  objects  to  be  attained. 

The  object  of  this  section  cannot  be  doubted.  It  is  to  exclude  all 
vessels  owned  by  British  subjects,  from  the  waters  of  the  United 
States.  Its  language  conveys  this  intention,  and  is  obviously  calcu- 
lated to  carry  it  into  full  effect.  The  other  sections  of  the  law,  which 
are  designed  to  prohibit  all  intercourse  with  Great  Britain,  and  to  ex- 
clude all  British  goods,  show  a  rigorous  determination  on  this  whole 
subject,  which  forbids  the  suspicion  that  the  intention  of  the  legisla- 
ture, or  in  other  words,  the  spirit  of  the  law,  is  more  favourable  to 
the  claimants  than  its  letter. 

If  this  be  the  object  of  the  act,  can  we  doubt  that  it  would  have 
been  completely  defeated  by  allowing  British  vessels  to  come  tmmo- 
lested  within  the  Chesapeake,  and  the  other  bays  of  the  United  States? 
If  the  Patriot  might  enter  the  Chesapeake  with  impunity,  where  is 
the  line  drawn,  or  who  has  drawn  it,  which  she  might  not  pass  ?  Might 
she  not  pass  the  mouth  of  the  James,  the  York,  the  Rappahannock,  or 
the  Potomac?  Are  any  of  these  points  more  certainly  within  the 
limits  of  the  United  States,  than  this  middle  ground  within  the  Capes  ? 
And  if  British  vessels,  laden  with  British  goods,  might  with  impunity 
lie  within  the  Chesapeake,  and  the  other  bays  of  the  United  States, 
what  would  become  of  the  Nonintercourse  Act? 

The  Patriot  being  completely  within  the  enacting  clause,  it  is  scarce- 
ly necessary  to  say  that  she  has  not  brought  herself  within  the  excep- 
tion. She  was  not  "forced  in  by  distress,  or  by  the  dangers  of  the 
sea."  The  only  allegation  which  looks  towards  this  subject  is,  that 
the  owner  was  advised  to  take  a  pilot  on  board,  because  a  storm  might 
be  expected.  No  storm  had  commenced.  All  was  fair.  But  the  pilot 
said  one  might  be  expected.  Even  this  is  denied  by  the  pilot  who  was 
put  on  board.  But,  admitting  the  allegation  to  be  true  in  its  utmost 
extent,  can  this  imagined  fear,  this  apprehension  of  uncertain  danger, 
satisfy  the  words,  "forced  in  by  the  dangers  of  the  sea"?  If  they 
may,  language  seems  to  have  lost  its  use,  and  I  am  persuaded  that 
nonintercourse  laws  would  do  very  little  good  or  harm. 


490     ^  MEASURES   OF   REDRESS   IN   TIME   OF   PEACE  (Part  2 

I  think,  then,  it  cannot  be  doubted,  that  the  Patriot,  being  stated  in 
the  claim  to  have  belonged  to  a  British  subject,  comes  within  the  third 
section  of  the  act.  This  would  be  my  opinion,  were  it  a  case  of  the 
first  impression.  But  the  point  is,  I  think,  decided  in  The  Penobscot, 
7  Cranch,  356,  3  h.  Ed.  369. 

2d.  The  second  point  made  for  the  claimants  is,  that  the  Noninter- 
course  Act  of  1809,  was  not  re-enacted  by  the  Act  of  March  2,  1811, 
so  far  as  respected  British  vessels.  Although  the  third  section  of  that 
act  is  expressly  re-enacted,  yet  its  re-enactment  is  limited.  It  is  to 
be  carried  into  effect,  "against  Great  Britain,  her  colonies,  and  de- 
pendencies." So  much  of  the  act,  then,  as  relates  merely  to  British 
vessels,  has  been,  it  is  said,  permitted  to  expire.  This  strict  exposi- 
tion of  the  words  is  the  more  to  be  insisted  on,  because  the  law  is 
highly  penal. 

Let  this  argument  be  examined. 

The  original  act  respected  equally  the  vessels  of  France  and  Britain, 
and  articles  of  their  growth,  produce,  or  manufacture.  Its  object 
was  to  interdict  the  entrance  into  the  waters  of  the  United  States,  to 
the  vessels  of  both  nations,  and  to  forbid  all  commercial  intercourse 
with  either  of  them.  The  1st  and  2d  sections  of  the  act,  relate  solely 
to  national  ships.  The  3d  section  is  confined  to  vessels  owned,  wholly, 
or  in  part,  by  the  subjects  of  Great  Britain,  or  of  France.  The  4th, 
5th,  and  other  sections,  relate  to  the  dominions,  etc.,  of  the  two 
countries,  and  to  articles  which  are  the  growth,  produce,  or  manu- 
facture of  either.  They  also  contain  provisions,  calculated  to  secure 
the  exclusion  of  those  articles  from  the  United  States. 

After  making  a  painful  experiment  of  the  restrictive  system  against 
both  nations,  the  law  was  permitted  to  expire,  and  the  policy  of  the 
United  States  was  in  some  degree  varied.  An  act  was  passed  on  the 
1st  of  May,  1810,  promising,  that  if  either  beligerent  would  so  revoke 
or  modify  its  edicts,  that  they  should  cease  to  violate  the  neutral  com- 
merce of  the  United  States,  the  sections  of  the  nonintercourse  law, 
which  have  been  recapitulated,  should,  three  months  thereafter,  be 
"revived,  and  have  full  force  and  effect,  so  far  as  relates  to  the  do- 
minions, colonies,  and  dependencies,  and  to  the  articles,  the  growth, 
produce,  or  manufacture  of  the  dominions,  colonies,  and  dependen- 
cies, of  the  nation  refusing  or  neglecting  to  revoke,  or  modify,  her 
edicts,  in  the  manner  aforesaid." 

The  President  having  issued  his  proclamation,  on  the  2d  of  Novem- 
ber, 1810,  announcing,  as  a  fact,  that  the  decrees  of  France  were  re- 
voked, as  required  by  the  act  of  the  1st  of  May  preceding,  Congress, 
on  the  2d  of  March,  1811,  passed  the  act  under  which  the  Pa- 
triot and  her  cargo  have  been  condemned.  The  case  depends  on  the 
question,  whether  the  3d  section  is  re-enacted  so  far  as  respects 
British  vessels. 


Ch.  1)  NONINTERCOURSE  491 

The  language  of  the  law,  certainly,  does  not  import  a  complete  re- 
enactment  of  the  whole  of  those  sections.  They  are  in  terms  re- 
enacted,  "against  Great  Britain,  her  colonies,  and  dependencies."  The 
question,  whether  these  words  comprehend  the  interdiction  of  our  wa- 
ters, to  vessels  ov/ned  by  British  subjects,  is  undoubtedly  open  for 
argument,  and  for  consideration.  In  deciding  it,  we  must  search  by 
legitimate  means  for  the  intention  of  the  legislature,  and  be  guided 
by  that  intention.  Was  it  the  intention  of  the  legislature  to  revive 
the  whole  act,  so  far  as  it  respected  Great  Britain,  with,  perhaps,  the 
exception  of  its  territorial  operation,  which  may  be  created  by  omit-  • 
ting  its  provision  respecting  her  possessions?  Or  only  to  revive  those 
parts  of  the  act,  which  relate  exclusively  to  those  breaches  of  it,  which 
are  connected  with  territory?  Such,  for  example,  as  importing  a 
cargo  from  "Great  Britain,  her  colonies,  or  dependencies"? 

That  the  act  of  1809  is  not  revived  generally,  is  satisfactorily  ac- 
counted for,  when  we  recollect  that  it  was  originally  directed  against 
both  Great  Britain  and  France,  and  that  the  legislature  designed  to 
re-enact  it  against  Great  Britain  only.  If  we  advert  to  this  fact,  and 
recollect  the  history  of  the  times,  we  shall  be  but  little  inclined  to  the 
opinion,  that  Congress  could  have  intended  to  leave  our  ports  open 
to  British  vessels,  when  all  commercial  intercourse  between  the  two 
countries  was  prohibited.  It  seems  impossible  to  assign  a  motive  for 
this  particular  relaxation.  The  policy  of  the  United  States,  was  di- 
rected with  at  least  as  much  earnestness  against  the  navigation,  as 
against  the  manufactures,  of  Great  Britain.  But  what  seems  conclu- 
sive on  this  point  is,  that  the  section  is  expressly  revived,  and  yet  con- 
tains not  one  word  which  relates  to  the  territories  of  Great  Britain, 
its  colonies,  or  dependencies.  The  section  is  limited  to  ships  owned 
wholly  or  in  part  by  British  subjects.  Consequently,  it  applies  to  those 
vessels  or  to  nothing. 

The  legislature  might  have  revived  the  3d  section  only.  Had  this 
been  done,  could  it  have  been  said  that  it  was  not  revived  as  to  ves- 
sels, because  it  was  said  to  be  revived  against  Great  Britain,  her  col- 
onies, and  dependencies?  Not  a  syllable  in  the  section  relates  to  col- 
onies and  dependencies ;  and  not  a  syllable  to  Great  Britain,  except 
the  prohibition  to  her  vessels.  To  have  said  in  that  case,  that  the  sec- 
tion was  not  revived  as  to  vessels,  would  have  been  to  ascribe  to  the 
legislature  a  declaration,  that  a  particular  section  should  be  revived 
in  a  manner  to  have  no  effect  whatever;  or  to  make  a  law,  with  an 
exception  co-extensive  with  its  whole  enactment.  Such  a  construc- 
tion must  be  totally  inadmissible.  The  actual  case  is  stronger  than 
that  supposed,  because,  in  the  actual  case,  other  sections  are  revived, 
which  might  suggest  a  propriety  of  adding  the  words  "colonies  and 
dominions"  to  Great  Britain. 

It  cannot,  I  think,  be  necessary  to  add  anything  to  this  argu- 
ment.    *     *     ♦ 


492  MEASURES   OF   REDRESS   IN   TIME   OF   PEACE  (Part  2 

An  argument  which  produces  the  only  serious  doubt  which  can  arise 
in  this  case,  remains  to  be  noticed.  It  is,  that  the  3d  section  of  the 
Noninter course  Act  was  repealed  by  the  declaration  of  war.     *     *     * 

I  have  considered  this  case  with  no  disposition  favourable  to  the 
condemnation  of  this  cargo.  But,  according  to  the  view  I  have  taken 
of  the  subject,  the  cargo  is  liable  to  forfeiture,  in  consequence  of  being 
in  a  British  vessel,  which  has  arrived  within  the  limits  of  the  United 
States,  while  the  nonintercourse  law  was  in  force.  I  shall  not  regret 
it,  if  a  higher  tribunal  shall  be  of  a  dilterent  opinion. 

The  sentence  of  the  District  Court  is  affirmed  with  costs.' 

3  In  The  Sally,  8  Cranch,  382,  .384.  3  L.  Ed.  597  (1814)  Mr.  Justice  Story, 
speaking  for  the  Supreme  Court,  said: 

'•But  a  claim  is  interposed  by  the  United  States,  claiming  a  priority  of 
ri.iht  to  the  property  in  qiie.stion.  viid.n  the  ground  of  an  antecedent  forfei- 
ture to  the  United  States,  by  a  violation  of  the  Nonintercourse  Act  (of  March 
1,  1809,  §  5,  2  U.  S.  Stat.  529),  th^  goods  having  been  put  on  lx»ard  at  a  Brit- 
ish port,  with  an  intent  to  import  the  .<ame  into  the  United  States.  We  are 
all  of  opinion,  that  this  claim  ought  not  to  prevail.  The  municipal  forfeiture 
under  the  Nonintercourse  Act,  was  absorbed  in  the  more  general  operation  of 
the  law  of  war.  The  property  of  an  enemy  seems  hardly  to  be  within  the  pur- 
view of  mere  municipal  regulations,  but  is  confiscable  under  the  jus  gentium." 


Ch.  2)  EMBARGO  4:93 

CHAPTER  II 
EMBARGO 


SECTION  1.— NONHOSTILE 


THE  WILLIAM  KING. 
(Supreme  Court  of  the  United  States.  1S17.     2  Wheat.  148,  4  L.  Ed.  206.) 

Appeal  from  the  Circuit  Court  for  the  district  of  New  York.  A 
Hbel  was  filed  against  this  vessel,  in  the  District  Court  of  New  York, 
March,  1809,  for  a  breach  of  the  act  of  the  22d  of  December,  1807, 
laying  an  embargo,  and  the  several  acts  supplementary  thereto,  alleg- 
ing that  she  proceeded  from  Baltimore,  without  any  clearance  or  per- 
mit, bound  on  a  voyage  to  Exuma,  one  of  the  Bahama  islands,  where 
she  took  in  a  cargo  of  6,000  bushels  of  salt,  with  which  she  returned 
to 'New  York. 

The  claimants  admitted  the  fact  of  going  to  Exuma,  and  bringing 
away  the  salt,  but  alleged  that  it  was  from  necessity ;  that  the  brig  was 
regularly  bound  to  Boston,  but,  being  captured  soon  after  she  left 
Hampton  Roads,  by  a  British  privateer,  was  sent  to  Jamaica,  where 
she  sold  the  cargo  of  flour  which  she  had  on  board,  the  government  of 
that  colony  not  allowing  it  to  be  brought  off;  that  she  then  went  to 
Exuma. 

The  testimony  in  the  case  exhibited  the  following  summary:  About 
the  middle  of  October,  1808,  the  vessel  arrived  at  Baltimore  from 
Boston.  At  Baltimore,  she  took  on  board  a  cargo  of  upwards  of  1,600 
barrels  of  flour,  and  sailed  again,  ostensibly  for  Boston,  about  the 
first  of  November.  On  reaching  Hampton  Roads,  she  stopped  a  few 
days,  being,  as  was  asserted,  wind-bound.  While  there,  a  British  pri- 
vateer, of  ten  guns  and  twelve  men,  called  the  Ino,  arrived  in  the 
Roads.  On  the  eighth  of  the  month,  the  brig  put  to  sea,  the  Ino  fol- 
lowing her.  On  the  afternoon  of  the  same  day,  the  Ino  captured  her, 
within  ten  leagues  of  the  shore,  putting  a  prize-master  and  one  man 
on  board;  the  vessels  then  proceeded  to  the  ^^'est  Indies.  During  the 
voyage,  no  attempt  was  made  by  the  crew  either  to  retake  the  brig  or 
to  escape,  though  favorable  opportunities  were  not  wanting ;  her  crew 
consisted  of  nine  persons.  After  a  short  separation  from  the  priva- 
teer, the  brig  arrived  off  St.  Nicholas  Mole;  here  the  privateer  joined 
her,  and  thence  the  two  went  to  Kingston.  No  prize  proceedings  were 
instituted  against  the  brig;  but,  on  the  contrary,  the  supposed  captors 


494  MEASURES   OP   REDRESS   IN   TIME   OF   PEACE  (Part  2 

relinquished  all  claim  to  their  prize,  on  reaching  Kingston.  From 
Kingston,  she  went  to  Exuma,  as  above  stated.  The  District  Court, 
on  the  hearing,  pronounced  a  sentence  of  condemnation ;  a  decree  of 
affirmance,  pro  forma,  was  entered  in  the  Circuit  Court,  from  which 
the  cause  was  brought,  by  appeal,  to  this  court. 

Johnson,  Justice,  delivered  the  opinion  of  the  court.* 

This  case  comes  up  on  appeal  from  the  Circuit  Court  of  New  York, 
The  vessel  is  the  same  which  makes  her  appearance  in  the  case  of 
The  Short  Staple,  9  Cranch,  55,  3  L.  Ed.  655,  decided  in  this  court  at 
February  term,  1815;  and  it  has  been  contended,  that  the  acquittal 
in  that  case  is  conclusive  upon  this.  But  we  think  otherwise.  It  might 
with  more  propriety  be  contended,  that  had  the  hearing  of  this  cause 
come  on  together  with  that  of  The  Short  Staple,  the  latter  would  have 
found  much  more  difficulty  in  escaping.  As  it  was,  the  division  of  the 
court,  and  the  acknowledgment  of  the  judge  who  delivered  the  opin- 
ion, show  that  the  vessel  in  that  case  was  "hardly  saved."  In  the  pres- 
ent cause,  there  is  very  material  evidence,  which  did  not  appear  in,  and 
could  not  affect,  the  former.  We  shall,  therefore,  dispose  of  this  case 
altogether  upon  the  evidence  that  is  peculiar  to  it. 

It  will  be  recollected,  that  this  vessel,  as  well  as  the  Short  Staple, 
were  libeled  for  a  violation  of  the  Embargo  Act  of  the  22d  of  Decem- 
ber, 1807,  and  the  supplementary  act  of  the  9th  of  January,  1808,  the 
former  of  which  enacts,  "that  an  embargo  shall  be  laid  on  all  ships 
and  vessels  in  the  ports  of  the  United  States,  bound  on  a  foreign  voy- 
age," and  the  latter  forfeits  the  vessel  that  shall  proceed  to  any  for- 
eign port  or  place,  "contrary  to  the  provisions  of  this  act,  or  of  the 
act  to  which  this  is  a  supplement."  As  the  majority  of  the  court 
were  of  opinion  that  no  offence  was  committed  in  the  case  of  The  Short 
Staple,  it  was  unnecessary  to  express  any  opinion  on  the  application 
of  the  law.    They,  therefore,  waived  it. 

But,  in  this  case,  it  becomes  necessary  to  lay  down  the  following 
principles :  There  can  be  no  doubt,  that  if  the  WiUiam  King  was  car- 
ried off  to  Jamaica,  by  actual  force,  it  was  an  act  which  wanted  the  con- 
currence of  the  will,  and  therefore  innocent.  But  whatever  is  done 
in  fraud  of  a  law,  is  done  in  violation  of  it ;  ^  and  if  a  vessel,  with 
an  original  intention  to  go  to  a  foreign  port,  complied  with  the  requisi- 
tion necessary  to  obtain  a  clearance  on  a  voyage  coastwise,  this  is  but 
the  device  by  which  she  eludes  the  force  that  would  otherwise  have 
prevented  her  departure  from  the  port. 

Was,  then,  the  sailing  to  a  foreign  port  a  prohibited  act,  under  the 
embargo  law,  to  a  registered  or  sea-letter  vessel?  If  so,  the  commis- 
sion of  such  an  act  was  a  cause  of  forfeiture  under  the  Act  of  Janu- 
ary 9,  1808.  And  here,  the  only  doubt  is,  whether  the  words,  "an 
embargo  shall  be  laid,"  operate  any  further  than  to  impose  a  duty  upon 

1  Parts  of  the  opinion  are  omitted. 

s  Lee  V.  Lee,  8  Pet.  44,  8  L,  Ed.  860  (1834). 


Ch.  2)  EMBARGO  495 

the  public  officers,  to  prevent  the  departure  of  a  registered  or  sea-letter 
vessel  on  a  foreign  voyage.  The  language  of  the  act  is  certainly  not 
very  happily  chosen;  but  when  we  look  into  the  definition  of  the 
word  embargo,  we  find  it  to  mean  "a  prohibition  to  sail."  Substituting 
this  periphrasis  for  the  word  "embargo,"  it  reads  "a  prohibition  to  sail 
shall  be  imposed,"  etc.,  or,  in  other  words,  "such  vessels  shall  be  pro- 
hibited to  sail,"  which  words,  had  they  been  used  in  the  act,  would  have 
left  no  scope  for  doubt. 

The  only  facts  which  it  will  be  necessary  to  notice  in  this  case,  in 
order  to  show  the  grounds  of  our  decision,  are  these :  The  Ino,  the  sup- 
posed capturing  vessel,  sailed  from  Guernsey,  for  Boston,  in  Septem- 
ber, 1808.  She  bore  an  English  commission,  and  is  commonly  called  a 
British  privateer.  But  as  there  exists  no  distinction,  that  we  know  of, 
between  a  privateer  and  letter  of  marque,  but  what  results  from  their 
equipments  and  habits,  and  as,  although  she  mounted  ten  guns,  she 
had  but  twelve  men,  and  confessedly  came  to  Boston  for  a  cargo,  we 
are  induced  to  think,  that  her  habits  were  rather  commercial  than 
roving.  These  three  vessels  lay  in  Boston  harbor,  some  time,  together ; 
the  two  brigs  sailed,  within  a  few  days  of  each  other,  bound  to  Bal- 
timore, for  a  cargo  of  flour,  and  the  Ino  sailed  soon  after.  As  the  em- 
bargo prevented  her  taking  in  a  cargo,  as  such,  the  master  cleared  out 
for  the  Cape  of  Good  Hope,  and  was  permitted  to  take  in  a  large  stock 
of  provisions  as  for  a  long  voyage;  buf  the  master  admits,  that  he 
was,  in  fact,  bound  to  Jamaica,  and  sailed  for  that  port,  and  affected 
to  be  destined  to  the  Cape,  in  order  to  get  permission  to  take  in  a  large 
stock  of  provisions,  because  he  knew  provisions  in  the  West  Indies 
to  be  dear.  In  the  mean  time,  the  two  brigs  had  taken  in  a  cargo  at 
Baltimore,  and  cleared  out  for  Boston ;  but,  as  they  allege,  on  account 
of  contrary  winds,  they  put  into  Hampton  Roads,  where  they  remained 
from  the  1st  of  November  to  the  8th  of  the  same  month.  Whilst  the 
two  brigs  lay  in  Hampton  Roads,  the  Ino  also  put  into  the  same  port 
and  the  reason  alleged  for  doing  so  is,  that  after  leaving  the  port  of 
Boston,  she  encountered  high  winds,  which  carried  away  her  main- 
boom,  and  finding  herself  in  the  latitude  of  the  Capes  of  Virginia,  she 
put  in,  to  obtain  a  spar  for  a  boom.     *     *     * 

Three  days  after  the  arrival  of  the  Ino,  the  two  brigs  sailed;  the 
Ino  immediately  pursued,  overhauled  them  before  night,  put  a  prize- 
master  and  one  man  on  board  the  William  King,  a  prize-master  and 
two  men  in  the  other,  and  ordered  them  for  Jamaica,  with  instructions 
to  rendezvous  at  St.  Nicholas  Mole,  if  separated.  Being  overhauled, 
on  this  voyage,  by  the  Garland  [a  British]  frigate,  the  Ino  fled,  and  the 
brigs  were  examined.  But  being  liberated,  they  proceeded  to  Cape 
Nicholas  Mole,  where  the  Ino  joined  them,  and  leaving  the  Short  Staple 
there,  the  Ino  and  this  vessel  proceeded  to  Jamaica.  Off  that  place, 
the  Ino  restored  a  man  which  she  had  taken  from  the  William  King, 
and  putting  also  the  owner,  Southcote,  into  her,  she  bore  away,  whilst 


496  MEASURES   OF   REDRESS   IN   TIME   OF   PEACE  (Part  2 

the  William  King  entered  the  harbor  of  Kingston.  There  she  was  given 
up  to  the  master,  who,  as  it  is  alleged,  was  refused  permission  by  the 
government  to  sail  with  his  cargo,  was  obliged  to  sell  it,  and  obtained 
about  $20  clear  per  barrel,  for  what  had  cost  five  or  six  dollars  at 
Baltimore. 

So  far  the  evidence  stands  unimpeached ;  it  constituted,  in  fact,  the 
defence  of  the  claimant.  But  at  the  trial  below,  in  this  cause,  a  wit- 
ness was  produced  in  behalf  of  the  prosecution,  of  the  name  of  Gustaff 
Forsberg,  who  went  out  mate  of  the  William  King,  and  who,  among 
a  variety  of  facts,  testifies  to  the  following:  That  when  the  William 
King  sailed  from  Boston,  she  carried  off  a  Vineyard  pilot,  not  having 
been  able  to  land  him;  and  that  previous  to  her  leaving  Baltimore, 
this  pilot  was  put  on  board  the  Federal  George,  Captain  Field,  then  tak- 
ing in  a  cargo  of  flour  for  Boston,  with  a  request  from  the  master  of 
the  William  King,  to  return  him  to  Boston,  and  the  brig  then  sailed, 
without  a  Boston  pilot.  That,  after  putting  into  Hampton  Roads,  the 
masters  of  the  two  brigs  went  up  to  Norfolk,  and  did  not  return,  until 
the  evening  before  they  sailed ;  that  this  was  the  true  cause  of  their 
detention  in  that  port,  as  vessels  went  to  sea,  whilst  they  lay  there, 
and  the  winds  would  have  admitted  of  their  doing  the  same.  That, 
after  the  capture  by  the  Ino,  this  witness  intimated  his  intention  to  do 
no  more  duty,  as  he  was  then  a  prisoner ;  and  was  prevailed  upon  by 
the  master  to  return  to  duty,  by  having  his  wages  raised  from  $9  to 
$20,  which  alteration  v/as  entered  on  the  shipping  articles.  That  the 
man  put  on  board  with  the  prize-master  was  called  Colonel  Kirkland, 
was  not  a  seaman,  and  that  Captain  R.  Daniel,  of  the  William  King, 
still  navigated  the  vessel,  the  prize-master  exercising  no  authority,  and 
this  witness  keeping  the  log-book,  vmder  the  directions  of  the  master. 
That  at  sea,  in  calm  weather,  the  master  and  owner  of  the  Ino,  and  the 
masters  of  the  two  brigs,  met  and  amused  themselves,  in  each  other's 
vessels ;  that  on  their  sailing  from  Jamaica,  they  took  on  board  a  num- 
ber of  articles,  some  of  which  were  marked  Ino;  that  Southcote,  the 
owner  of  the  Ino,  came  out  with  them  as  passenger;  that  the  day  after 
they  left  Kingston,  they  fell  in  with  the  Ino,  and  put  on  board  of  her, 
her  owner,  and  the  articles  taken  on  board  at  Kingston,  with  the  ex- 
ception of  certain  parcels  of  bagging,  which  they  took  out  with  them 
to  Exuma,  for  the  purpose  of  taking  in  salt.  And  lajtly,  that  after 
their  arrival  in  New  York,  the  master  decoyed  him  on  board  a  packet, 
and  hurried  him  off,  without  his  clothes,  to  Boston,  and  particularly 
cautioned  him  to  be  on  his  guard  to  say  nothing  to  any  one,  but  what 
had  been  entered  on  the  log-book,  and  informing  him,  that  if  he  re- 
mained in  New  York,  he  would  be  put  in  jail. 

It  is  evident,  that  these  circumstances,  taken  together,  afford  very 
ample  ground  for  condemnation.  There  could  be  no  reason  urged,  for 
putting  the  Mneyard  pilot  on  board  another  vessel,  which  was  not  yet 
ready  for  sea,  if  the  master  of  this  vessel  had  really  intended  to  return 


Ch.  2)  EMBARGO  497 

to  Boston ;  and  abandoning  their  vessels  for  five  or  six  days  in  Hamp- 
ton Roads,  looks  too  much  like  waiting  for  the  expected  convoy ;  whilst 
leaving  the  navigation  of  this  vessel,  and  the  keeping  of  the  log-book, 
to  the  original  master  and  mate,  presents  a  state  of  confidence  incon- 
sistent with  all  idea  of  hostility.  And  this  confidence  is  further  con- 
spicuous in  all  the  subsequent  occurrences  to  which  this  witness  testi- 
fies. Independently  of  his  testimony,  the  case  is  loaded  with  suspicious 
circumstances,  but  his  testimony  leads  to  conviction. 

Aware  of  this,  the  counsel  for  the  claimants  have  contented  them- 
selves with  attacking  his  credibility.  But  after  duly  weighing  all  the 
circumstances  insisted  on  in  the  argument,  we  are  of  opinion,  that  as  to 
several  material  facts,  his  testimony  pointed  out  the  means  of  detec- 
tion, if  it  was  not  consistent  with  the  truth.     *     *     * 

Upon  the  whole,  the  court  are  of  opinion,  that  the  capture  was  ficti- 
tious, and  that  the  decision  below  must  be  affirmed. 

Decree  affirmed. 


SECTION  2.— HOSTILE 


THE  BOEDES  LUST. 

(High  Court  of  Admiralty,  1804.    5  C.  Rob.  233.) 

This  was  the  case  of  a  Dutch  ship  on  a  voyage  from  Demerara  to 
Batavia,  embargoed  at  the  Cape  of  Good  Hope  by  an  English  squad- 
ron before  the  actual  declaration  of  war  against  Holland  in  1803,  and 
afterwards  condemned  as  enemy's  property. 

Sir  William  Scott.^  *  *  *  f\^\^  ^vas  the  state  of  the  first 
seizure.  It  was  at  first  equivocal ;  and  if  the  matter  in  dispute  had 
terminated  in  reconciliation,  the  seizure  would  have  been  converted 
into  a  mere  civil  em.bargo,  so  terminated.  That  would  have  been  the 
retroactive  efifect  of  that  course  of  circumstances.  On  the  contrary, 
if  the  transactions  end  in- hostility,  the  retroactive  effect  is  directly  the 
other  way.  It  impresses  the  direct  hostile  character  upon  the  original 
seizure.  It  is  declared  to  be  no  embargo ;  it  is  no  longer  an  equivocal 
act,  subject  to  two  interpretations;  there  is  a  declaration  of  the  ani- 
mus, by  which  it  was  done,  that  it  was  done  hostili  animo,  and  is  to 
be  considered  as  an  hostile  measure  ab  initio.  The  property  taken  is 
liable  to  be  used  as  the  property  of  persons,  trespassers  ab  initio,  and 
guilty  of  injuries,  which  they  have  refused  to  redeem  by  any  amicable 
alteration  of  their  measures.  This  is  the  necessary  course,  if  no  par- 
ticular compact  intervenes  for  the  restitution  of  such  property  taken 
before  a  formal  declaration  of  hostilities.     No  such  convention  is  set 

8  Parts  of  the  opinion  are  omitted. 
Scon  I  NT.  Law — 32 


498  MEASURES   OF   REDRESS   IN   TIME   OF   PEACE  (Part  2 

up  on  either  side,  and  the  state,  by  directing  proceedings  against  this 
property  for  condemnation,  has  signified  a  contrary  intention.  Ac- 
cordingly, the  general  mass  of  Dutch  property  has  been  condemned 
on  this  retroactive  effect ;  and  this  property  stands  upon  the  same 
footing  as  to  the  seizure,  for  it  was  seized  at  the  same  time,  and  with 
the  same  intent.  There  is  no  ground  of  distinguishing  the  time  of  seiz- 
ure, between  these  claims  and  former  cases  of  a  similar  nature;  it 
was  a  provisional  seizure  in  all,  declared  to  be  hostile  by  subsequent 
events,  acting  in  a  reflex  manner  upon  all  the  property  then  seized, 
and  declaring  it  to  be  all  enemy's  property,  unless  some  circumstances 
can  be  shown  to  take  these  particular  claims  out  of  the  common  oper- 
ation.    *     *     *  * 

4  See  the  earlier  decision  of  Sir  William  Scott  in  The  Gertruyda,  2  C. 
Eob.  211  (1799). 

"The  object  of  a  hostile  embargo  may  be  by  way  of  reprisal  to  obtain 
satisfaction  for  an  alleged  injury;  or,  it  may  be,  in  the  expectation  of  the 
outbreak  of  war,  to  get  possession  of  projyerty  which  will  presumably  be 
hostile,  for  the  purjiose  of  confiscating  it  later — after  the  actual  outbreak 
of  war.  Although  the  goveriimont  might  restore  such  property  at  the  break- 
ing out  of  war,  it  has  not  l>een  the  practice  to  do  so ;  and  hence,  as  Dana 
says,  embargo  'refers  itself  directly  to  the  question  of  the  right,  on  breaking 
out  of  war,  to  s^ze  .ships  a;id'-cargoes  found  in  port.'  Dana's  Wheaton,  p, 
372.  note.       Jl^  '  ^-^"^ 

"In  the  ca^  of  Lindo  v.  Rodney,  2  Douglas,  615^*^82),  Lord  Mansfield  said: 
'Ships  not  knowing  of  hostilities  come  in  by  mistake.  Upon  the  declaration  of 
war,  or  hostilities,  all  the  ships  of  the  enemy  are  detained  in  our  ports,  to 
be  confiscated  as  the  property  of  the  enemy,  if  no  reciprocal  agreement  is 
made.' 

"The  earlier  writers  upon  international  law  do  not  mention  embargo,  at 
least  in  the  sense  of  hostile  embargo.  Until  towards  the  end  of  the  last  cen- 
tury, there  was  really  no  distinction  made  between  property  found  on  land 
anri  that  found  afloat.  In  both  cases  it  was  liable  to  capture.  At  the  time 
of  Bynkershoek  and  of  Vattel,  private  property  of  the  enemy  was  confiscat- 
ed, though  some  treaties  had  exempted  it  from  seizure  at  the  commencement 
of  war.  Bynkershoek,  [quaestionum  juris  publici,  lib.]  I,  c.  II.  Bynkershoek 
mentions  many  cases,  too,  where  it  was  seized  before  the  declaration  of  war. 
It  was  left  to  the  English  admiralty  courts  to  formulate  the  practice  into  le- 
gal maxims  by  their  decisions.  As  to  the  retroactive  effect  of  a  declaration 
of  war  as  applied  by  the  courts,  it  is  apparently  a  necessary  invention  of 
Sir  William  Scott  to  legalize  a  practice  already  in  vogue."  Freeman  Snow, 
Cases  and  Opinions  on  International  Law  249,  250,  note  (1893). 

Scott  Int.Law 


Ch.  3)  RETALIATION  •  499 

CHAPTER  III 
RETALIATION 


THE  NEREIDE. 

(Supreme  Court  of  the  United  States,  1S15.  9  Cranch,  3S8,  3  L.  Ed.  769.) 

Marshall,  C.  J./  delivered  the  opinion  of  the  court  as  follows: 

In  support  of  the  sentence  of  condemnation  in  this  case,  the  captors 
contend:  i.  *  *  *  2.  *  *  *  3.  That  on  the  principles  of 
reciprocity  this  property  should  be  condemned.     4,     *     *     * 

3.  The  third  point  made  by  the  captors  is,  that  whatever  construc- 
tion might  be  put  on  our  treaty  with  Spain,  considered  as  an  inde- 
pendent measure,  the  ordinances  of  that  government  would  subject 
American  property,  under  similar  circumstances,  to  confiscation,  and 
therefore  the  property,  claimed  by  Spanish  subjects  in  this  case,  ought 
to  be  condemned  as  prize  of  war. 

The  ordinances  themselves  have  not  been  produced,  nor  has  the 
court  received  such  information  respecting  them  as  would  enable  it 
to  decide  certainly  either  on  their  permanent  existence,  or  on  their 
application  to  the  United  States.  But  be  this  as  it  may,  the  court  is 
decidedly  of  opinion  that  reciprocating  to  the  subjects  of  a  nation,  or 
retaliating  on  them,  its  unjust  proceedings  toward  our  citizens,  is  a 
political  not  a  legal  measure.  It  is  for  the  consideration  of  the  govern- 
ment not  of  its  courts.  The  degree  and  the  kind  of  retaUation  depend 
entirely  on  considerations  foreign  to  this  tribunal.  It  may  be  the 
policy  of  the  nation  to  avenge  its  wrongs  in  a  manner  having  no  affinity 
to  the  injury  sustained,  or  it  may  be  its  policy  to  recede  from  its  full 
rights  and  not  to  avenge  them  at  all.  It  is  not  for  its  courts  to  inter- 
fere with  the  proceedings  of  the  nation  and  to  thwart  its  views.  It  is 
not  for  us  to  depart  from  the  beaten  track  prescribed  for  us,  and  to 
tread  the  devious  and  intricate  path  of  politics.  Even  in  the  case  of 
salvage,  a  case  peculiarly  within  the  discretion  of  courts,  because  no 
fixed  rule  is  prescribed  by  the  law  of  nations,  congress  has  not  left  it 
to  this  department  to  say  whether  the  rule  of  foreign  nations  shall  be 
applied  to  them,  but  has  by  law  applied  that  rule.  If  it  be  the  will 
of  the  government  to  apply  to  Spain  any  rule  respecting  captures 
which  Spain  is  supposed  to  apply  to  us,  the  government  will  manifest 
that  will  by  passing  an  act  for  the  purpose.  Till  such  an  act  be  passed, 
the  court  is  bound  by  the  law  of  nations  which  is  a  part  of  the  law 
of  the  land.     *     *     *  2 

1  For  the  facts  of  this  case,  and  for  the  opinion  of  Chief  Justice  Mar- 
shall on  other  heads,  see  post,  p.  1014. 

^  "So  far  as  the  claim  is  made  that  the  relators  should  be  held  in  a  spirit  of 
comity  and  reciprocity,  we  can  only  say  that  the  comity  and  reciprocity  to 


500  MEASURES   OP   REDRESS  IN  TIME   OF   PEACE  (Part  2 

THE  FRANCES  AND  ELIZA. 

(Supreme  Court  of  the  United  States,  1S23.    8  Wheat.  39S ;    5  L.  Ed.  645.) 

Appeal  from  the  District  Court  of  Louisiana.  This  was  an  allega- 
tion of  forfeiture,  against  the  British  ship  Frances  and  Eliza,  in  the 
court  below,  for  a  breach  of  the  act  of  Congress  of  the  18th  of  April, 
1818,  c.  65,  the  first  section  of  which  is  in  these  words: 

"That  from  and  after  the  30th  day  of  September  next,  the  ports 
of  the  LT^nited  States  shall  be  and  remain  closed  against  every  vessel, 
owned,  wholly  or  in  part,  by  a  subject  or  subjects  of  his  Britannic  Ma- 
jesty, coming  or  arriving  from  any  port  or  place  in  a  colony  or  terri- 
tory of  his  Britannic  Majesty,  that  is  or  shall  be,  by  the  ordinary  laws 
of  navigation  and  trade,  closed  against  vessels  owned  by  citizens  of  the 
United  States ;  and  such  vessel,  that,  in  the  course  of  the  voyage,  shall 
have  touched  at,  or  cleared  out  from,  any  port  or  place,  in  a  colony  or 
territory  of  Great  Britain,  which  shall  or  may  be,  by  the  ordinary  laws 
of  navigation  and  trade  aforesaid,  open  to  vessels  owned  by  citizens 
of  the  United  States,  shall,  nevertheless,  be  deemed  to  have  come  from 
the  port  or  place  in  the  colony  or  territory  of  Great  Britain,  closed,  as 
aforesaid,  against  vessels  owned  by  citizens  of  the  United  States,  from 
which  such  vessel  cleared  out  and  sailed,  before  touching  at  and  clear- 


be  extended  to  representatives  of  foreign  governments  depends  upon  Congress. 
and  is  not  lodged  within  the  judiciary.  See  2  Op.  Atty.  Gen.  378,  citing  The 
Nereide,  9  Craueh.  389,  3  L.  Ed.  769  (1815)."  Pardee,  J.,  in  Re  Aubrey  (C.  C.) 
26  Fed.  848,  851  (1885). 

For  what  has  been  not  inaptly  called  judicial  reprisals,  see  The  Leonor, 
8  British  and  Colonial  Prize  Cases,  91,  111  (1916),  in  which  Mr.  Justice  Mar- 
tin said: 

"And  prize  courts  above  all  others  should  strive  to  be  truly  the  'mirror  of 
justice,'  and  be  particularly  careful  to  see  that  justice  in  its  highest  foi-m  is 
administered,  because  they  have  to  satisfy  the  sense  of  justice  not  only  of 
their  own  citizens  but  of  foreign  nations,  for  they  sit  to  administer  not  the 
municipal  law  of  their  own  country,  but  the  law  of  nations  in  times  of  war, 
when  the  minds  of  most  of  the  citizens  of  the  belligerent  nations  are  inflamed 
or  obsessed  by  passion  and  hatred,  and  few  possess  that  robustness  and 
breadth  of  mind  which  arc  essential  to  the  attainment  of  justice  in  such 
a  disturbed  mental  atmosphere.  How  conflicting  these  views  and  interests 
are  may  be  gathered  from  the  fact  that  even  in  the  two  cases  now  pending 
before  me  citizens  of  six  dilierent  nations  are  concerned  and  eighteen  dif- 
ferent claimants,  including  the  governor  of  a  state  of  Mexico.  I  maije  these 
observations  because,  in  recent  decisions  of  the  prize  court  in  London,  the 
learned  President  felt  it  to  be  his  duty  to  talie  the  extreme  step  between 
nations  of  denouncing  the  prize  courts  of  the  German  Empire  as  tribunals 
wherein  justice  cannot  be  obtained — vide  The  Kim,  [1915]  1  P.  Cas.  405,  at 
page  490;  [1915]  P.  215,  and  The  Pontoporus,  [1910]  2  P.  Cas.  87,  at  94-5; 
85  L.  .7.  P.  143 ;  [1916]  P.  100— in  the  former  of  which  he  charges  the  Ham- 
burg prize  court  as  being  one  which  'haclvs  "its  way  through  bona  fide  com- 
mercial transactions.'  All  impartial  jurists  will  lament  the  fact  that  this 
great  war  of  nations  should  have  invaded  their  courts  of  law,  and  for  that 
reason  British  prize  courts  should  be  careful  to  bear  in  mind  their  historic 
prestige,  and  give  no  excuse  for  judicial  reprisals  on  the  part  of  other  prize 
courts." 


Ch.  3)  RETALIATION  501 

ing  out  from  an  intermediate  and  open  port  or  place  as  aforesaid; 
and  every  such  vessel,  so  excluded  from  the  ports  of  the  United  States, 
that  shall  enter,  or  attempt  to  enter  the  same,  in  violation  of  this  act, 
shall,  with  her  tackle,  apparel  and  furniture,  together  with  the  cargo 
on  board  such  vessel,  be  forfeited  to  the  United  States." 

The  libel  set  forth,  in  the  words  of  the  act,  that  the  Frances  and 
Eliza  was  owned,  wholly  or  in  part,  by  subjects  of  his  Britannic  Ma- 
jesty, and  had  come  from  the  port  of  Falmouth,  in  the  Island  of  Ja- 
maica, a  colony  of  his  Britannic  Majesty,  which  port  was  closed  against 
citizens  of  the  United  States,  and  that  she  attempted  to  enter  the  port 
of  New  Orleans,  in  the  United  States,  contrary  to  the  provisions  of 
the  act  before  recited.  To  this  libel,  William  Coates,  master  of  the 
vessel,  put  in  an  answer,  denying  the  allegations  in  the  libel,  and  claim- 
ing her  as  the  property  of  Messrs.  Herring  &  Richardson,  of  London. 
The  material  facts  appearing  on  record,  are  these : 

The  Frances  and  Eliza  sailed  from  London,  i-n  the  month  of  Febru- 
ary, 1819,  for  South  America,  having  on  board  about  170  men  for  the 
service  of  the  patriots.  They  arrived  at  Margaritta,  in  April,  where 
the  troops  were  disembarked.  The  vessel  remained  on  the  coast  of 
Margaritta,  until  November,  when  Captain  Coates,  by  order  of  Mr. 
Gold,  agent  of  the  owners,  took  command  of  her.  *  *  *  Having  a 
scanty  supply  of  salt  provisions,  and  being  without  fresh  provisions, 
which  were  not  to  be  had  at  Margaritta,  he  did  not  sail  from  that  port 
until  the  8th  of  November.  Proceeding  on  the  voyage,  he  met  an  Amer- 
ican schooner,  off  the  west  end  of  St.  Domingo,  the  master  of  which 
supplied  him  with  a  cask  of  beef.  He  had,  at  this  time,  29  souls  on 
board ;  and  in  the  prosecution  of  the  voyage,  being  off  the  coast  of 
Falmouth,  in  the  island  of  Jamaica,  the  Frances  and  Eliza  hove  to, 
within  four  or  five  miles  of  the  shore,  and  the  master  went  into  Fal- 
mouth in  his  boat,  for  provisions,  of  which  they  were  much  in  want, 
having  only  three  days'  supply  on  board,  and  to  get  his  name  indorsed 
on  the  ship's  register ;  on  the  day  following,  he  returned  with  a  small 
supply,  which  being  insufficient,  he  went  again  the  next  morning,  to  en- 
deavor to  increase  his  stock,  and  succeeded  in  getting  enough  to  enable 
him  to  proceed  to  New  Orleans.  That  he  landed  one  passenger  at  Fal- 
mouth, and  took  two  from  thence  to  New  Orleans ;  the  passenger  land- 
ed, was  a  physician,  who  had  sailed  from  London  with  the  troops,  but 
left  the  service  in  distress,  and  took  his  passage  in  the  Frances  and  Eliza 
to  New  Orleans.  When  at  Falmouth,  he  found  his  professional  pros- 
pects there  favorable,  and  determined  to  remain ;  and  George  Glover, 
a  mariner,  had  leave  of  the  agent  of  the  owners  to  work  his  passage 
from  Margaritta  to  New  Orleans.  Upon  leaving  Margaritta,  the  mas- 
ter took  with  him  a  letter  of  recommendation  from  the  agent  of  the 
owners,  to  R.  D.  Shepherd  &  Co.,  of  New  Orleans,  which  letter  he 
presented  on  his  arrival.  When  he  had  proceeded  about  half  way  up 
the  Mississippi,  the  Frances  and  Eliza  was  hailed  by  an  officer  on  board 


502  MEASURES   OF   REDRESS   IN   TIME   OP   PEACE  (Part  2 

the  revenue  cutter,  the  answer  was,  that  she  was  from  Jamaica ;  the 
captain  being  asked  "what  he  was  doing  off  Jamaica,"  answered,  that 
he  "went  in  to  get  his  name  indorsed  on  the  register,  and  to  obtain  a 
freight  for  England" ;  to  which  the  officer  repHed,  that  he  was  under 
the  necessity  of  seizing  his  vessel  for  a  breach  of  the  Navigation  Act; 
he  then  said  he  went  in  to  get  provisions. 

Upon  this  testimony,,  the  District  Court  condemned  the  vessel,  as 
forfeited  to  the  United  States ;  and  the  claimant  appealed  to  this  court. 

DxJVALiv,  Justice,  delivered  the  opinion  of  the  court,  and  after  stating 
the  facts,  proceeded  as  follows : 

In  the  argument  of  this  cause,  it  was  contended  by  the  Attorney 
General,  that  touching  at  Falmouth,  with  the  intention  to  get  freight 
there,  and  coming  from  that  port  to  a  port  in  the  United  States,  brought 
the  Frances  and  Eliza  within  the  operation  of  the  Navigation  Act ;  it 
being  the  policy  of  the  law  to  prevent  all  communication  between  ves- 
sels of  the  United  States  and  British  ports,  which  were  closed  against 
them.  On  behalf  of  the  owners,  it  was  contended,  that  if  the  Frances 
and  Eliza  was  bound  to  Falmouth,  it  was  a  mere  alternative  destina- 
tion, depending  on  her  being  able  to  get  freight  there ;  and  that  as  she 
in  fact  embraced  the  other  branch  of  the  alternative,  and  went  to  New 
Orleans,  this  must  be  considered  as  her  original  destination. 

If  the  destination  of  the  Frances  and  Eliza,  from  Margaritta  to  New 
Orleans,  was  real,  not  colorable,  and  if  the  touching  at  Falmouth  was 
for  the  purpose  of  procuring  provisions,  of  which  the  ship's  crew  was 
really  in  want,  there  was  not  a  violation  of  the  navigation  act.  The 
evidence  in  the  cause  seems  to  justify  the  conclusion,  that  her  real 
destination  was  to  New  Orleans.  The  order  of  Mr.  Gold,  agent  of 
the  owners,  to  the  master,  to  take  command  of  the  vessel  and  proceed 
to  New  Orleans,  and  there  to  endeavor  to  procure  a  freight  to  Eng- 
land or  the  continent ;  the  letter  of  recommendation  from  John  Guya, 
merchant,  to  Messrs.  R.  D.  Shepherd  &  Co.,  requesting  their  aid  to 
the  master  to  accomplish  that  purpose,  taken  in  connection  with  the 
circumstance  of  Glover's  taking  his  passage  in  the  vessel,  with  the  leave 
of  the  agent,  from  Margaritta  to  New  Orleans,  establish  the  fact  in 
a  satisfactory  manner.  It  appears  to  have  been  understood,  by  all  who 
had  any  concern  with  the  vessel,  that  her  destination  was  to  New  Or- 
leans. 

The  Frances  and  Eliza  did  not  enter  the  port  of  Falmouth,  but  stood 
off  and  on,  four  or  five  miles  from  the  harbor,  for  a  few  days,  during 
which  time  the  master  went  on  shore  to  get  provisions,  of  which  he 
was  in  want.  Whether  he  endeavored  to  procure  freight  there,  is  a 
fact  not  ascertained  by  the  testimony.  It  is  certain,  that  he  did  not 
obtain  it,  because  it  is  admitted,  that  the  vessel  sailed  in  ballast  to  New 
Orleans.  His  real  object  in  going  on  shore  at  Falmouth,  appears  to 
h'ave  been  to  procure  provisions,  of  which  the  ship's  crew  were  much 
in  want.    And  there  is  no  evidence  of  any  act  done  by  him,  which  can 


Ch.  3)  RETALIATION  503 

be  construed  into  a  breach  of  the  act  concerning  navigation.  The 
policy  of  that  act,  without  doubt,  was  to  counteract  the  British  colonial 
system  of  navigation ;  to  prevent  British  vessels  from  bringing  British 
goods  from  the  islands,  in  exclusion  of  vessels  of  the  United  States, 
and  to  place  the  vessels  of  the  United  States  on  a  footing  of  reciproc- 
ity with  British  vessels.  The  system  of  equality  was  what  was  aimed 
at.  The  landing  a  passenger  there,  who  casually  got  employment,  and 
for  that  reason  chose  to  remain  on  the  island;  and  the  taking  in  two 
passengers  there,  one  of  which  was  a  boy  and  a  relative,  and  the  other 
taken,  passage  free,  to  New  Orleans,  are  not  deemed  to  be  acts  in  con- 
travention of  the  true  construction  of  the  Navigation  Act. 

The  log-book  was  supposed  to  furnish  some  suspicious  appearances, 
but,  on  examination,  was  found  to  contain  no  material  fact  which 
could  govern  in  the  decision.  It  is  the  unanimous  opinion  of  the  court, 
that  the  sentence  of  the  district  court  ought  to  be  reversed,  and  that 
the  property  be  restored  to  the  claimant. 

Decree  reversed.* 

3  In  The  Pitt,  8  Wheat.  371,  374,  375,  .5  L.  Ed.  639  (1823),  counsel  thus  stat- 
ed in  argument  the  purpose  of  the  act  of  Congress  in  question: 

"The  commercial  convention  concluded  between  the  United  States  and 
Great  Britain,  on  the  3d  of  July,  1815,  did  not  extend  to  the  British  colo- 
nies in  the  West  Indies ;  but  as  to  them,  the  navigation  laws  and  colonial 
system  of  Great  Britain  continued  in  force,  which  the  United  States  were  at 
liberty  to  counteract  by  any  regulations  in  their  power.  It  was  for  this 
purpose,  the  act  of  Congress  was  passed.  It  contemplated  a  partial,  not  a 
general,  nonintercourse  system.  It  did  not,  of  course,  exclude  the  entrance 
of  an  English  vessel,  whether  documented  at  home  or  in  a  colony,  coming 
with  a  cargo  of  British  manufactures  or  colonial  produce,  from  any  other 
than  a  prohibited  place,  without  having  touched  at,  in  the  course  of  her  voy- 
age, any  free  port  in  the  British  colonies.  Any  article  produced  in  the 
interdicted  colony  may  be  imported  into  the  United  States,  in  a  lawful  way. 
from  permitted  ports  in  England,  or  her  colonies,  and  a  fortiori,  from  the 
ports  of  any  other  foreign  state." 

For  retaliation  by  a  l)elligerent  because  of  the  alleged  infraction  of  inter- 
national law  by  its  enemy  at  the  expense  of  neutral  nations,  see  The  Leonora, 
[1910]  A.  C.  974,  (1919),  post,  804. 


504  MEASURES  OF   REDRESS  IN   TIME  OF  PEACH  (Part  2 

CHAPTER  IV 
DISPLAY  OF  FORCE 


PERRIN  V.  UNITED  STATES. 

(Court  of  Claims  of  the  United  States,  1S6S.    4  Ct.  CI.  543.) 

Mr.  Caleb  Cushing  and  Mr.  W.  W.  Boyce  for  the  claimants; 
The  case  comes  up  under  a  general  demurrer  to  the  plaintiff's  peti- 
tion. 

The  petition,  in  addition  to  the  formal  facts  necessary,  states: 

1.  That,  on  July  13,  1854,  the  petitioner,  Marie  Louise  Perrin,  was 
the  wife  of  her  co-petitioner,  and  now  is. 

2.  That,  on  July  13,  1854,  the  petitioners  were  subjects  of  the  em- 
peror of  the  French,  but  that  at  the  time  of  filing  this  petition  they 
were  naturalized  citizens  of  the  United  States. 

3.  That  neither  of  petitioners,  at  any  time,  were  citizens  of  Grey- 
town,  or  owed  allegiance  to,  or  claimed  protection  from,  the  govern- 
ment thereof. 

4.  That  shortly  before  the  13th  of  July,  1854,  Mrs.  Perrin  arrived 
at  Greytown,  with  a  valuable  invoice  of  merchandise,  to  which  town 
her  husband  had  preceded  her,  with  the  intention  of  establishing  a 
commercial  house  in  some  part  of  Central  America,  having  previously 
shipped  to  that  port,  because  it  was  free  and  on  the  transit  to  the  in- 
terior of  the  five  Central  American  states,  a  first  large  invoice  of  mer- 
chandise, which  was  landed  May  1,  1854.  That,  on  the  arrival  of 
Madam  Perrin  with  the  second  invoice,  about  the  middle  of  June, 
1854,  her  husband  left  Greytown  for  the  interior  of  Nicaragua,  with 
samples  of  their  goods,  for  the  purpose  of  selecting  in  Nicaragua  or 
Costa  Rica  a  place  at  which  to  locate  and  establish  a  commercial  house. 

5.  That,  while  Madam  Perrin  remained  alone  in  Greytown  hourly 
waiting  the  return  of  her  husband  to  remove  all  the  property  to  the 
interior,  on  the  13th  day  of  July,  1854,  the  said  town  of  San  Juan 
(Greytown)  was  bombarded  and  burnt  by  the  United  States  sloop  of 
war  Cyane,  Commander  Hollins,  and  all  the  merchandise,  books,  and 
papers,  together  with  the  personal  effects  of  Madam  Perrin,  were  whol- 
ly destroyed  by  said  bombardment  and  burning. 

6.  That  the  merchandise  burnt  was  worth  $13,900. 

7.  That  the  emperor  of  France  declined  to  press  the  claims  of 
French  subjects  for  indemnity. 

8.  Application  made  by  petitioners,  February  10,  1868,  to  the  Sec- 
retary of  State  of  the  United  States  for  compensation. 

I.  Under  this  state  of  facts,  as  set  forth  in  the  petition,  the  ques- 


Ch.  4)  DISPLAY  OF   FORCE  505 

tion  arises  whether  there  is  any  liability  on  the  part  of  the  United 
States  to  make  compensation  to  Aladam  Perrin  for  her  property  de- 
stroyed at  Greytown. 

We  submit  that  there  is,  and  on  the  following  grounds : 

1,  Because  of  the  clause  of  the  Constitution  of  the  United  States 
which  provides  that  "private  property  shall  not  be  taken  for  public  use 
except  on  just  compensation." 

In  the  case  of  Wiggins  v.  United  States,  3  Ct.  CI.  412,  this  court  de- 
cided, under  the  above-cited  clause  of  the  Constitution,  that  the  Unit- 
ed States  were  liable  for  certain  powder  belonging  to  a  citizen  of  the 
United  States,  and  being  stored  across  the  bay  from  Greytown,  at 
Punta  Arenas,  and  being  destroyed  to  prevent  its  being  used  by  the 
inhabitants  of  Greytown  to  injure  the  warehouses  of  the  Transit  Com- 
pany, in  which  it  was  stored. 

a.  That  the  powder  was  located  at  Punta  Arenas  it  is  submitted  is 
immaterial.  If  the  powder  had  been  in  Greytown  and  destroyed  for 
the  same  motive,  it  would  not  have  weakened  Wiggins'  claim  for  com- 
pensation. 

b.  The  particular  motive  Commander  Hollins  had  for  destroying 
the  powder  was  of  no  importance.  The  great  question  was,  whether 
the  powder  was  taken  for  public  use. 

c.  The  fact  that  Wiggins  was  a  citizen  of  the  United  States  does 
not  place  him  in  a  better  condition  than  the  petitioner.  The  Constitu- 
tion says  not  private  property  of  citizens,  but  "private  property"  gen- 
erally, shall  not  be  taken. 

2.  Should  we  be  in  error  in  the  grounds  .previously  taken,  then 
we  submit  that  the  United  States  are  liable  in  another  aspect  of  the 
case ;  that  is  to  say,  the  bombardment  and  burning  of  Greytown  were 
in  \iolation  of  international  law ;  and  as  by  such  violation  damage 
resulted  to  the  petitioners,  an  implied  contract  arises  on  the  part  of 
the  United  States  to  make  compensation : 

1.  Because  application  should  have  been  first  made  to  Nicaragua 
for  redress. 

2.  Violation  of  the  neutrality  of  Nicaragua. 

3.  Bombardment  and  burning  in  violation  of  the  laws  of  war. 
Mr.  Marcy  objects  to  the  claim  of  French  subjects  arising  out  of 

bombardment  of  Greytown  principally  on  two  grounds: 

1.  Because  foreigners  domiciled  in  a  foreign  country  must  look  to 
that  country  for  protection. 

2.  Foreigners  domiciled  in  foreign  countries  must  share  with  citi- 
zens of  that  country  in  fortunes  of  war. 

In  regard  to  the  first  point,  a  distinction  is  to  be  taken  between 
foreigners  domiciled  and  those  present  in  a  foreign  country  for  a 
temporary  purpose. 

As  to  second  point,  the  same  distinction  should  be  taken. 


506  MEASURES   OF   REDRESS   IN   TIME   OF   PEACE  (Part  2 

In  both  cases,  Mr.  Marcy  assumes  that  war  existed,  which  is  not 
conceded. 

In  view  of  the  facts  and  law  of  the  case,  we  conclude  that  the  Unit- 
ed States  are  liable  to  the  petitioners,  and  that  the  demurrer  should 
be  overruled. 

The  Assistant  Attorney  General,  for  the  defendants. 

Casey,  C.  J.  The  petition  in  this  case  claims  a  sum  exceeding  twenty 
thousand  dollars,  for  merchandise  destroyed  by  the  bombardment  and 
burning  of  San  Juan,  or  Greytown,  by  Commander  Hollins,  of  the 
United  States  Navy,  in  command  of  the  United  States  man-of-war 
Cyane,  on  the  13th  of  July,  1854. 

The  claimant  and  her  husband,  Mr.  Trautman  Perrin,  were  French 
subjects,  temporarily  domiciled  at  Greytown,  having  with  them,  con- 
tained in  a  store  hired  for  the  purpose,  a  valuable  lot  of  merchandise. 
The  inhabitants  of  Greytown  prior  to  this  time  had  been  guilty  of 
many  outrages  and  depredations  upon  the  persons  and  property  of  the 
citizens  of  the  United  States  passing  that  way.  They  had  also  treated 
with  great  rudeness  and  indignity  an  accredited  minister  of  the  United 
States  to  one  of  the  South  American  governments  in  his  passage 
through  Nicaragua.  The  passage  across  Central  America  had  become 
a  matter  of  great  importance  to  the  United  States  by  the  cession  of 
California  to  her  by  Mexico,  the  discovery  of  large  deposits  of  gold 
there,  the  consequent  rush  of  emigration,  and  the  necessity  for  the 
shortest  and  most  rapid  route  of  communication  between  the  Atlantic 
seaboard  and  her  Pacific  possessions ;  and  Greytown  had  become  the 
resort  of  desperate  and  reckless  adventurers,  who  took  pleasure  in 
despoiling  the  citizens  of  the  United  States  and  insulting  her  flag 
and  authority.  The  United  States  applied  to  the  Nicaragua  authori- 
ties to  restrain  and  suppress  this  lawless  and  obnoxious  conduct.  But 
the  local  government  was  either  unable  or  unwilling  to  do  so.  The 
outrageous  character  of  these  acts,  and  the  frequency  of  their  occur- 
rence, called  for  prompt  and  decided  action  on  the  part  of  the  United 
States.  Accordingly,  by  command  of  the  President  of  the  United 
States,  Commander  Hollins  proceeded  with  the  United  States  ship 
Cyane  to  that  place.  Arriving  there,  he  communicated  with  Mr.  Fa- 
bens,  the  commercial  agent  of  the  United  States  at  Greytown.  He 
also  made  repeated  demands  upon  the  authorities  for  reparation  and 
indemnity  for  property-  belonging  to  citizens  of  the  United  States  taken 
or  destroyed  by  inhabitants  of  Greytown,  and  secretly  connived  at 
or  openly  sanctioned  by  the  public  authorities  of  the  town.  He  also 
required  suitable  apologies  to  be  made  for  the  indignities  offered  to 
the  United  States  in  the  person  of  her  accredited  minister;  and  gave 
full  and  distinct  notice  that  unless  such  reparation  was  made,  and 
such  apologies  offered  as  were  satisfactory  to  the  United  States,  with- 
in a  given  time,  he  would  open  fire  upon  the  place.  These  demands 
remained  unheeded,  and  on  the  13th  July,   1854,   Commander  Hoi- 


Ch.  4)  DISPLAY   OF   FORCE  507 

lins  opened  fire  from  his  ship  upon  the  town,  A  large  portion  of  the 
place  was  battered  down  by  guns  of  the  ship,  and  then  a  party  was 
sent  on  shore  to  apply  the  torch,  and  complete  by  burning  what  had 
escaped  the  bombardment.  The  town  was  totally  destroyed.'  Com- 
mander Hollins  made  a  detailed  report  of  his  operations  to  the  Secre- 
tary of  the  Navy;  and  the  President  in  his  annual  message  for  1854 
communicated  all  the  facts  in  the  case  to  Congress.  Commander  Rol- 
lins' conduct  was  approved,  and  he  was  commended  for  the  prompt 
and  efficient  manner  in  which  he  had  carried  out  the  instructions  of 
his  government. 

It  is  part  of  the  case  that  the  claimg-nt  has  applied  successively  to 
the  French  government,  to  Congress,  and  the  executive  authorities  of 
the  United  States  for  redress  and  indemnity  for  her  losses  without 
success. 

The  claimant's  case  must  necessarily  rest  upon  the  assumption  that 
the  bombardment  and  destruction  of  Greytown  was  illegal  and  not 
justified  by  the  law  of  nations.  And  hinging  upon  that,  it  will  be 
readily  seen  that  the  questions  raised  are  such  as  can  only  be  deter- 
mined between  the  United  States  and  the  governments  whose  citizens  it 
is  alleged  have  been  injured  by  the  injurious  acts  of  this  government. 
They  are  international  political  questions,  which  no  court  of  this  coun- 
try in  a  case  of  this  kind  is  authorized  or  empowered  to  decide.  They 
grew  out  of  and  relate  to  peace  and  war,  and  to  the  relations  and  in- 
tercourse between  this  country  and  foreign  nations.  They  are  polit- 
ical in  their  nature  and  character,  and  under  our  system  belong  to  the 
political  departments  of  the  government  to  define,  arrange  and  deter- 
mine. And  when  the  questions  arise  incidentally  in  our  courts  the 
judiciary  follow  and  adopt  the  action  of  the  executive  and  legislative 
departments,  whatever  that  may  be.  The  case,  we  think,  bears  no 
resemblance  to  that  of  Grant  v.  United  States,  1  Ct.  CI.  41.  or  Wiggins 
V.  The  United  States,  3  Ct.  Cl.  412.  In  both  cases  the  claim  was  for 
property  of  citizens  taken  by  the  United  States  and  destroyed  to  pre- 
vent it  falling  into  the  hands  of  the  public  enemy.  It  was  not  de- 
stroyed in  hostile  operations  against  the  public  enemy,  but  for  the 
purpose  of  preventing  the  aid  and  succor  it  would  have  afforded  him 
if  it  had  been  permitted  to  fall  into  his  hands.  No  government,  except 
as  a  special  favor  bestowed,  has  ever  paid  for  the  property  of  even 
its  own  citizens  in  its  own  country  destroyed  in  attacking  or  defend- 
ing against  a  common  public  enemy ;  much  less  is  any  government 
bound  to  pay  for  the  property  of  neutrals,  domiciled  in  the  country 
of  its  enemy,  which  its  forces  may  chance  to  destroy  in  its  operations 
against  such  enemy.  The  doctrine  is  clearly  and  concisely  stated  in 
the  letter  of  Hon.  William  H.  Seward,  Secretary  of  State,  to  Hon. 
Charles  Sumner,  chairman  of  the  Committee  on  Foreign  Relations  of 
the  United  States  Senate,  dated  February  26,  1868,  and  in  reference 
to  this  case. 


508  MEASURES  OF   REDRESS   IN   TIME  OF  PEACE  (Part  2 

■'Sir:  I  have  examined  the  claim  which  you  commended  to  the  at- 
tention of  this  department,  of  Mr.  Trautman  Perrin,  for  damages  sus- 
tained in  the  bombardment  of  Greytown  in  1854,  by  Commander 
Holhns/  It  would  be  a  sufficient  answer  that  Mr.  Perrin,  at  the  time 
the  injuries  were  sustained,  was  a  French  subject,  and  that  his  gov- 
ernment has  acquiesced  in  the  refusal  of  the  United  States  to  grant 
any  indemnity  for  the  losses  of  French  subjects  on  that  occa- 
sion. 

"The  British  government,  upon  the  advice  of  the  law  officers  of 
the  crown,  declared  to  Parliament  its  inability  to  prosecute  similar 
claims.  In  1857  Lord  Palmerston  applied  the  decision  in  the  case  of 
Greytown  as  a  precedent  for  refusing  compensation  to  British  mer- 
chants whose  property  in  a  Prussian  port  had  been  destroyed  by  a 
British  squadron  during  the  Crimean  war.  (See  note  in  Lawrence's 
Wheaton,  p.  145.) 

"The  governmicnts  of  Austria  and  Russia  have  applied  the  doctrine 
involved  in  the  Greytown  case  to  the  claims  of  British  subjects  in- 
jured by  belligerent  operations  in  Italy  in  1849  and  1850.  (See  note, 
p.  49.  vol.  2,  of  Vattel,  Guillaumin  &'  Co.'s  edition,  1863.)  We  have 
applied  the  same  principle  in  declining  to  make  reclamations  for  citi- 
zens of  the  United  States  whose  property  was  destroyed  in  the  bom- 
bardment of  Valparaiso  by  a  Spanish  fleet,  and  in  resisting  the  claims 
of  subjects  of  neutral  powers  who  sustained  injviry  from  our  military 
operations  in  the  Southern  States  during  the  recent  rebellion.  It  will 
probably  be  found  a  sufficient  answer  to  the  reclamations  of  many  of 
our  citizens  who  have  sustained  losses  from  belligerent  operations  on 
both  sides  during  the  recent  occupation  of  Mexico  by  French  troops. 
The  principle  affirmed  is,  that  one  who  takes  up  a  residence  in  a  for- 
eign place  and  there  suffers  an  injury  to  his  property  by  reason  of  bel- 
ligerent acts  committed  against  that  place  by  another  foreign  nation, 
must  abide  the  chances  of  the  country  in  which  he  chose  to  reside ; 
and  his  only  claim,  if  any,  is  a  personal  one  against  the  government  of 
that  country  in  which  his  own  sovereign  will  not  interest  himself. 

"The  only  discrimination  suggested  in  Mr.  Perrin's  case  is  on  ac- 
count of  the  very  temporary  nature  of  his  sojourn  at  Greytown.  I 
think  this  cannot  affect  the  principle,  which  is  too  valuable  in  the 
present  circumstances  of  this  country,  to  allow  us  to  waive  or  im- 
pair it. 

"By  no  allowed  construction  of  the  laws  could  this  claim  be  paid  out 
of  any  fund  under  the  control  of  the  department,  and  the  considera- 
tions I  have  stated  forbid  its  recommendation  to  Congress. 

"Your  obedient  servant,  William  H.  Seward." 

Adopting  these  views  as  a  correct  exposition  of  the  laws  and  usages 
of  nations  upon  this  subject,  we  are  very  clear  that  the  claimants  have 
presented  no  available  claim  against  the  United  States  which  is  cog- 


Ch.  4)  DISPLAY  OF   FORCE  509 

nizable  in  this  court.    We  therefore  sustain  the  demurrer  and  dismiss 
the  petition.^ 

1  As  resrards  private  property  destroyed  by  military  operations,  see  United 
States  V.  Pacific  Railroad,  120  U.  S.  227.  234.  2.35.  7  Sup.  Ct.  490.  30  L.  Ed. 
6-34  (1887),  holding  that  the  United  States  was  not  responsible  for  the  in- 
inry  or  destruction  of  private  property  because  of  its  military  operations 
during  the  Civil  War,  and  that  private  parties  were  not  chargeable  for  works 
constructed  on  their  property  by  the  United  States  to  facilitate'  such  oper- 
ations. 

In  delivering  the  unanimous  opinion  of  the  court.  Mr.  Justice  Field  stated 
that  "these  views  are  sustained  in  treatises  of  text-writers,  by  the  action 
of  Congress,  and  by  the  IfmQu.iire  of  .indicial  tribunals."     He  thus  continued: 

"Vattel,  in  his  Law  of  Nations,  speaks  of  damages  sustained  by  individu- 
als in  war  as  of  two  kinds — those  done  by  the  state  and  those  done  by  the 
enemy.  And  after  mentioning  those  done  by  the  state  deliberately  and  by 
way  of  precaution,  as  when  a  field,  a  house,  or  a  garden,  belonging  to  a  pri- 
vate person,  is  taken  for  the  purpose  of  erecting  on  the  spot  a  town  rampart 
or  other  piece  of  fortification ;  or  when  his  standing  com  or  his  storehouses 
are  destroyed  to  prevent  their  being  of  use  to  the  enemy;  and  stating  that 
such  damages  are  to  be  made  good  to  the  individual,  who  should  bear  only 
his  quota  of  the  loss,  he  says:  'But  there  are  other  damages,  caused  by  in- 
evitable necessity,  as.  for  instance,  the  destruction  caused  by  the  artillery 
in  retaking  a  town  from  the  enemy.  These  are  merely  accidents;  they  are 
misfortunes  which  chance  dtvals  out  to  the  proprietors  on  whom  they  happen 
to  fall.  The  sovereign,  indeed,  ought  to  show  an  equitable  regard  for  the 
sufferers,  if  the  situation  of  his  affairs  will  admit  of  it;  but  no  action  lies 
against  the  state  for  misfortunes  of  this  nature — for  losses  which  she  has  oc- 
casioned, not  willfully,  but  through  necessity  and  by  mere  accident,  in  the 
exertion  of  her  rights.  The  same  may  be  said  of  damages  caused  by  the  en- 
emy. All  the  subjects  are  exposed  to  such  damages?;  and  woe  to  him  on 
whom  they  fall!  The  men:ibers  of  a  society  may  well  encounter  such  risk 
of  property,  since  they  encounter  a  similar  risk  of  life  itself.  Were  the 
state  strictly  to  indemnify  all  those  whose  property  is  injured  in  this  man- 
ner, the  public  finances  would  soon  be  exhausted,  and  every  individual  in 
the  state  would  be  obliged  to  contribute  his  share  in  due  proportion,  a  thing 
utterly  impracticable.'  "     Vattel.  Droit  des  Gens,  liv.  Ill,  c.  1.5,  §  232  (1758). 

See]  also,  the  Giles  Case,  4  Moore's  International  Arbitrations,  3703  (1880), 
under  the  Convention  between  the  United  States  and  France,  of  January  15, 
1880. 


510  MEASURES  OF   REDRESS  IN  TIME   OF   PEACE  (Part  2 

CHAPTER  V 
PACIFIC  BLOCKADE  ^ 


GREAT  BRITAIN,  on  Behalf  of  DON  PACIFICO,  v.  GREECE. 

(Mixed  Commission  of  Inquiry,  1S50,  1851.     40  British  and  Foreign 
State  Papers,  635.) 

On  Easter  Sunday,  1847,  in  Athens,  a  British  subject  of  the  Jewish 
faith,  Don  Pacifico  by  name,  was  roughly  handled  by  a  mob  composed 
in  part  of  soldiers,  and  his  house  was  entered  and  sacked.  Don  Pacifico 
estimated  his  total  losses  at  about  £32,000,  and  his  claim,  presented  to 
the  British  Ambassador,  was  espoused  by  the  Foreign  Office  of  Great 
Britain.  It  appears  that  it  was  then  the  custom  at  Athens  to  burn  on 
Easter  Sunday  the  image  of  Judas  Iscariot.  As,  however,  Lord  Roths- 
child, a  British  subject  of  Jewish  faith,  was  visiting  Athens  at  this 
time,  the  Greek  government  forbade  the  custom.  This  was  attributed 
by  the  populace,  not  to  the  presence  of  Lord  Rothschild,  but  to  the  in- 
fluence of  Don  Pacifico.  Hence  the  outrages  to  his  person  and  prop- 
erty. 

The  Greek  government  insisted  that  Don  Pacifico  should  resort  to 
the  tribunals  of  Athens  and  that  Great  Britain  should  only  espouse 
his  claim,  if  there  were  a  denial  of  justice,  or  if,  after  a  judgment  in 
his  favor,  it  could  not  be  collected  from  his  assailants.  Don  Pacifico 
had,  it  appeared,  been  consul  general  of  Portugal  at  Athens  and  in- 
sisted that  in  the  destruction  of  his  house,  the  documents  necessary  to 
establish  a  claim  of  some  £26,000  against  Portugal  had  been  destroyed. 
There  were  other  claims  of  Great  Britain  against  Greece,  not  neces- 
sary to  mention  in  this  connection,  although  they  were  alleged  to  jus- 
tify the  aggressive  action  of  Great  Britain.  The  maltreatment  of  Don 
Pacifico  and  his  alleged  losses  were  the  chief  grievance.  The  other 
claims  were  incidental  and  merely  swelled  the  bill,  which,  not  paid 
by  Greece,  a  so-called  pacific  blockade  of  the  Greek  coast  was  pro- 
claimed January  24,  1850,^  resulting  in  the  seizure  and  sequestration 
of  some  fifty  or  sixty  vessels. 

1  On  the  subject  of  pacific  bloclvade  and  the  various  instances  of  its  em- 
ployment, see  Albert  E.  Hogan's  Pacific  Blockade  (1908). 

-  The  British  consul  at  Athens  informed  the  Greek  government  on  that 
date  that  the  commander  in  chief  of  Her  Majesty's  naval  forces  "deems  it 
necessary  to  extend  to  Greek  merchant  vessels  the  prohibition  to  put  to  sea, 
Vii-hich,  from  an  anxious  desire  not  to  injure  Greek  commerce,  has  up  to 
this  moment  been  limited  to  vessels  belonging  to  the  Greek  government." 
Albert  E.   Hogan's  Pacific   Blockade,    167-168    (1908). 

On  the  same  date,  the  British  consul  notified  third  states  of  the  blockade ; 
the  material  portion  of  the  notification  l>eiug  as  follows: 

"I  have,  therefore,  to  announce  to  you  that  henceforward  the  commander 


Ch.  5)  PACIFIC    BLOCKADE  511 

France,  deeply  interested  in  the  welfare  of  Greece,  offered  its  good 
offices,  as  a  result  of  which  an  agreement  was  reached  on  July  18, 
1850,  between  representatives  of  the  three  governments.  British  claims 
other  than  those  of  Pacifico  were  declared  satisfied,^  and  the  claim  of 
Pacifico  for  the  loss  of  his  documents  establishing  his  rights  against 
Portugal  was  submitted  to  an  arbitral  commission,  consisting  of  three 
members,  one  appointed  by  Great  Britain,  one  by  Greece,  the  umpire 
by  France.  The  mixed  commission  met  at  Lisbon  in  Portugal  and 
rendered  the  following  award  on  May  5,  1851 : 

By  a  Convention  signed  at  Athens  on  the  18th  of  July,  1850,  be- 
tween her  Britannic  Majesty  and  His  Hellenic  Majesty,  it  was  agreed 
and  concluded  that  all  the  demands  made  on  the  government  of  Greece 
in  a  note  of  the  17th  of  January,  1850,  having  been  satisfied,  with  the 
exception  of  the  claim  arising  out  of  the  loss  by  M.  Pacifico  of  certain 
documents  relating  to  money  claims  which  he  had  to  establish  against 
the  Portuguese  government,  His  Hellenic  Majesty  engaged  to  make 
good  to  M.  Pacifico  any  real  injury  (prejudice  reel)  which,  upon  a  full 
and  fair  investigation,  it  should  be  proved  that  he  had  sustained  by  the 
destruction  of  those  documents. 

For  the  purpose  of  conducting  the  investigation  it  was  further 
agreed,  between  the  contracting  parties,  that  two  arbiters,  with  an  um- 
pire to  decide  between  them  in  case  of  difference,  should  be  appointed 
by  the  joint  concurrence  of  the  governments  of  France,  of  Great  Brit- 
ain, and  of  Greece,  and  that  this  Commission  of  Arbitration  should  re- 
port to  the  British  and  Greek  governments  whether  any,  and,  if  any, 
what  amount  of  real  injury  had  been  sustained  by  M.  Pacifico,  by  rea- 
son of  the  alleged  loss  of  the  documents  mentioned,  and  the  amount  so 
reported  should  be  the  amount  which  M.  Pacifico  is  to  receive  from  the 
Greek  government. 

in  cbief  of  Her  Britannic  Majesty's  naval  forces  will  not  permit  any  Greek 
vessel  to  quit  a  Grepk  port.  Nevertheless  nny  Greek  vessel,  liaving  been  char- 
terefl  previous  to  the  present  commiTnk'fition  to  carry  a  carc^o  or  part  of  a 
car^o  belonging  to  foreign  inercbants  will  be  allowed  to  put  to  sea ;  but  this 
exception  cannot  be  applied  to  any  Greek  vessel  chartered  by  foreign  mer- 
chants after  the  comnmnication  of  this  notice.  The  above  measure  in  no 
way  affects  foreign  vessels  of  any  desanption.  but  it  is  exclusively  confined 
to  vessels  under  the  Greek  flag."     Id.  168,  169. 

Six  days  later,  on  January  oOth.  the  British  consul  at  Syra  transmitted 
a  further  notice  of  blockade  to  third  states,  from  which  the  following  pas- 
sacre  is  taken: 

"I  have  received  orders  *  *  *  to  inform  you  that  this  measure  does 
not  in  any  way  interfere  with  ve&'iels  of  other  powers,  nor  even  with  such 
Greek  vessels  as  may  have  been  already  chartered  by  foreign  merchants; 
but  this  exemption  will  not  be  granted  to  any  Greek  ships  after  the  present 
communication.  All  Greek  vossels  having  on  hoard  goods  belonging  partly 
or  wholly  to  foreign  merchants  will  be  permitted  to  disembark  them  in  Greek 
ports,  the  merchant  being  bound  to  produce  proof  of  his  property  therein." 
Id.  IGO,  170. 

3  The  Greek  government  admitted  that  Pacifico  had  sustained  considerable 
damage  at  the  hands  of  the  mob,  and  paid  in  satisfaction  of  the  claims  other 
than  the  loss  of  his  documents  against  I'ortugal  some  two-thirds  of  their  orig- 
inal amount.     See  Hogan's  Pacific  Blockade,  p.  113  (190S). 


512  MEASURES   OF   REDRESS   IN   TIME   OF   PEACE  (Part  2 

In  accordance  with  the  above-mentioned  Convention,  the  government 
of  France  appointed  M.  Leon  Beclard,  Secretarj^  of  the  Legation  of 
France  at  the  court  of  Lisbon,  commissioner  and  umpire;  Her  Bri- 
tannic Majesty's  government  nominated  Mr.  Patrick  Francis  Camp- 
l)ell  Johnston,  British  commissioner;  and  His  Hellenic  Majesty's  gov- 
ernment named  Mr.  George  Torlades  O'Neill,  consul-general  for  Greece 
at  Lisbon,  as  their  commissioner. 

The  Commission,  consisting  of  these  three  members,  assembled  and 
met  together  at  Lisbon  in  February,  1851,  and  proceeded  to  investigate 
a  list  of  claims  dated  Athens,  December  21,  1844,  and  which  was  in- 
closed in  a  letter  addressed  to  Her  Britannic  Majesty's  Principal  Secre- 
tary of  State  for  Foreign  Affairs  by  M.  Pacifico  on  the  26th  Septem- 
ber, 1850. 

This  list  purported  to  be  a  statement  of  documents  destroyed  at 
Athens  on  the  4th  April,  1847,  relating  to  the  claims  of  M.  Pacifico 
on  the  Portuguese  government ;  and  a  copy  of  it,  authenticated  by  the 
signatures  of  the  three  commissioners,  is  appended  to  this  report. 

The  commissioners,  in  order  to  facilitate  the  inquiry,  have  numbered 
the  claims  in  that  list,  and  divided  them  into  two  classes : 

1st.  Those  which  relate  to  losses  sustained,  and  services  rendered, 
by  M.  Pacifico  during  the  civil  war  in  Portugal; 

2dly.  Those  which  relate  to  claims  for  salary,  expenses,  voyage  to 
Greece  from  Portugal,  while  holding  the  office  of  consul-general  of 
Portugal  in  Greece. 

The  commissioners,  in  the  prosecution  of  their  duties,  have  endeav- 
ored to  ascertain  whether  among  those  claims  there  were  any  which 
had  not  been  defeated  by  the  loss  of  documents  carried  away  or  de- 
stroyed during  the  sacking  of  M.  Pacifico's  house  at  Athens,  and  which 
can,  therefore,  still  be  as  well  established  by  means  of  official  docu- 
ments or  records  now  existing  in  the  public  offices  in  Portugal. 

The  commissioners  have  now  the  honor  to  report  that  they  have 
discovered  in  the  archives  of  the  Cortes  at  Lisbon  a  petition  addressed 
by  M.  Pacifico  to  the  Chamber  of  Deputies  in  1839,  and  presented  in 
the  same  year  by  one  of  its  members,  accompanied  by  a  voluminous 
body  of  documents  to  prove  his  alleged  losses,  in  which  petition  M. 
Pacifico  prays  for  compensation  for  his  sufferings. 

The  commissioners  are  satisfied,  from  inquiries  which  they  estab- 
lished at  great  length  and  much  difficulty,  that  the  various  certificates 
and  papers  attached  to  that  petition  are  the  originals  or  certified  copies 
of  the  most  important  documents  alleged  to  have  been  destroyed  at 
Athens. 

That  petition  has  not  yet  been  disposed  of  by  the  Chamber  of  Dep- 
uties, M.  Pacifico  appearing  to  have  taken  no  steps  since  its  presenta- 
tion in  1839,  either  by  himself  or  his  agents,  to  cause  it,  together  with 
the  accompanying  documents,  to  be  taken  into  consideration  and  de- 
cided by  that  assembly. 


Ch,  5)  PACIFIC   BLOCKADE  513 

With  reference  to  M.  Pacifico's  claims  in  regard  to  the  destruction 
of  any  documents  connected  with  his  salary  and  other  expenses  during 
the  time  he  held  the  office  of  consul-general  of  Portugal  in  Greece, 
the  commissioners  are  of  opinion  that  they  have  not  been  prejudiced 
by  any  such  loss,  and  that  he  is  still  able  to  establish  his  rights,  if  well 
founded,  against  the  Portuguese  government. 

The  commissioners,  having  now  stated  their  unanimous  opinion  on 
the  above-named  points,  beg  to  add  that  almost  all  the  losses  of  prop- 
erty, represented  by  documents  alleged  to  have  been  destroyed  at 
Athens,  took  place  between  the  years  1828  and  1834,  and  that  M.  Pacifi- 
co  appears  to  have  taken  no  steps;  although  constantly  in  Portugal  be- 
tween the  years  1834  and  1839,  to  assert  his  rights  and  claims  in  a 
legal  manner ;  nor  does  it  appear  that  any  application  was  ever  made 
by  him  to  the  British  Minister  or  consular  authorities  in  Portugal,  to 
support  his  rights  or  to  redress  his  wrongs. 

Under  all  the  circumstances  of  this  case,  and  taking  into  considera- 
tion the  possibility  that  a  few  documents  of  no  great  importance  may 
have  been  lost  when  M.  Pacifico's  house  at  Athens  was  pillaged,  and 
the  expenses  he  has  incurred  during  this  investigation,  the  commis- 
sioners think  he  is  entitled  to  receive  from  the  government  of  Greece 
the  sum  of   £150.  for  the  injury  he  has  received. 

The  commissioners  cannot  conclude  their  report  without  taking  this 
opportunity  of  stating  that  the  utmost  cordiality  and  unanimity  of  sen- 
timent has  accompanied  every  step  they  have  collectively  taken  in  this 
very  important  investigation,  and  they  trust  the  result  of  this  commis- 
sion will  prove  an  additional  link  in  the  friendly  relations  which  sub- 
sist between  Great  Britain  and  France,  and  that  the  Portuguese  and 
Greek  governments  will  feel  that  England  has  had  but  one  object  in 
view  in  this  inquiry,  namely,  a  fair,  impartial,  and  honest  solution  of 
a  difficult  question.     *     *     *  * 

+  Mr.  Hogan.  who  defends  energetically  the  action  of  the  British  govern- 
ment in  the  principal  case,  says  that  "the  Portuguese  Minister,  in  a  dispatch 
to  Baron  Gros,  dated  March  2,  18.50,  admitted  the  liability  of  the  Portuguese 
government  to  ttte  amount  of  £197.  4s.,  3d."  Loc.  cit.  114.  A  rather  paltry 
siun,  it  would  seem,  to  justify  the  blockade  of  a  weak  and  .struggling  country. 

See,  also,  the  case  of  The  Forte,  5  Moore's  International  Arl)itrations,  49'2"i 
(1S63),  under  agreement  between  Great  Britain  and  Brazil  of  January  5,  1863. 

The  distinction  between  a  blockade  in  time  of  i:)eace  and  in  time  of  war  is 
that,  in  the  first  case,  the  blockading  nation  proceeds  against  the  property  of 
the  state  blockaded,  inasnuich  as  peace  does  not  give  rights  against  neutrals, 
whereas,  in  the  second  case,  neutral  property  is,  according  to  the  laws  ot 
war,  subject  to  belligerent  rights.  Therefore,  blockade  alleged  to  be  pacific, 
but  which  subjects  neutral  commerce  or  trade  to  visit  and  search,  is  only 
pacific  in  name,  but  in  fact  an  act  of  war.  This  was  recognized  by  the  na- 
tiuns  which,  peaceably  blockading  Venezuela  in  1902-03,  regarded  their 
blockade  as  an  act  of  war  In  order  to  have  the  rights  accruing  to  belligerents. 
Scott  Int.Law — 33 


514  MEASURES  OF  REDRESS  IN  TIME  OF  PEACE  (Part  2 

CHAPTER  VI 
REPRISALS 


A  DECLARATION  BY  THE  LORDS  JUSTICES 

Appointing  the  Distribution  of  Prizes  taken  by  Way  of  Reprizal  before 
His  Majesty's  Declaration  of  War,  173!>. 

His  Majesty  having,  on  the  tenth  day  of  July,  one  thousand  seven 
hundred  and  thirty-nine,  taken  into  his  serious  consideration  the  many 
and  repeated  depredations  which  had  been  committed,  and  the  many 
unjust  seizures  which  had  been  made  in  the  West  Indies  and  elsewhere 
by  Spanish  Guarda  Costas,  and  ships  acting  under  the  commissions 
of  the  king  of  Spain,  or  his  governors,  contrary  to  the  law  of  nations, 
and  in  violation  of  the  treaties  subsisting  between  the  crown  of  Great 
Britain  and  Spain,  whereby  His  Majesty's  trading  subjects  had  sus- 
tained great  losses ;  and  His  Majesty  having  determined  to  take  such 
measures  as  were  necessary  for  vindicating  the  honour  of  his  crown, 
and  for  procuring  reparation  and  satisfaction  to  his  injured  subjects, 
was  pleased,  by  and  with  the  advice  of  his  Privy  Council,  upon  the 
said  tenth  day  of  July,  to  order,  that  general  reprizals  should  be  grant- 
ed against  the  ships,  goods  and  subjects  of  the  king  of  Spain,  so  that 
as  well  His  Majesty's  fleet  and  ships,  as  also  all  other  ships  and  ves- 
sels that  should  be  commissionated  by  letters  of  marque  or  general 
reprizals,  or  otherwise,  by  his  Majesty's  commissioners  for  executing 
the  office  of  Lord  High  Admiral  of  Great  Britain,  should  and  might 
lawfully  seize  all  ships,  vessels  and  goods  belonging  to  the  king  of 
Spain,  or  his  subjects,  or  others  inhabiting  within  any  the  territories 
of  the  king  of  Spain,  and  bring  the  same  to  judgment  in  any  of  the 
courts  of  admiraltv  within  His  Majesty's  dominions. — The  London 
Gazette,  Numb.  8024,  (1741). 


BLAAUWPOT  V.  DA  COSTA. 

(High  Court  of  Chancery,  1758.    1  Eden,  130.) 

The  plaintiffs,  as  underwriters,  by  a  policy  of  insurance  made  at 
Amsterdam,  1st  February,  1729,  to  Elias  and  Solomon  De  Paz,  had 
insured  the  ship  Friendship  for  18,000  guelders,  or  £1636.  7s.  3d. 
The  ship  was  soon  after  seized  by  the  Spaniards,  before  the  declara- 
tion of  war,  and  carried  into  Havannah  and  condemned.  In  the  course 
of  the  following  year  the  plaintiffs  paid  the  sum  of  18,000  guelders  to 
Eiias  and  Solomon  De  Paz.     The  ship  had  also  been  insured  with 

Scott  Int.Law 


Ch.  6)  REPRISALS  515 

the  Royal  Exchange  Assurance  Company  for  the  sum  of  £1,500; 
but  the  company  had  afterwards  compounded,  and  renounced  salvage. 
His  Majesty,  by  a  proclamation  issued  18th  June,  1741,  was  pleased 
to  order  a  distribution  of  all  prizes  taken  before  the  declaration  of  war, 
in  equal  moieties  between  the  sufferers  and  the  captors.  Accordingly, 
under  a  commission  for  the  distribution  of  such  prizes,  the  sum  of 
£2050.  18s.  6d.  was,  on  the  9th  of  November,  1746,  paid  to  the  execu- 
tors of  Elias  De  Paz,  as  a  compensation  for  the  loss  of  the  ship  Friend- 
ship.   The  bill  was  brought  to  recover  the  sum  of  £1,636.  7s.  3d. 

The  Solicitor-General,  Mr.  Wilbraham,  and  Mr.  Pechell  for  the 
plaintiffs. 

The  plaintiffs  ought  to  be  repaid  from  the  defendants  in  proportion 
to  what  they  received  from  the  crown.  The  defendants  have  had  a 
double  satisfaction.  It  is  like  the  case  of  a  supposed  loss  of  a  ship, 
money  paid,  and  the  ship  afterwards  discovered  to  be  in  safety. 

The  Attorney  General  for  the  Royal  Exchange  Assurance  Office 
contended,  that  though  the  office  compounded  and  renounced  salvage, 
yet  that  such  composition  was  only  meant  to  extend  to  any  part  of  the 
ship  or  goods  that  might  be  recovered,  or  to  any  satisfaction  or  resti- 
tution that  might  be  made  by  the  Spanish  captors  to  the  sufferers. 

Sewell  and  Perrot  for  the  executors  of  the  De  Pazes. 

If  this  is  in  the  nature  of  salvage,  the  underwriters  must  undoubt- 
edly have  the  benefit  of  it.  But  it  is  not  so ;  it  is  a  grant  of  the  king ; 
a  royal  bounty  to  British  sufferers,  and  not  an  act  of  justice.  The 
commissioners  for  the  distribution  were  only  allowed  to  pay  the  dif- 
ference to  the  sufferers.  The  plaintiffs  as  foreigners  could  not  have 
claimed  under  the  commission. 

The  Lord  Keeper  [Sir  Robert  HeneEy].  I  am  of  opinion  that 
upon  the  policy,  and  the  peril  happening,  and,  the  payment  of  the 
money  by  the  underwriters,  the  whole  rights  of  the  assured  vested  in 
them.  The  assured  had  this  right  of  restitution  vested  in  them  against 
the  Spanish  captors,  which  was  afterwards  prosecuted  by  tlie  crown 
by  reprisals.  Satisfaction  having  been  made  in  consequence  of  that 
capture,  I  think  the  plaintiffs  are  entitled  to  that  benefit;  and  that  it 
was  received  by  the  executors  of  Elias  De  Paz  in  trust  for  them.  The 
defence  of  the  plaintiff's  being  foreigners,  and  as  such  not  entitled  to 
any  benefit,  is  a  fallacy;  they  stand  in  the  place  of  British  subjects, 
and  have  therefore  in  this  court  the  same  rights  as  British  subjects. 
The  capture  is  the  origin  of  that  right,  which  belongs  to  the  plaintiffs 
by  relation,  as  claiming  under  one  of  the  sufferers. 

As  to  the  nature  of  the  salvage,  it  was  so  much  saved  out  of  the 
hands  of  the  Spaniards  by  means  of  the  interposition  of  the  crown ; 
it  was  so  understood  by  the  crown.  It  was  to  be  considered  as  a  retri- 
bution to  the  underwriters  as  lessening  the  loss  incurred  by  the  cap- 
ture. As  to  the  Royal  Exchange  Assurance,  they  have  no  foundation 
whatever  for  their  claim ;  they  have  settled  their  loss  with  the  as- 
sured, and  renounced  all  benefit  of  salvage. 


516  MEASURES   OF   REDRESS  IN  TIME   OF  PEACE  (Part  2 

Decreed  the  sum  of  £  1636.  7s.  3d.,  with  interest  at  4  per  cent,  from 
the  time  of  the  pavment  of  the  £2050.  18s.  6d.  and  costs.  Reg.  Lib. 
A,  1757,  fol.  424.1' 

1  The  principal  case  was  quoted  with  approval  in  Burnand  v.  Rodocanachi, 
L.  R.  1SS1-1S82,  7  App.  Cas.  333.  337.  3.39.  342    (1SS2). 

"Letters  of  marque  and  reprisal  may  theoretically  issue  in  time  of  peace 
(Articles  of  Confederation,  signed  1778,  art.  9),  as  they  form  a  'mode  of  re- 
dress for  some  speci-fic  injury  which  is  considered  to  be  compatible  with  a 
state  of  peace  and  permitted  by  the  law  of  nations.'  Kent,  vol.  I,  p.  61. 
The  commission  authorizes  'the  seizure  of  the  property  of  the  subjects  as 
well  as  of  the  sovereign  of  the  offending  nation  and  to  bring  it  in  to  be  de- 
tained as  a  pledge,  or  di&posed  of  under  judicial  sanction  in  like  manner  as 
if  it  were  a  process  of  distress  under  national  authority  for  some  debt  or 
duty  withheld.'  Id.  Speaking  very  technically,  a  letter  of  marque  Is  merely 
a  permission  to  pass  the  frontier,  while  a  letter  of  reprisal  authorizes  a  'tak- 
ing in  return,'  a  taeing  by  way  of  retaliation,  a  captio  rei  unius  in  alterius 
satlsfactionem.  The  colloquial  use  together  of  the  tn'O  names,  letter  of 
marque  and  letter  of  reprisals,  leads  sometimes  to  misunderstanding  as  to  the 
differing  effect  of  each,  one  being  a  simple  authority  to  depart,  the  other  an 
authority  to  seize  property  in  comnensation  for  an  Injury  committed."  Da- 
vis. J.,  in  Hooper.  Administrator,  v.  United  States,  22  Ct.  CI.  408,  428-429 
(1887). 

"Acts  of  retorsion  are  not  acts  of  war;  they  are  pacific.  When  resorted 
to  between  independent  states,  they  are  intended  to  prevent  the  necessity 
of  resorting  to  war.  Nor  can  the  passing  of  such  an  act  be  considered  a 
granting  of  letters  of  marque  and  reprisal.  Letters  of  marque  and  reprisal 
are  a  commission  to  attack  the  subjects  of  a  foreign  state  on  the  high  seas 
beyond  the  limits  of  the  state,  seize  their  property,  and  put  it  in  sequestra- 
tion. It  is  a  hostile  act  of  aggression.  Martens.  Law  of  Nations,  270 ;  1 
Black.  Com.  258.  These  terms  were  perfectly  understood  by  the  framers  of 
our  Constitution,  and  they  are  used  in  the  sense  in  which  they  are  ordina- 
rilv  understood  by  enlightened  jurists."  Wood,  arguendo,  in  Gibbons  v. 
Livingston,  6  N.  J.  Law,  236,  255  (1822). 

For  the  nature  of  reprisal;^  and  retorsion,  see  Henry  Wheaton's  Elements 
of  International  Law,  Dana's  Edition  (1866),  870,  note  151. 

For  instances  in  v.iiieh  the  Unite.:!  States  has  acted  by  way  of  reprisal, 
see  Wheaton's  Elements  of  Internatipnal  Law  (Lawrence's  2d  Annotated 
Edition  (186.3),  507.  note  168. 

In  considering  the  admissibility  of  reprisals,  Attoruey  General  Randolph 
said:  "I  appeal  to  the  British  reasoning  on  the  Silesia  loan  [1752]  as  sup- 
porting this  sentiment,  in  the  following  passages:  'The  laws  of  nations, 
founded  upon  justice,  equity,  convenience,  and  the  reason  of  the  thing,  and 
confirmed  by  long  usage,  do  not  allow  of  reprisals,  except  in  case  of  violent 
injuries  directed  and  supported  by  the  state,  and  justice  absolutely  denied, 
in  re  minime  dubia,  by  all  the  tribunals,  and  afterward  by  the  prince.'  'Where 
the  judges  are  left  free,  and  give  sentence  according  to  their  conscience, 
though  it  should  be  erroneous,  that  would  be  no  ground  for  reprisals.  Upon 
doubtful  questions,  different  men  think  and  judge  differently ;  and  all  a 
friend  can  desire,  is.  that  justice  should  be  as  impartially  administered  to 
him,  as  it  is  to  the  subjects  of  that  prince  in  whose  courts  the  matter  is  tried.' 
Under  such  circumstances,  a  citizen  must  acquiesce."  Edmund  Randolph  to 
Secretary  of  State  Thomas  Jefferson,  April  12,  1793.     1  Op.  Atty.  Gen.  30,  32, 

For  the  facts  of  the  Silesian  Loan  Case,  the  im]X)rtance  of  which  rests 
more  upon  the  able  exposition  of  the  law  of  maritime  capture  than  upon  the 
question  of  reprisals,  see  the  long  account  in  2  Martens,  Causes  Celebres 
(2d  Ed.  1858)  97,  or  the  brief  note  in  Hall,  Int  Law  (4tli  Ed.  1895)  454. 


Ch.  6)  REPRISALS  517 

GRAY  V.  UNITED  STATES. 
(Court  of  Claims  of  the  United  States,  1886.    21  Ct.  CI.  340.) 

Davis,  J.,  delivered  the  opinion  of  the  court."  *  *  =;-  The  de- 
fendants contend  that  the  seizures  were  justified,  as  war  existed  be- 
tween this  country  and  France  during  the  period  in  question;  and, 
as  we  could  have  no  claim  against  France  for  seizure  of  private  prop- 
erty in  time  of  war,  the  claimants  could  have  no  resulting  claim  against 
their  own  government ;  that  is,  the  claims,  being  invalid,  could  not 
form  a  subject  of  set-off  as  it  is  urged  these  claims  did  in  the  second 
article  of  the  treaty  of  1800.  It  therefore  becomes  of  great  importance 
to  determine  whether  there  was  a  state  of  war  between  the  two  coun- 
tries. 

It  is  urged  that  the  political  and  judicial  departments  of  each  govern- 
ment recognized  the  other  as  an  enemy ;  that  battles  were  fought  and 
blood  shed  on  the  high  seas ;  that  property  was  captured  by  each 
from  the  other  and  condemned  as  prize ;  that  diplomatic  and  consular 
intercourse  was  suspended,  and  that  prisoners  had  been  taken  by  each 
government  from  the  other  and  "held  for  exchange,  punishment,  or 
retaliation,  according  to  the  laws  and  usages  of  war."  While  these 
statements  may  be  in  substance  admitted  and  constitute  very  strong 
evidence  of  the  existence  of  war,  still  they  are  not  conclusive,  and  the 
facts,  even  if  they  existed  to  the  extent  claimed,  may  not  be  incon- 
sistent with  a  state  of  reprisals  straining  the  relations  of  the  States  to 
their  utmost  tension,  daily  threatening  hostilities  of  a  more  serious 
nature,  but  still  short  of  that  war  which  abrogates  treaties,  and  after 
the  conclusion  of  which  the  parties  must,  as  between  themselves,  be- 
gin international  life  anew.     *     *     * 

The  question  has  been  carefully  examined  by  authorized  and  com- 
petent officers  of  the  political  department  of  the  government,  and  we 
may  turn  to  their  statements  as  expository  of  the  views  of  that  branch 
upon  the  subject. 

In  1827  Senator  Holmes  reported  that  there  had  been  "a  partial  war," 
but  no  "such  actual  open  war  as  would  absolve  us  from  treaty  stipu- 
lations. *  *  *  ij-  ^as  never  understood  here  that  this  was  such  a 
war  as  would  annul  a  treaty."  19th  Cong.,  2d  Sess.,  Senate  Rep.,  Feb. 
8,  1827,  p.  8.     *     *     * 

Finally,  Mr.  Sumner  considered  the  acts  of  Congress  as  "vigorous 
measures,"  putting  the  country'  "in  an  attitude  of  defense";  and  that 
the  "painful  condition  of  things,  though  naturally  causing  great  anxi- 
ety, did  not  constitute  war."    3Sth  Cong.,  1st  Sess.,  Rep.  41,  1864. 

The  judiciary  also  had  occasion  to  consider  the  situation,  *  *  * 
in  the  case  of  Bas  v.  Tingy,  4  Dall.  37,  1  L.  Ed.  731,  wherein  the  facts 
were  as  follows :    Tingy,  commander  of  the  public  armed  ship  the 

2  Parts  of  the  opinkm  are  omitted. 


518  MEASURES  OF   REDRESS  IN  TIME   OP   PEACE  (Part  2 

Ganges,  had  libelled  the  American  Ship,  Eliza,  Bas,  master,  setting 
forth  that  she  had  been  taken  on  the  high  seas  by  a  French  privateer 
the  31st  March,  1799  and  retaken  by  him  late  in  the  following  April, 
wherefore  salvage  was  claimed  and  allowed  below.  Upon  appeal  the 
judgment  was  affirmed.     *     *     * 

Justice  Washington  considers  the  very  point  now  in  dispute,  saying 
(4Dall.  p.  40,  IL.  Ed.  731): 

"The  decision  of  tliis  question  must  depend  upon  *  *  *  whether 
at  the  time  of  passing  the  act  of  Congress  of  the  2d  of  March,  1799, 
there  subsisted  a  state  of  war  between  the  two  nations.  It  may,  I  be- 
lieve, be  safely  laid  down  that  every  contention  by  force  between  two 
nations,  in  external  matters,  under  the  authority  of  their  respective  gov- 
ernments, is  not  only  war,  but  public  war.  If  it  be  declared  in  form 
it  is  called  solemn  and  is  of  the  perfect  kind,  because  one  whole  nation 
is  at  war  with  another  whole  nation,  and  all  the  members  of  the  na- 
tion declaring  war  are  authorized  to  commit  hostilities  against  all  the 
members  of  the  other  in  every  place  and  under  every  circumstance.  In 
such  a  war  all  the  members  act  under  a  general  authority,  and  all  the 
rights  and  consequences  of  war  attach  to  their  condition.  But  hostil- 
ities may  subsist  between  two  nations  more  confined  in  its  nature  and 
extent,  being  limited  as  to  places,  persons,  and  things,  and  this  is  more 
properly  termed  'imperfect  war,'  because  not  solemn,  and  because  those 
who  are  authorized  to  commit  hostilities  act  under  special  authority  and 
can  go  no  further  than  to  the  extent  of  their  commission.  Still,  how- 
ever, it  is  public  war,  because  it  is  an  external  contention  by  force  be- 
tween some  of  the  members  of  the  two  nations,  authorized  by  the  legiti- 
mate powers.  It  is  a  war  between  the  two  nations,  though  all  the 
members  are  not  authorized  to  commit  hostilities  such  as  in  a  solemn 
war  where  the  Government  retains  the  general  power." 

Applying  this  rule  he  held  that  "an  American  and  French  armed 
vessel,  combating  on  the  high  seas,  were  enemies/'  but  added  that 
France  was  not  styled  "an  enemy"  in  the  statutes,  because  "the  degree 
of  hostility  meant  to  be  carried  on  was  sufficiently  described  without 
declaring  war,  or  declaring  that  we  were  at  war.  Such  a  declaration 
by  Congress  might  have  constituted  a  perfect  state  of  war  which  was 
not  intended  by  the  government."     *     *     * 

The  Supreme  Court,  therefore,  held  the  state  of  affairs  now  under 
discussion  to  constitute  partial  warfare,  limited  by  the  acts  of  Con- 
gress. 

The  instructions  to  Ellsworth,  Davie,  and  Murray,  dated  October  22, 
1799,  did  not  recognize  a  state  of  war  as  existing,  or  as  having  ex- 
isted, for  they  said  the  conduct  of  France  would  have  justified  an 
immediate  declaration  of  war,  but  the  United  States,  desirous  of  main- 
taining peace,  contented  themselves  "with  preparations  for  defense  and 
measures  calculated  to  defend  their  commerce."     Doc.   102,  p.  561. 


Ch.  6)  REPRISALS  *  519 

Yet  all  the  measures  relied  upon  as  evidence  of  existing  war  had  taken 
effect  prior  to  the  date  of  these  instructions.     *     *     * 

France  did  not  consider  that  war  existed,  for  her  minister  said  that 
the  suspensions  of  his  functions  was  not  to  be  regarded  as  a  rupture 
between  the  countries,  "but  as  a  mark  of  just  discontent"  (15  Nov., 
1796,  Foreign  Relations,  vol.  1,  p.  583),  while  J.  Bonaparte  and  his 
colleagues  termed  it  a  "transient  misunderstanding"  (Doc.  102,  p.  590), 
a  state  of  "misunderstanding"  which  had  existed  "through  the  acts  of 
some  agents  rather  than  by  the  will  of  the  respective  'governments,'  " 
and  which  had  not  been  a  state  of  war,  at  least  on  the  side  of  France 
(Id.  616). 

The  opinion  of  Congress  at  the  time  is  best  gleaned  from  the  laws 
which  it  passed.  The  important  statute  in  this  connection  is  that  of 
May  28,  1798  (1  Stat.  L.  561)  entitled  "An  act  more  effectually  to  pro- 
tect the  commerce  and  coasts  of  the  United  States."  Certainly  there 
was  nothing  aggressive  or  warlike  in  this  title. 

The  act  recites  th5t,  whereas  French  armed  vessels  have  committed 
depredations  on  American  commerce  in  violation  of  the  law  of  nations 
and  treaties  between  the  United  States  and  France,  the  President  is 
authorized — not  to  declare  war,  but  to  direct  naval  commanders  to 
bring  into  our  ports,  to  be  proceeded  against  according  to  the  law  of 
nations,  any  such  vessels  "which  shall  have  committed,  or  which  shall 
be  found  hovering  on  the  coasts  of  the  United  States  for  the  purpose 
of  committing,  depredations  on  the  vessels  belonging  to  the  citizens 
thereof ;  and  also  to  retake  any  ship  or  vessel  of  any  citizen  or  citizens 
of  the  United  States  which  may  have  been  captured  by  any  such  armed 
vessel." 

This  law  contains  no  declaration  or  threat  of  war ;  it  is  distinctly  an 
act  to  protect  our  coasts  and  commerce.  It  says  that  our  vessels  may 
arrest  a  vessel  raiding  or  intending  to  raid  upon  that  commerce,  and 
that  such  vessel  shall  not  be  either  held  by  executive  authority  or  con- 
fiscated, but  turned  over  to  the  admiralty  courts — recognized  inter- 
national tribunals — for  trial,  not  according  to  municipal  statutes,  as 
was  being  done  in  France,  but  according  to  the  law  of  nations.  Such  a 
statute  hardly  seems  necessary,  for  if  it  extended  at  all  the  police  pow- 
ers of  naval  commanders  upon  the  high  seas  it  was  in  the  very  slight- 
est degree,  and  it  is  highly  improbable  that  then  or  now,  with  or 
without  specific  statutory  or  other  authority,  an  American  naval  com- 
mander would  in  fact  allow  a  vessel  rightfully  flying  the  flag  of  the 
United  States  to  be  seized  on  the  high, seas  or  near  our  coasts  by  the 
cruiser  of  another  government.  But  if  the  act  did  enlarge  the  power 
of  such  officers,  and  give  to  them  authority  not  theretofore  possessed, 
it  tied  them  down  to  specified  action  in  regard  to  specified  vessels. 

They  might  seize  armed  vessels  only,  and  only  those  armed  vessels 
which  had  already  committed  depredations,  or  those  which  were  on  our 


520  MEASURES   OP  REDRESS   IN   TIME   OP  PEACE  (Part  2 

coast  for  the  purpose  of  committing  depredations,  and  they  might  re- 
take an  American  vessel  captured  by  such  an  armed  vessel.  This  stat- 
ute is  a  fair  illustration  of  the  class  of  laws  enacted  at  this  time ; 
they  directed  suspension  of  commercial  relations  until  the  end  of  the 
next  session  of  Congress,  not  indefinitely  (June  13,  1798,  Id.,  §  4,  p. 
566);  they  gave  power  to  the  President  to  apprehend  the  subjects  of 
hostile  nations  whenever  he  should  make  "public  proclamation"  of  war 
(July  6,  1798,  Id.  577),  and  no  such  proclamation  was  made;  they 
gave  him  authority  to  instruct  our  armed  vessels  to  seize  French 
"armed,"  not  merchant,  vessels  (July  9,  1798,  Id.  578),  together  with 
contingent  authority  to  augment  the  army  in  case  war  should  break  out 
or  in  case  of  imminent  danger  of  invasion.     *     *     * 

This  legislation  shows  that  war  was  imminent;  that  protection  of 
our  commerce  was  ordered,  but  distinctly  shows  that,  in  the  opinion  of 
the  legislature,  war  did  not  in  fact  exist. 

Wheaton  draws  a  distinction  between  two  classes  of  war,  saying: 
"A  perfect  war  is  where  one  whole  nation  is  at  \far  with  another  na- 
tion, and  all  the  members  of  both  nations  are  authorized  to  commit 
hostilities  against  all  the  members  of  the  other,  in  every  case,  and  un- 
der every  circumstance  permitted  by  the  general  laws  of  war.  An 
imperfect  war  is  limited  as  to  places,  persons,  and  things."  To  which 
the  editor  adds:  "Such  were  the  limited  hostilities  authorized  by  the 
United  States  against  France  in  1798."     Lawrence's  Wheaton,  518. 

In  cases  like  this  "the  judicial  is  bound  to  follow  the  action  of  the 
political  department  of  the  Government,  and  is  concluded  by  it"  (Phil- 
lips V.  Payne,  92  U.  S.  130,  23  L.  Ed.  649) ;  and  we  do  not  find  an  act 
of  Congress  or  of  the  Executive  between  the  years  1793  and  1801 
which  recognizes  an  existing  state  of  solemn  war,  although  we  find 
statutory  provisions  authorizing  a  certain  course  "in  the  event  of  a 
declaration  of  war,"  or  "whenever  there  shall  be  a  declared  war,"  or 
during  the  existing  "differences."  One  act  provides  for  an  increase  of 
the  army  "in  case  war  shall  break  out,"  while  another  restrains  this 
increase  "unless  war  shall  break  out"  (1  Stat.  L.  558,  577,  725,  750). 
See  also  Acts  of  Feb.  10,  1800,  and  May  14,  1800.     *     *     * 

We  are,  therefore,  of  opinion  that  no  such  war  existed  as  operated 
to  abrogate  treaties,  to  suspend  private  rights,  or  to  authorize  indis- 
criminate seizures  and  condemnations ;  that,  in  short,  there  was  no 
public  general  war,  but  limited  war  in  its  nature  similar  to  a  prolonged 
series  of  reprisals.^ 

8  In  Gushing,  Adm'r,  v.  United  States,  22  Ct.  01.  1,  39  (18S6),  Judge  Davis, 
after  remarking  tliat  the  acts  of  Congress  were  not  intended  to  endanger 
French  commerce,  and  that  only  armed  vessels  were  to  he  seized  and  Amer- 
ican vessels  recaptured,  leaving  peaceable  French  merchantmen  to  pursue 
their  voyages  unmolested,  said: 

"A  system  of  reprisals  goes  further  than  this,  for  it  is  based  upon  tho 
principle  of  compensation,  and  is  aggressive,  not  defensive,  in  spirit  and 
intent.    'Reprisals  [says  Yattel,  lib.  2,  p.  342]  are  used  between  nation  and 


Ch.  6)  REPRISALS  521 

nation  to  do  justice  to  themselves  wlien  they  can  not  otherwise  obtain  it. 
If  a  nation  lias  taken  possession  of  what  belongs  to  another ;  if  it  refuses  to 
pay  a  debt,  to  repair  an  injury,  to  make  a  just  satisfaction,  the  other  may 
seize  what  belongs  to  it  and  apply  it  to  its  own  advantage,  till  it  has  obtain- 
ed what  is  due  for  interest  and  damage,  or  keep  it  as  a  pledge  until  full  sat- 
isfaction has  been  made.  In  the  last  case  it  is  rather  a  stoppage  or  a  sei- 
zure than  reprisals,  but  they  are  frequently  confounded  in  common  language,' 

"Dr.  Woolsey  says  repiisals  consist  in  recovering  what  is  our  own  by 
force,  then  in  seizing  an  equivalent.  We  do  not  attempt  to  lay  down  any 
general  rule  of  law  on  this  question  of  reprisals,  but  a  study  of  the  au- 
thorities leads  to  the  conclusion  that  the  action  is  affirmative  and  aggressive 
in  character,  having  for  its  object  compensation.  The  essence  of  reprisals 
has  been  said  to  be  security — that  is,  the  seizure  of  property  for  protection 
until  just  claims  are  settled,  but  we  do  not  see  that  the  principle  of  compen- 
sation is  thereby  changed,  as  the  seizure  of  property  for  security  must  be 
directed  by  an  effort  to  olbtain  security  sufficient  in  amount  to  provide  com- 
pensation should  the  demand  for  redress  be  unsuccessful." 

Recurring  to  the  same  subject  in  Hooper,  Adm'r,  v.  United  States,  22  Ct,  CI. 
408,  456  (1887),  Judge  Davis,  who  had  delivered  the  opinion  of  the  court  in 
the  principal  case,  said  vshat  may  be  c-ousidered  as  the  final  word  on  this 
subject,  as  far  as  the  Court  of  Claims  of  the  United  States  is  concerned: 

"Acts  of  retaliation  are  admitted  to  be  justifiable  under  certain  circiun- 
stances.  They  may  exist  when  the  two  nations  are  otherwise  at  peace,  but 
they  are  in  their  nature  acts  of  warfare.  They  depart  from  the  field  of 
negotiation  into  that  of  force,  and,  as  is  war,  are  justified  by  a  .successful  re- 
sult. To  term  the  decrees  of  France  and  the  acts  of  their  privateers  under 
them  'acts  of  reprisal'  does  not  alter  the  facts  or  the  legal  position.  That 
position  has  been  defined  by  the  Supreme  Court  of  the  United  States  as  lim- 
ited partial  war.  We,  following  the  path  indicated  by  that  tribunal,  have 
defined  it  as  'limited  war  in  its  nature  similar  to  a  prolonged  series  of  repri- 
sals.' " 


PART  III 

RIGHTS  AND  DUTIES  OF  NATIONS  IN 
TIME  OF  WAR 


CHAPTER  I 
COMMENCEMENT  AND    DEFINITION  OF  WAR 


THE  NAYADE. 

(High  Court  of  Admiralty,  1802.    4  C.  Rob.  251.) 

This  was  a  case  of  a  quantity  of  cotton  and  sugar,  taken  in  1801. 
on  a  voyage  from  Lisbon  to  Bordeaux,  and  claimed  on  behalf  of  Mr. 
Beljeian,  describing  himself  as  a  Prussian  merchant,  though  resident 
in  Lisbon.     *     *     * 

Sir  W.  ScoTT.^  This  is  the  case  of  property  claimed  for  a  person 
who  was  first  described  in  the  claim  "as  a  Lisbon  merchant,  and  a 
subject  of  Her  Majesty  the  queen  of  Portugal."  Since  the  time  of 
giving  in  the  claim,  it  has  been  thought  convenient  to  alter  that  de- 
€cription,  and  to  represent  him  "as  a  subject  of  the  king  of  Prussia, 
resident  in  Lisbon."  It  is  admitted,  however,  that  he  is  resident  in 
Lisbon,  and  the  question  will  be,  whether  that  fact  is  not  sufficient  to 
preclude  him  from  receiving  the  restitution  of  this  property. 

It  may  be  necessary  to  consider,  in  the  first  place,  the  situation  in 
which  Portugal  then  stood.  The  relation  which  that  country  has 
borne  towards  France,  at  different  periods,  has  been  extremely  am- 
biguous. At  first  there  was  a  wish  on  the  part  of  Portugal  not  to 
consider  herself  as  being  at  war  with  France;  and  if  a  submissive  con- 
duct, and  a  disposition  not  to  resent  injuries,  could  have  afforded  pro- 
tection against  the  violence  of  France,  she  might  have  escaped.  But 
it  is  equally  notorious,  that  all  these  concessions  were  made  without 
success,  and  proved  utterly  inefficacious  to  prevent  Portugal  from 
being  implicated  in  a  war  with  France. 

In  cases  of  this  kind,  it  is  by  no  means  necessary  that  both  coun- 
tries should  declare  war.^     Whatever  might  be  the  prostration  and 

1  Part  of  the  opinion  is  omitted. 

2  There  must  be  a  declaration,  or  its  equivalent.  The  Brig  Dart,  1  Stew. 
30  (1808). 

(522) 


Ch.  1)  C03D1ENCEMEXT   AND   DEFINITION   OF   WAR  523 

submissive  demeanor  on  one  side,  if  France  was  unwilling  to  accept 
that  submission,  and  persisted  in  attacking  Portugal,  it  was  suffi- 
cient; and  it  cannot  be  doubted  by  anybody  who  has  attended  to  the 
common  state  of  public  affairs,  that  Portugal  was  considered  as  en- 
gaged in  war  with  France.  Without  adverting  to  particular  instances, 
it  is  notorious  and  evident  from  this  very  case,  that  there  was  a  French 
commissary  stationed  at  Lisbon  for  the  regulation  of  French  prison- 
ers. At  the  time  of  this  transaction,  Portugal  must,  indubitably,  be 
taken  to  have  been  at  war  with  France.     *     *     * 


THE  ELIZA  ANN  et  al. 

(High  Court  of  Admiralty,  1813.    1  Dodson,  244.) 

Sir  W.  Scott,  *  *  *  3  'j^j^jg  ^^as  the  state  of  things  originally ; 
British  ships  were  excluded  from  the  ports  of  Sweden,  and  the  island 
of  Hanoe  was  occupied  by  British  forces. 

After  this,  a  declaration  of  war  was  issued  by  the  government  of 
Sweden;  but  it  is  said,  that  the  two  countries  were  not,  in  reality,  in 
a  state  of  war,  because  the  declaration  was  unilateral  only.  I  am, 
however,  perfectly  clear  that  it  was  not  tlie  less  a  war  on  that  account, 
for  war  may  exist  without  a  declaration  on  either  side.  It  is  so  laid 
down  by  the  best  writers  on  the  law  of  nations.  A  declaration  of 
war  by  one  country  only  is  not,  as  has  been  represented,  a  mere  chal- 
lenge, to  be  accepted  or  refused  at  pleasure  by  the  other.  It  proves 
the  existence  of  actual  hostilities  on  one  side  at  least,  and  puts  the 
other  party  also  into  a  state  of  war,  though  he  may,  perhaps,  think 
proper  to  act  on  the  defensive  only.  It  is  the  less  necessary  for  me 
to  insist  on  the  truth  of  this  position,  since  the  language  of  the  treaty 
places  the  matter  beyond  dispute.  What  appears  to  have  been  the 
motive  which  led  to  the  appointment  of  the  •plenipotentiaries?  Why, 
"a  reciprocal  desire  to  put  an  end  to  the  war  which  had  taken  place ;" 
and  this  they  are  authorized  to  carry  into  effect.  Here,  then,  is  a  di- 
rect recognition  of  the  existence  of  an  antecedent  state  of  war  be- 
tween the  two  countries.  I  cannot  dive  into  the  motives  which  led  to 
the  hostile  declaration  on  the  part  of  the  Swedish  government ;  I  can 
only  look  to  the  broad  fact,  the  existence  of  the  war.  It  may  be  true 
that  Sweden  resorted  to  the  measure  with  great  reluctance.  It  is  to 
be  hoped  that  all  countries  are  unwilling  to  enter  upon  hostilities,  and 
that  they  have  recourse  to  them  only  with  a  view  of  avoiding  greater 
evils.  It  is  said,  that  Sweden  acted  from  fear  of  the  resentment  of 
France,  and  it  may  be  that  she  did  so;   but,  from  whatever  cause  it 

3  For  the  facts  of  the  case,  see  ante,  p.  43S.  Parts  of  the  opinion  are  omit- 
ted. 


524  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   WAR         (Part  3 

proceeded,  the  fact  is,  that  a  war  did  take  place,  though  it  was  carried 
on  with  inertness  by  Sweden,  and  with  forbearance  by  Great  Brit- 
ain.    *     *     *  4 

4  In  The  Teutonia,  L.  R.  1S71-1S73.  4  P.  C.  A.  C.  171  (1872),  arising  out  of 
the  Franco-Prussian  War,  Lord  Justice  Mellish  said: 

"Their  Lordships  have  great  difficulty  in  agreeing  with  the  learned  Judge 
that  the  Teutonia  could  not  have  entered  Dunlcirk  without  being  exposed  to 
the  penalties  of  trading  with  the  enemy  of  its  Country  on  the  16th  of  July. 
There  does  not  appear  to  their  Lordships  to  be  any  satisfactory  evidence 
that  a  state  of  war  existed  between  France  and  Prussia  prior  to  the  l!>th  of 
July.  Their  Lordships  do  not  think  that  either  the  declaration  made  by  the 
French  Minister  to  the  French  Chambers  on  the  16th  of  July,  or  the  telegram 
sent  by  Count  Bismarck  to  the  Prussian  Ambassador  in  London,  in  which 
he  states  that  that  declaration  appears  to  be  equal  to  a  declaration  of  war, 
amounts  to  an  actual  declaration  of  war.  And  though  it  is  true,  as  stated  by 
the  learned  judge,  that  a  war  may  exist  de  facto  without  a  declaration  of  war, 
yet  it  appears  to  their  Lordships  that  this  can  only  be  effected  by  an  actual 
commencement  of  hostilities,  which,  in  this  case,  is  not  alleged." 

For  a  ease  involving  the  exact  date  of  the  outbreak  of  the  Spanish-Ameri- 
can War  of  1S9S,  see  United  States  v.  Pelly.  4  Commercial  Cases,  100  (1899). 

In  the  case  of  The  Panama,  decided  at  the  same  time  as  The  Buena  Ven- 
tura, 87  Fed.  927,  933  (1898),  Locke,  J.  said:  "The  Panama  sailed  from 
New  York  before  the  21st  of  April,  1S9S,  and  was  upon  the  high  seas  at  that 
time  and  at  the  time  of  capture.  The  fact  that  there  had  been  no  formal 
proclamation  or  declaration  of  war  before  she  had  sailed  or  at  the  time  she 
was  captured,  or  that  she  had  at  a  recent  date  left  a  port  of  the  United 
States,  cannot  be  considered  as  exempting  her  from  the  liability  of  all  ene^ 
my's  property  to  capture,  unless  coming  directly  within  the  language  of  the 
President's  proclamation.  The  practice  of  a  formal  proclamation  before  rec- 
ognizing an  existing  war  and  capturing  enemy's  property  has  fallen  into  dis- 
use in  modem  times,  and  actual  hostilities  may  determine  the  date  of  the 
commencement  of  war,  although  no  proclamation  may  have  been  issued, 
no  declaration  made  or  no  action  of  the  legislative  department  of  the  gov- 
ernment had.  This  date  has  been  declared  by  the  act  of  Congress  of  April 
25,  1898,  and  by  the  proclamation  of  the  President  of  the  next  day  to  have 
been  April  21,  1898,  including  that  day,  so  that  any  Spanish  property  afloat, 
captured  from  that  time,  became  liable  to  condemnation,  unless  exempt  by 
the  executive  proclamation."    Articles  4  and  5. 

This  case  was  affirmed  on  appeal.  The  Panama,  176  U.  S.  535,  20  Sup.  Ct. 
480,  44  L.  Ed.  577  (1900). 

To  obviate  in  the  future  the  doubt  and  difficulty  of  the  past  in  determin- 
ing the  date  at  which  hostilities  began,  the  Second  Hague  Peace  Conference 
of  1907  adopted  a  Convention  Relative  to  the  Opening  of  Hostilities.  See 
appendix,  post,  p.  1138. 

It  is  believed  that  the  various  parties  to  the  World  War  of  1914-1918 
complied  with  the  provisions  of  this  convention. 


Ch.  1)  COMMENCEMENT   AND   DEFINITION    OF    WAR  525 


UNITED  STATES  v.  THE  ACTIVE.  . 

(District  Court  of  the  United  States  for  the  Territory  of  Mississippi,  1S14. 

Fed.  Gas.  No.  14,420.) 

TouLMAN,  J.^  This  is  the  case  of  a  vessel  and  cargo  belonging  to 
the  enemy  taken  in  sight  of  the  fort  at  Mobile  Point,  by  the  troops 
stationed  at  that  place  under  the  cominand  of  Major  Wm.  Lawrence. 
It  appears  from  the  testimony  of  two  of  the  persons  who  boarded  the 
vessel,  that  a  boat  with  six  men  was  sent  out  by  the  commanding  offi- 
cer to  examine  a  vessel  which,  on  approaching,  they  found  to  be  Brit- 
ish ;  that  after  being  fired  upon  by  the  fort,  she  was  boarded  and 
taken  without  opposition,  at  the  distance  of  about  a  mile,  or  perhaps 
more,  as  one  of  them  says,  or  about  two  miles,  as  the  other  thinks; 
that  she  was  under  British  colors ;  that  the  persons  on  board  acknowl- 
edged themselves  to  be  British  subjects,  and  said  they  were  detached 
from  the  Sea  Horse  to  bring  the  schooner  Active  and  cargo  (consist- 
ing of  flour  captured  at  Alexandria)  to  Pensacola;  and  that  the  crew, 
consisting  of  six  men,  were  armed  with  muskets,  cutlasses  and  pistols. 
The  log  book  shows  her  to  be  British.  The  libel  prays  the  condemna- 
tion of  the  vessel  and  cargo  as  good  and  lawful  prize  to  the  United 
States.  A  plea,  however,  is  filed  by  Lewis  Judson  (in  the  character  of 
consignee  and  agent  for  the  captors)  to  the  jurisdiction  of  the  court, 
on  the  ground  that  as  this  court  has  jurisdiction  only  in  cases  in  which 
the  United  States  are  parties,  it  cannot  legally  entertain  a  suit  in  which 
the  private  captors  (as  it  is  alleged)  are  the  only  parties  who  have  a 
right  to  claim  the  captured  property.  The  said  plea  farther  alleges 
that  the  "schooner  Active  and  cargo  were  captured  by  Wm.  Lawrence 
and  others  on  the  high  seas,  and  not  in  the  enemy's  forts,  camps,  or 
barracks,  and,  therefore,  by  the  usages  of  the  laws  of  nations  and  the 
laws  of  war,  as  enemy's  property,  become  forfeited  to  the  said  private 
captors."     *     *     * 

1.  What  is  war?  "It  is  a  contest,"  says  Bynkershoek,  "carried  on 
between  independent  persons  for  the  sake  of  asserting  their  rights." 
Where  society  does  not  exist — where  there  is  no  such  institution  as 
that  which  we  call  government — there  individuals,  being  strictly  inde- 
pendent persons,  may  carry  on  war  against  each  other.  But  when- 
ever men  are  formed  into  a  social  body,  war  cannot  exist  between  in- 
dividuals. The  use  of  force  among  them  is  not  war,  but  a  trespass, 
cognizable  by  the  municipal  law,  Bynk.  War,  p.  128.  If  war,  then, 
be  the  act  of  the  nation,  whatever  is  done  in  the  prosecution  of  it, 
must  eitlier  expressly  or  implicitly  be  under  the  national  authority. 
Whatever  private  benefits  result  from  it  must  be  from  a  national  grant. 
"War,"  says  Vattel  (page  368),  "is  that  state  in  which  a  nation  prose- 
cutes its  right  by  force."     The  right  of  making  war  belongs  alone  to 

6  Parts  of  the  opinion  are  omitted. 


526  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR  (Part  3 

the  sovereign  power.  Individuals  cannot  control  operations  of  war, 
nor  commit  any  hostility  (except  in  self-defence),  without  the  sover- 
eign's order.  The  generals  (adds  that  writer),  the  officers,  the  sol- 
diers, the  partisans,  and  those  who  fit  out  private  ships  of  war,  having 
all  commissions  from  the  sovereign,  make  war  by  virtue  of  a  particu- 
lar order.  And  the  necessity  of  a  particular  order  is  so  thoroughly  es- 
tablished, that  even  after  a  declaration  of  war  between  two  nations,  if 
the  peasants  themselves  commit  any  hostilities,  the  enemy,  instead  of 
sparing  them,  hangs  them  up  as  so  many  robbers  or  banditti.  This  is 
the  case  with  private  ships  of  war.  It  is  only  in  virtue  of  a  commis- 
sion granted  by  the  sovereign  or  his  admiralty,  that  they  are  entitled  to 
be  treated  like  prisoners  taken  in  a  formal  war.  Vatt.  Law  Nat.  pp. 
365,  366.  If,  then,  on  the  general  principles  of  civil  society,  the  whole 
operations  of  war  depend  upon  the  will  and  authority  of  the  govern- 
ment, surely  the  appropriation  and  distribution  of  the  property  ac- 
quired in  consequence  of  those  operations  must  equally  be  subject  to 
the  control  of  the  government,  and  depend  on  those  regulations  which 
it  may  establish. 

2.  What,  indeed,  is  the  object  of  war? 

Is  it  to  aggrandize  individuals,  or  is  it  to  maintain  the  rights  of  the 
nation?  "The  just  and  lawful  scope  of  every  war,"  observes  Vattel 
(page  280),  "is  to  revenge  or  prevent  injury.  If,  to  accomplish  this 
object,  it  is  expedient  to  encourage  individual  warfare,  by  granting 
all  the  profits  arising  from  it  to  the  parties  engaged,  the  nation  has  a 
right  to  promise  this  encouragement;  but  until  this  encouragement  be 
actually  offered,  it  must  follow  that  everything  which  is  required  by 
individuals,  whether  acting  as  private  persons  or  as  a  part  of  the  pub- 
lic force,  must  belong  to  the  nation  under  whose  authority  they  act." 

3.  What  rights  are  acquired  by  a  state  of  war?  "A  nation,"  says 
Bynkershoek  (page  4),  "who  has  injured  another  is  considered,  with 
everything  that  belongs  to  it,  as  being  confiscated  to  the  nation  which 
receives  the  injury."  The  rights  accruing,  therefore,  are  national 
altogether.  They  are  not  mdividual  rights.  The  case  seems  analogous 
to  that  of  the  internal  administration  of  justice.  A  civil  society — a  na- 
tion— has  the  right  of  punishing  those  who  are  guilty  of  violating 
the  public  laws.  Though  the  guilty  be  members  of  their  own  com- 
munity, they  may  forfeit  their  property  or  their  lives.  But  the  right 
of  the  body  politic  does  not  attach  itself  to  the  individual  members 
of  it.  The  nation,  indeed,  might  authorize  individuals  to  take  the 
lives  or  the  property  of  known  ofTenders;  but,  without  an  authority 
delegated  by  the  nation,  individuals  have  no  such  right.  A  right  in  pri- 
vate persons  to  avenge  violations  of  the  law  does  not  follow  as  a  natural 
consequence  from  the  circumstance  of  their  being  members  of  the  great 
political  body.  On  the  contrary,  the  very  same  act  which  would  be  re- 
tributive justice  when  emanating  from  the  sovereign  power  would  be- 
come murder  or  robbery  in  the  individual.    Why  should  it  be  otherwise. 


Ch.  1)  COMMENCEMENT   AND   DEFINITION    OF    WAR  527 

as  it  regards  our  intercourse  with  other  nations  ?  Why  should  a  nation 
be  less  jealous  of  its  rights  with  regard  to  hostile  nations  than  with 
regard  to  hostile  individuals?  Why  less  jealous  when  they  are  en- 
croached upon  on  a  larger  scale  than  when  they  are  encroached  upon  on 
a  scale  truly  small  and  insignificant  ?  And  even  admitting  that  in  the 
one  case  the  public  authority  permits  an  individual  to  execute  the  sen- 
tence of  the  law,  and  in  the  other  to  attack  and  vanquish  the  public 
enemy,  it  will  not  follow  that  in  either  case  the  property  of  the  enemy 
is  to  become  the  property  of  the  individual  by  whom  the  national  will  is 
carried  into  execution.  This,  it  should  seem,  must  depend  on  express 
stipulations  made  in  behalf  of  the  nation.  Agreeably  to  these  principles, 
the  celebrated  M.  De  Vattel,  after  observing  that  a  nation  has  the  right 
to  deprive  the  enemy  of  his  possessions  and  goods,  of  everything  which 
may  augment  his  forces  and  enable  him  to  make  war,  goes  on  to  re- 
mark, that  booty,  or  the  movable  property  of  the  enemy  taken  in  war, 
belongs  to  the  sovereign  making  war,  no  less  than  his  towns  and  lands : 
for  he  alone  (the  sovereign  authority)  has  such  claims  against  the 
enemy  as  warrant  him  to  seize  on  his  goods,  and  appropriate  them  to 
himself.  His  soldiers  (he  adds)  are  only  instruments  in  his  hand,  for 
asserting  his  right.  He  maintains  and  forms  them.  Whatever  they 
do  is  in  his  name  and  for  him.  Vatt.  Law  Nat.  335.  These  princi- 
ples are  equally  applicable  to  every  form  of  government.  It  is  per- 
fectly immaterial  with  whom  the  sovereign  authority  resides.  With 
whomsoever  it  resides,  its  power  is  erected  on  the  doctrine  of  its  being 
the  legitimate  representative  of  the  nation;  and  the  rights  of  the  na- 
tion are  not  surely  to  be  considered  as  being  less,  under  a  republican, 
than  under  a  monarchical  form  of  government. 

The  nation,  however,  as  I  have  observed  before,  may  give  a  bounty 
to  individual  captors — may  relinquish  a  part  of  its  rights  to  those  who 
fight  under  its  banners.  Agreeably  to  this  the  same  writer  goes  on 
to  observe  that  "the  sovereign  may  grant  to  the  troops  what  share  of 
the  booty  he  pleases.  At  present  most  nations  allow  whatever  they 
can  make  on  certain  occasions,  when  the  general  allows  of  plundering 
what  they  find  on  enemies  fallen  in  battle ;  the  pillage  of  a  camp  when 
it  has  been  forced  and  sometimes  that  of  a  town  taken  by  assault."  The 
cases  here  enumerated  seem  to  be  those  where  either  the  object  was  too 
trifling  to  become  a  matter  of  national  attention,  or  where  the  services 
previously  rendered  by  the  troops  call  for  a  degree  of  vigor  and  ex- 
ertion which  would  merit  extraordinary  encouragement.  The  whole, 
however,  is  made  to  depend  on  the  will  of  the  nation  expressed  through 
their  commanding  general.     *     *     * 

I  have  been  more  particular  in  stating  the  principles  laid  down  by 
writers  on  the  law  of  nations  (or  the  dictates  of  justice  and  common 
sense,  as  applied  to  national  intercourse),  because  the  attorney  for  the 
claimant,  whilst  acknowledging  that  the  laws  of  the  United  States  are 
silent  on  the  present  case,  places  a  great  reliance  on  the  injunctions  of 


528  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

national  law.  It  is  contended  that  the  law  of  nations  gives  the  booty  in 
this  case  to  the  captors.     *     *     * 

What,  indeed,  is  the  law  of  nations?  It  is  that  rule  of  conduct 
which  regulates  the  intercourse  of  nations  with  one  another ;  or  in  the 
words  of  the  author  last  cited,  "the  law  of  nations  is  the  science  of 
the  law  subsisting  between  nations  or  states,  and  of  the  obhgations  that 
flow  from  it."  Vatt.  Law  Nat.  49.  It  is  a  law  for  the  government 
of  national  communities  as  to  their  mutual  relations,  and  not  for  the 
government  of  individuals  of  those  communities  in  their  relation  to- 
wards one  another — nor  can  it  control  the  conduct  of  nations  towards 
their  own  citizens,  except  in  cases  involving  the  rights  of  other  na- 
tions. Property  once  transferred  by  capture  must  be  subject  to  the 
laws  of  the  nation  by  which  the  capture  is  made.  The  question  wheth- 
er it  shall  be  public  or  private  property  must  depend  on  the  regulations 
adopted  by  the  nation  making  the  capture,  and  cannot  naturally  be  re- 
garded as  subject  to  the  control  of  a  system  of  laws  which  has  respect 
to  the  laws  and  duties  of  nations  towards  one  another.  What  our 
author  states  as  to  the  practice  of  nations  towards  their  own  citizens, 
is  not,  truly  speaking,  a  delineation  of  the  laws  of  nations.  The  con- 
duct of  nations  towards  their  own  citizens  must  depend  on  their  own 
municipal  regulations.  It  is  by  the  laws  of  nations  that  we  must  deter- 
mine the  circumstances  under  which  prizes  may  be  taken,  but  what  is  to 
become  of  them  when  taken  under  the  sanction  of  that  law  cannot  de- 
pend upon  the  law  of  nations,  but  must  depend  upon  the  will  of  the 
nation  by  which  the  capture  is  made.  Individuals  of  the  capturing  na- 
tion can  have  no  right  independent  of  the  nation  to  which  they  belong. 
It  is  by  a  reliance  on  the  authority  of  their  nation,  that  they  shelter 
themselves  from  the  charge  of  robbery  or  piracy.  The  sovereign,  how- 
ever, may  distribute  the  booty  as  he  pleases.  He  may  do  it  by  a  gen- 
eral law,  or  by  special  regulations,  issued  by  his  generals,  subject  to  the 
emergency  of  the  case;  provided  the  form  of  government  admits  of 
such  a  delegation  of  authority.  Even  the  property  acquired  by  priva- 
teers depends  on  stipulations  made  with  the  supreme  power  of  the  coun- 
try to  which  they  belong.  "Persons,"  says  Vattel  (page  367),  "fitting 
out  ships  to  cruise  on  the  enemy,  in  recompense  of  their  disbursements 
and  risk  they  run,  acquire  the  property  of  the  capture ;  but  they  acquire 
it  by  grants  of  the  sovereign  who  issues  out  commissions  to  them.  The 
sovereign  either  gives  up  to  them  the  whole  capture  or  a  part — this 
depends  on  the  contract  between  them."  Vatt.  Law  Nat.  p.  367.  As 
to  those  who  without  any  authority  from  their  sovereign,  commit  dep- 
redations by  sea  or  land,  they  are  regarded  as  pirates  and  plunderers, 
and  things  taken  by  them  do  not  thereby  undergo  a  change  of  prop- 
erty.    Bynk.  p.  127.     *     *     * 

The  English  law  on  this  subject  seems  to  be  pretty  clearly  laid  down 
in  the  course  of  argument  on  the  case  of  Lord  Camden  v.  Home,  and 
I  do  not  observe  anything  in  the  decision  of  the  court  to  impeach  its 


Ch,  1)  COMMENCEMENT   AND    DEFINITION   OF   WAR  529 

accuracy.  "Whatever  is  taken  by  any  of  the  king's  subjects  from  an 
enemy  in  the  course  of  naval  operations  appertains  to  the  king,  either 
as  a  jure  coronse,  or  as  a  droit  of  admiralty,  according  to  the  circum- 
stances. If  taken  by  a  private  ship,  without  any  commission  from  the 
king,  the  prize  belongs  to  him  as  a  droit  of  admiralty.  If  such  a  ship 
had  a  commission,  only  one  tenth  of  the  prize  belongs  to  the  king, 
as  a  droit  of  admiralty,  and  the  rest  is  the  property  of  the  owner 
of  the  privateer.  But  where  the  capture  is  made  by  the  king's  ships 
or  forces,  the  property  is  vested  in  the  king's  jure  coronae;  and  in 
such  cases  it  is  adjudged  by  the  admiralty  lawful  prize  to  the  king.  But 
that  adjudication  by  no  means  imports  the  capture  to  have  been  made 
by  the  king's  ships  exclusively ;  for,  if  it  were  made  by  his  forces,  the 
adjudication  would  be  the  same.  Now,  there  are  three  sorts  of  joint 
captures :  One  by  the  king's  ship  and  privateer,  with  letters  of  marque, 
the  distribution  whereof  is  made,  according  to  the  number  of  persons 
on  board  the  several  ships;  the  king's  shai^e  being  adjudged  to  him 
in  the  jure  coronas.  The  second  instance  is  of  a  capture  by  the  king's 
ship  and  a  non-commissioned  privateer.  There  the  king  is  entitled  to 
the  whole.  To  the  privateer's  part  thereof,  it  is  a  droit  of  admiralty, 
and  the  other  in  jure  coronse  according  to  the  same  mode  of  distribu- 
tion. The  third  is  the  instance  in  question,  of  a  capture  by  the  king's 
arhiy  and  navy  conjointly;  and  there  the  whole  vests  in  him  jure  co- 
ronce."  ^ 

Agreeably  to  this  statement,  we  find  that  Sir  William  Scott  granted 
a  monition  against  the  master  and  owner  of  a  privateer  not  commis- 
sioned against  the  Dutch,  to  bring  in  the  proceeds  of  a  Dutch  prize. 
The  party  appearing  acknowledged  that  he  had  no  commission,  but 
prayed  to  be  admitted  as  a  joint  captor.  '  The  court  did  not  even 
suffer  the  case  to  be  argued,  but  observed:  "The  person  admits  that 
he  had  no  commission.  It  is  therefore  impossible  for  him  to  contend 
for  a  legal  interest  in  joint  capture.  If  he  thinks  he  has  any  equitable 
claims,  arising  from  any  services  he  has  performed,  they  may  be 
represented  to  the  admiralty.  The  former  proceedings  (of  condem- 
nation at  Jamaica)  on  the  part  of  the  non-commissioned  captor  are 
mere  nullities;  and  the  property  must  be  proceeded  against  as  droits 
of  admiralty."  4  C.  Rob.'  Adm.  72.  The  case  of  The  Rebeckah, 
which  was  a  question  of  interest  in  the  capture  of  a  vessel  made  by 
naval  officers  from  the  island  of  St.  Marcou,  a  naval  station,  used 
for  the  temporary  accommodation  of  the  crews  of  ships  of  war,  gave 
occasion  to  remarks  from  Sir  William  Scott,  very  applicable  to 
the  case  now  before  me.  "I  accede,"  says  he,  "entirely  to  what  has 
been  laid  down,  that  a  capture  at  sen.  made  by  a  force  upon  land 
(which  is  a  case  certainly  possible,  though  not  frequent),  is  considered 
generally  as  a  non-commissioned  capture,  and  inures  to  the  benefit  of 
the  lord  high  admiral.     Thus,  if  a  ship  of  the  enemy  was  compelled 

1  4  Torm  R.  .'^87. 

Scott  Int. Law — 34 


530  RIGHTS  AND   DUTIES  OF   NATIONS   IN   TIME  OF   WAR         (Part  3 

to  strike  by  a  firing  from  the  castle  of  Dover,  or  other  garrisoned  for- 
tress upon  the  land,  that  ship  would  be  a  droit  of  admiralty,  and  the  gar- 
rison must  be  content  to  take  a  reward  from  the  bounty  of  the  admi- 
ralty, and  not  a  prize  interest,  under  the  king's  proclamation.  All  title 
to  sea-prize  must  be  derived  from  commissions  under  the  admiralty, 
which  is  the  great  fountain  of  maritime  authority;  and  a  military 
force  upon  the  land  is  not  invested  with  any  commission  so  derived, 
impressing  upon  them  a  maritime  character,  and  authorizing  them  to 
take,  upon  that  element,  for  their  own  benefit.  I  likewise  think  cases 
may  occur  in  which  naval  persons,  having  a  real  authority  to  take  upon 
the  sea  for  their  own  advantage,  might  yet  entitle  the  admiralty,  and 
not  themselves,  by  a  capture  made  upon  the  sea,  by  the  use  of  a  force 
stationed  upon  the  land.  Suppose  the  crew,  or  part  of  the  crew,  of 
a  man-of-war  were  landed,  and  descried  a  ship  of  the  enemy  at  sea, 
and  that  they  took  possession  of  any  battery  or  fort  upon  the  shore,  and 
by  means  thereof,  compelled  such  ship  to  strike.  I  have  no  doubt  that 
such  a  capture,  though  made  by  persons  having  naval  commissions,  yet 
being  made  by  means  of  a  force  upon  the  land,  which  they  employed 
accidentally,  and  without  any  right  under  their  commission,  would  be 
a  droit  of  admiralty,  and  nothing  more."    1  C.  Rob.  Adm.  227.    *    *    * 

The  only  question,  then,  which  remains  to  be  considered  is,  have 
the  laws  of  the  United  States  given  to  the  military  any  share  in  prizes 
taken  by  troops  so  circumstanced?  It  may  be  desirable  that  they  had 
done  so.  But  this  ground  seems  to  be  abandoned  by  the  counsel  for 
the  army.     *     *     * 

As  to  the  laws  of  the  United  States  respecting  property  captured 
by  the  public  force,  the  md*3t  material  is  the  act  of  the  23d  April,  1800, 
for  the  better  government  of  the  navy.  This  act  gives  to  the  captors 
the  proceeds  of  vessels  and  goods  taken  on  board  of  them  when  ad- 
judged good  prize.  But  this  act  is  a  law  expressly  for  the  govern- 
ment of  the  navy  of  the  United  States ;  and,  indeed,  it  does  not  ap- 
pear to  be  contended  that  it  can  by  any  rule  of  construction  be  extended 
to  the  army.  Private  commissioned  vessels,  in  like  manner,  deserve 
their  right  to  appropriate  to  themselves  the  prizes  they  make,  from  the 
"act  concerning  letters  of  marque,  prizes,  and  prize  goods,"  passed  on 
the  26th  day  of  June,  1812.  This  act,  after  stating  the  conditions  on 
which  authority  should  be  given  to  our  vessels  to  capture  the  vessels 
and  property  of  the  enemy,  proceeds  to  vest  the  same,  when  taken 
under  such  authority,  in  the  owners,  officers,  and  crews  of  the  vessels 
by  which  prizes  should  be  made.  11  Laws  (Weightman's  Ed.)  p.  240 
(2  Stat.  759).  Had  it  been  the  intention  of  the  government  that  non- 
commissioned vessels  should  be  entitled  to  the  proceeds  of  prizes  made, 
or  that  any  persons  in  the  employ  of  the  United  States,  and  not  belong- 
ing to  the  navy  or  marines,  should  be  entitled  to  the  benefit  of  all  en- 
emy's property  taken  by  them,  it  would  surely  have  been  natural  that 
such  intention  should  have  been  expressed  in  these  or  some  other  leg- 

ScoTT  Int.Law 


Ch.  1)  COMMENCEMENT    AND   DEFINITION    OF    WAR  531 

islative  acts.  Moreover,  indeed,  it  does  not  appear  what  occasion  there 
could  be  to  provide  regulations  and  bonds  for  the  government  and  good 
conduct  of  vessels  applying  for  commissions  to  make  prizes ;  if  all  ves- 
sels of  any  description  were  authorized  to  take  and  to  appropriate  to 
their  own  use  the  property  of  the  enemy,  merely  because,  as  it  hath  been 
contended,  the  fortune  of  war  had  thrown  it  in  their  way.  *  *  * 
In  the  whole  view  of  the  case,  therefore,  now  before  the  court,  it  is 
adjudged  and  decreed,  that  the  plea  be  overruled,  and  dismissed,  with 
costs  in  court  occasioned  by  the  plea,  and  that  the  schooner  Active  and 
cargo  be  condemned  as  good  and  lawful  prize  to  the  United  States.® 


THE  PRIZE  CASES. 

(Supreme  Court  of  the  United  States,  1S62.    2  Black,  635,  17  L.  Ed.  459.) 

These  were  cases  in  which  the  vessels  named,  together  with  their 
cargoes,  were  severally  captured  and  brought  in  as  prizes  by  public 
ships  of  the  United  States.  The  libels  were  filed  by  the  proper  Dis- 
trict Attorneys,  on  behalf  of  the  United  States  and  on  behalf  of  the 
officers  and  crews  of  the  ships,  by  which  the  captures  were  respectively 
made.  In  each  case  the  District  Court  pronounced  a  decree  of  condemn 
nation,  from  which  the  claimants  took  an  appeal.     *     *     * 

Mr.  Justice  GriEr.  There  are  certain  propositions  of  law  which 
must  necessarily  affect  the  ultimate  decision  of  these  cases,  and  many 

8  In  the  course  of  the  principal  case  frequent  reference  is  made  to  priva- 
teers and  non-commissioned  vessels.  The  following  cases  deal  with  these 
questions: 

In  Hooper,  Adm'r,  v.  United  States,  22  Ct.  CI.  408,  429  (1SS7),  Judge 
Davis,  speaking  for  the  court,  said: 

"A  privateer  is  an  armed  vessel  belonging  to  one  or  more  private  individ- 
uals, licensed  by  government  to  take  prizes  from  an  enemy ;  its  authority  In 
this  regard  must  depend  altogether  iipon  the  extent  of  the  commission  issued 
to  it,  and  is  qualified  and  limited  by  the  laws  under  which  the  commission 
is  issued.    The  Thomas  Gibbons,  8  Cranch,  421,  3  L.  Ed.  610  (1814)." 

In  The  Curlew,  Stew.  Adra.  312,  .326,  (1812)  Dr.  Croke  said:  "By  the  law 
of  nations,  as  well  as  the  municipal  law  of  this  country,  no  private  vessel 
can  cruize  against  the  enemy,  but  under  a  lawful  coromission.  The  power 
of  granting  such  commission  is  the  right  only  of  the  sovereign,  or  of  those  to 
whom  he  has  deputed  it.  The  Lord  High  Admiral,  when  there  is  one,  and 
the  Lords  Commissioners  of  the  Admiralty,  who,  when  there  is  no  Lord 
Admiral,  are  invested  with  his  general  rights,  are  the  only  persons  to  whom  it 
is  usiml  for  the  king  to  give  authority  to  grant  such  commissions,  by  them- 
selves or  by  such  persons  as  they  shall  appoint.  *  *  *  j3y  the  law  of  na- 
tions: If  any  private  subjects  cruize  against  the  enemy  without  such  com- 
mission, they  are  liable  to  be  treated  as  pirates." 

Sailing  and  taking  prize  without  letter  of  marque  vests  prize  not  in  in- 
dividual captor  but  in  the  king  as  droit  of  admiralty,  Kichol  v.  Goodall,  10 
Ves.  Jr.  155,  (1804),  per  Lord  Eldon;  master  must  be  on  board  when  capture 
made  though  lieutenant's  presence  was  sufficient  if  captain  were  dead.  The 
Charlotte,  5  C.  Rob.  280  (1804).  Commissions  must  likewise  be  on  board  al- 
though loss  later  does  not  matter ;  The  Estrella,  4  Wheat.  298,  304,  4  L.  Ed. 
574  (1819). 

Thpse  questions,  at  one  time  of  practical  importance,  have  only  an  his- 
torical interest  at  present,  as  privateering  was  abolished  by  the  Declaration 
of  Paris.    See  post,  p.  1132. 


532  RIGHTS   AND   DUTIES   OF  NATIONS   IN   TIME   OF   WAR         (Part  3 

Others,  which  it  will  be  proper  to  discuss  and  decide  before  we  notice 
the  special  facts  peculiar  to  each. 

They  are,  1st.  Had  the  President  a  right  to  institute  a  blockade  of 
ports  in  possession  of  persons  in  armed  rebellion  against  the  Govern- 
ment on  the  principles  of  international  law,  as  known  and  acknowledged 
among  civilized  States? 

2d.  Was  the  property  of  persons  domiciled  or  residing  within  those 
States  a  proper  subject  of  capture  on  the  sea  as  "enemies'  property"? 

I.  Neutrals  have  a  right  to  challenge  the  existence  of  a  blockade  de 
facto,  and  also  the  authority  of  the  party  exercising  the  right  to  insti- 
tute it.  They  have  a  right  to  enter  the  ports  of  a  friendly  nation  for 
the  purposes  of  trade  and  commerce,  but  are  bound  to  recognize  the 
rights  of  a  belligerent  engaged  in  actual  war,  to  use  this  mode  of  co- 
ercion, for  the  purpose  of  subduing  the  enemy. 

That  a  blockade  de  facto  actually  existed,  and  was  formally  declared 
and  notified  by  the  President  on  the  27th  and  30th  of  April,  1861,  is  an 
admitted  fact  in  these  cases. 

That  the  President,  as  the  Executive  Chief  of  the  government  and 
Commander-in-Chief  of  the  Army  and  Navy,  was  the  proper  person 
to  make  such  notification,  has  not  been,  and  cannot  be  disputed. 

The  right  of  prize  and  capture  has  its  origin  in  the  "jus  belli,"  and  is 
governed  and  adjudged  under  the  law  of  nations.  To  legitimate  the 
capture  of  a  neutral  vessel  or  property  on  the  high  seas,  a  war  must 
exist  de  facto,  and  the  neutral  must  have  a  knowledge  or  notice  of  the 
intention  of  one  of  the  parties  belligerent  to  use  this  mode  of  coercion 
against  a  port,  city,  or  territory,  in  possession  of  the  other. 

Let  us  enquire  whether,  at  the  time  this  blockade  was  instituted,  a 
state  of  war  existed  which  would  justify  a  resort  to  these  means  of 
subduing  the  hostile  force. 

War  has  been  well  defined  to  be,  "That  state  in  which  a  nation  pros- 
ecutes its  right  by  force." 

The  parties  belligerent  in  a  public  war  are  independent  nations.  But 
it  is  not  necessary  to  constitute  war,  that  both  parties  should  be  ac- 
knowledged as  independent  nations  or  sovereign  states.  A  war  may 
exist  where  one  of  the  belligerents,  claims  sovereign  rights  as  against 
the  other. 

Insurrection  against  a  government  may  or  may  not  culminate  in  an 
organized  rebellion,  but  a  civil  war  always  begins  by  insurrection 
against  the  lawful  authority  of  the  government.  A  civil  war  is  never 
solemnly  declared ;  it  becomes  such  by  its  accidents — the  number, 
power,  and  organization  of  the  persons  who  originate  and  carry  it  on. 
When  the  party  in  rebellion  occupy  and  hold  in  a  hostile  manner  a  cer- 
tain portion  of  territory ;  have  declared  their  independence ;  have  cast 
off  their  allegiance ;  have  organized  armies ;  have  commenced  hostilities 
against  their  former  sovereign,  the  world  acknowledges  them  as  bel- 
ligerents, and  the  contest  a  war.    They  claim  to  be  in  arms  to  estab- 


Ch.  1)  COMMENCEMENT    AND   DEFINITION    OF    WAR  533 

lish  their  liberty  and  independence,  in  order  to  become  a  sjovereign  state, 
while  the  sovereign  party  treats  them  as  insurgents  and  rebels  who  owe 
allegiance,  and  who  should  be  punished  with  death  for  their  treason. 

The  laws  of  war,  as  established  among  nations,  have  their  founda- 
tion in  reason,  and  all  tend  to  mitigate  the  cruelties  and  misery  pro- 
duced by  the  scourge  of  war.  Hence  the  parties  to  a  civil  war  usually 
concede  to  each  other  belligerent  rights.  They  exchange  prisoners,  and 
adopt  the  other  courtesies  and  rules  common  to  public  or  national 
wars. 

"A  civil  war,"  says  Vattel,  "breaks  the  bands  of  society  and  govern- 
ment, or  at  least  suspends  their  force  and  effect ;  it  produces  in  the  na- 
tion two  independent  parties,  who  consider  each  other  as  enemies,  and 
acknowledge  no  common  judge.  Those  two  parties,  therefore,  must 
necessarily  be  considered  as  constituting,  at  least  for  a  time,  two  sep- 
arate bodies,  two  distinct  societies.  Having  no  common  superior  to 
judge  between  them,  they  stand  in  precisely  the  same  predicament  as 
two  nations  who  engage  in  a  contest  and  have  recourse  to  arms. 

"This  being  the  case,  it  is  very  evident  that  the  common  laws  of  war 
— those  maxims  of  humanity,  moderation,  and  honor — ought  to  be  ob- 
served by  both  parties  in  every  civil  war.  Should  the  sovereign  con- 
ceive he  has  a  right  to  hang  up  his  prisoners  as  rebels,  the  opposite 
party  will  make  reprisals,  etc. ;  the  war  will  become  cruel,  horrible, 
and  every  day  more  destructive  to  the  nation." 

As  a  civil  war  is  never  publicly  proclaimed,  eo  nomine,  against  in- 
surgents, its  actual  existence  is  a  fact  in  our  domestic  history  which  the 
court  is  bound  to  notice  and  to  know. 

The  true  test  of  its  existence,  as  found  in  the  writings  of  the  sages 
of  the  common  law,  may  be  thus  summarily  stated:  "When  the  regu- 
lar course  of  justice  is  interrupted  by  revolt,  rebellion,  or  insurrection, 
so  that  the  courts  of  justice  cannot  be  kept  open,  civil  war  exists  and 
hostilities  may  be  prosecuted  on  the  same  footing  as  if  those  opposing 
the  government  were  foreign  enemies  invading  the  land." 

By  the  Constitution,  Congress  alone  has  the  power  to  declare  a  na- 
tional or  foreign  war.  It  cannot  declare  war  against  a  state,  or  any 
number  of  states,  by  virtue  of  any  clause  in  the  Constitution.  The  Con- 
stitution confers  on  the  President  the  whole  executive  power.  He  is 
bound  to  take  care  that  the  laws  be  faithfully  executed.  He  is  Com- 
mander-in-Chief of  the  Army  and  Navy  of  the  United  States,  and 
of  the  militia  of  the  several  states  when  called  into  the  actual  service 
of  the  United  States.  He  has  no  power  to  initiate  or  declare  a  war 
either  against  a  foreign  nation  or  a  domestic  state.  But  by  the  Acts 
of  Congress  of  February  28,  1795,  and  3d  of  March,  1807,  he  is  au- 
thorized to  call  out  the  militia  and  use  the  military  and  naval  forces 
of  the  United  States  in  case  of  invasion  by  foreign  nations,  and  to 
suppress  insurrection  against  the  government  of  a  state  or  of  the  United 
States. 


534  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   WAR         (Part  3 

If  a  war  be  made  by  invasion  of  a  foreign  nation,  the  President  is  not 
only  authorized  but  bound  to  resist  force  by  force.  He  does  not  initiate 
the  war,  but  is  bound  to  accept  the  challenge  without  waiting  for  any 
special  legislative  authority.  And  whether  the  hostile  party  be  a  for- 
eign invader,  or  states  organized  in  rebellion,  it  is  none  the  less  a  war, 
although  the  declaration  of  it  be  "unilateral."  Lord  Stowell  (1  Dodson, 
247)  observes,  "It  is  not  the  less  a  war  on  that  account,  for  war  may 
exist  without  a  declaration  on  either  side.  It  is  so  laid  down  by  the 
best  writers  on  the  law  of  nations.  A  declaration  of  war  by  one  coun- 
try only,  is  not  a  mere  challenge  to  be  accepted  or  refused  at  pleasure 
by  the  other." 

The  battles  of  Palo  Alto  and  Resaca  de  la  Palma  had  been  fought 
before  the  passage  of  the  Act  of  Congress  of  May  13,  1846,  which 
recognized  "a  state  of  war  as  existing  by  the  act  of  the  republic  of 
Mexico."  This  act  not  only  provided  for  the  future  prosecution  of 
the  war,  but  was  itself  a  vindication  and  ratification  of  the  act  of  the 
president  in  accepting  the  challenge  without  a  previous  formal  dec- 
laration of  war  by  Congress. 

This  greatest  of  civil  wars  was  not  gradually  developed  by  popular 
commotion,  tumultuous  assemblies,  or  local  unorganized  msurrections. 
However  long  may  have  been  its  previous  conception,  it  nevertheless 
sprung  forth  suddenly  from  the  parent  brain,  a  Minerva  in  the  full 
panoply  of  war.  The  President  was  bound  to  meet  it  in  the  shape  it 
presented  itself,  without  waiting  for  Congress  to  baptize  it. with  a  name; 
and  no  name  given  to  it  by  him  or  them  could  change  the  fact. 

It  is  not  the  less  a  civil  war,  with  belligerent  parties  in  hostile  array, 
because  it  may  be  called  an  "insurrection"  by  one  side,  and  the  insur- 
gents be  considered  as  rebels  or  traitors.  It  is  not  necessary  that  the 
independence  of  a  revolted  province  or  state  be  acknowledged  in  or- 
der to  constitute  it  a  party  .belligerent  in  a  war  according  to  the  law  of 
nations.  Foreign  nations  acknowledge  it  as  war  by  a  declaration  of 
neutrality.  The  condition  of  neutrality  cannot  exist  unless  there  be 
two  belligerent  parties.  In  the  case  of  the  Santissima  Trinidad,  7 
Wheat.  337,  5  L.  Ed.  454,  this  court  say:  "The  government  of  the 
United  States  has  recognized  the  existence  of  a  civil  war  between  Spain 
and  her  colonies,  and  has  avowed  her  determination  to  remain  neutral 
between  the  parties.  Each  party  is  therefore  deemed  by  us  a  belliger- 
ent nation,  having,  so  far  as  concerns  us,  the  sovereign  rights  of  war." 
See  also  3  Binn.  252. 

As  soon  as  the  news  of  the  attack  on  Fort  Sumter,  and  the  organi- 
zation of  a  government  by  the  seceding  states,  assuming  to  act  as 
belligerents,  could  become  known  in  Europe,  to  wit,  on  the  13th  of 
May,  1861,  the  queen  of  England  issued  her  proclamation  of  neu- 
trality, "recognizing  hostilities  as  existing  between  the  government  of 
the  United  States  of  America  and'  certain  states  styling  themselves 
the  Confederate  States  of  America."  This  was  immediately  followed 
by  similar  declarations  or  silent  acquiescence  by  other  nations. 


Ch.  1)  COMMENCEMENT    AND   DEFINITION    OP    WAR  535 

After  such  an  official  recognition  by  the  sovereign,  a  citizen  of  a 
foreign  state  is  estopped  to  deny  the  existence  of  a  war  with  all  its 
consequences  as  regards  neutrals.  They  cannot  ask  a  court  to  affect 
a  technical  ignorance  of  the  existence  of  a  war,  which  all  the  world 
acknowledges  to  be  the  greatest  civil  war  known  in  the  history  of  the 
human  race,  and  thus  cripple  the  arm  of  the  government  and  paralyze 
its  power  by  subtle  definitions  and  ingenious  sophisms. 

The  law  of  nations  is  also  called  the  law  of  nature ;  it  is  founded  on 
the  common  consent  as  well  as  the  common  sense  of  the  world.  It  con- 
tains no  such  anomalous  doctrine  as  that  which  this  court  are  now  for 
the  first  time  desired  to  pronounce,  to  wit :  That  insurgents  who  have 
risen  in  rebellion  against  their  sovereign,  expelled  her  courts,  estab- 
lished a  revolutionary  government,  organized  armies,  and  commenced 
hostilities,  are  not  enemies  because  they  are  traitors ;  and  a  war  levied 
on  the  government  by  traitors,  in  order  to  dismember  and  destroy  it, 
is  not  a  war  because  it  is  an  "insurrecton." 

Whether  the  President  is  fulfilling  his  duties,  as  Commander-in- 
Chief,  in  suppressing  an  insurrection,  has  met  with  such  armed  hostile 
resistance,  and  a  civil  war  of  such  alarming  proportions  as  will  compel 
him  jto  accord  to  them  the  character  of  belligerents,  is  a  question  to 
be  decided  by  him,  and  this  court  must  be  governed  by  the  decisions 
and  acts  of  the  political  department  of  the  government  to  which  this 
power  was  entrusted.  "He  must  determine  what  degree  of  force  the 
crisis  demands."  The  proclamation  of  blockade  is  itself  official  and 
conclusive  evidence  to  the  court  that  a  state  of  war  existed  which  de- 
manded and  authorized  a  recourse  to  such  a  measure,  under  the  cir- 
cumstances peculiar  to  the  case. 

The  correspondence  of  Lord  Lyons  with  the  Secretary  of  State  ad- 
mits the  fact  and  concludes  the  question. 

If  it  were  necessary  to  the  technical  existence  of  a  war,  that  it 
should  have  a  legislative  sanction,  we  find  it  in  almost  every  act  passed 
at  the  extraordinary  session  of  the  Legislature  of  1861,  which  was  whol- 
ly employed  in  enacting  laws  to  enable  the  government  to  prosecute  the 
war  with  vigor  and  efficiency.  And  finally,  in  1861,  we  find  Congress 
"ex  majore  cautela"  and  in  anticipation  of  such  astute  objections,  pass- 
ing an  act  "approving,  legalizing,  and  making  valid  all  the  acts,  proc- 
lamations, and  orders  of  the  President,  etc.,  as  if  they  had  been  issued 
and  done  under  the  previous  express  authority  and  direction  of  the 
Congress  of  the  United  States." 

Without  admitting  that  such  an  act  was  necessary  under  the  circum- 
stances, it  is  plain  that  if  the  President  had  in  any  manner  assumed 
powers  which  it  was  necessary  should  have  the  authority  or  sanction  of 
Congress,  that  on  the  well  known  principle  of  law,  "omnis  ratihabitio 
retrotrahitur  et  mandato  equiparatur,"  this  ratification  has  operated  to 
perfectly  cure  the  defect.  In  the  case  of  Brown  v.  United  States,  8 
Cranch,  131,  132.  133,  3  L.  Ed.  504,  Mr.  Justice  Story  treats  of  this 
subject,  and  cites  numerous  authorities  to  which  we  may  refer  to  prove 


536  RIGHTS  AND   DUTIES  OF  NATIONS   IN  TIME   OF   WAR         (Part  3 

this  position,  and  concludes,  "I  am  perfectly  satisfied  that  no  subject 
can  commence  hostilities  or  capture  property  of  an  enemy,  when  the 
sovereign  has  prohibited  it.  But  suppose  he  did,  I  would  ask  if  the 
sovereign  may  not  ratify  his  proceedings,  and  thus  by  a  retroactive 
operation  give  validity  to  them?" 

Although  Mr.  Justice  Story  dissented  from  the  majority  of  the 
court  on  the  whole  case,  the  doctrine  stated  by  him  on  this  point  is 
correct  and  fully  substantiated  by  authority. 

The  objection  made  to  this  act  of  ratification,  that  it  is  ex  post  facto, 
and  therefore  unconstitutional  and  void,  might  possibly  have  some 
weight  on  the  trial  of  an  indictment  in  a  criminal  court.  But  precedents 
from  that  source  cannot  be  received  as  authoritative  in  a  tribunal  ad- 
ministering public  and  international  law. 

On  this  first  question  therefore  we  are  of  the  opinion  that  the  Presi- 
dent had  a  right,  jure  belli,  to  institute  a  blockade  of  ports  in  possession 
of  the  states  in  rebellion,  which  neutrals  are  bound  to  regard.     *     *     *  ' 

7  The  statement  of  facts  is  abridged  and  the  balance  of  the  opinion  of  the 
court,  dealing  with  the  question  of  enemy  proi)erty  and  the  facts  of  tlie 
various  cases  on  appeal,  is  omitted. 

In  the  course  of  a  dissenting  opinion,  in  which  Chief  Justice  Taney  and 
Justices  Catron  and  Clifford  concurred,  Mr.  Justice  Nelson  said: 

"Upon  the  whole,  after  the  most  careful  consideration  of  this  case  which 
the  pressure  of  other  duties  has  admitted,  I  am  compelled  to  the  conclusion 
that  no  civil  war  existed  between  this  government  and  the  states  in  insur- 
rection till  recognized  by  the  Act  of  Congress  13th  of  July,  1S61 ;  that  the 
President  does  not  possess  the  power  under  the  Constitution  to  declare  war 
or  recognize  its  existence  within  the  meaning  of  the  law  of  nations,  which 
carries  with  it  belligerent  rights,  and  thus  change  the  country  and  all  its  cit- 
izens from  a  state  of  peace  to  a  state  of  war ;  that  this  power  belongs  ex- 
clusively to  the  Congress  of  the  United  States,  and,  consequently,  that  the 
President  had  no  power  to  set  on  foot  a  blockade  under  the  law  of  nations, 
and  that  the  capture  of  the  vessel  and  cargo  in  this  case,  and  in  all  cases 
before  us  in  which  the  capture  ocairred  before  the  13th  of  July,  1861,  for 
breach  of  blockade,  or  as  enemies'  property,  are  illegal  and  void,  and  that 
the  decrees  of  condemnation  should  be  reversed  and  the  vessel  and  cargo  re- 
stored."    2  Black,  69S-C99  (17   L.   Ed.  4-59). 

In  Stovall  V.  U.  S.,  26  Ct.  CI.,  226,  240  (1891),  Chief  Justice  (then  Justice) 
Nott  said:  "It  has  been  held  in  an  unbroken  series  of  decisions  (from  The 
Prize  Cases,  in  2  Black,  635,  17  L.  Ed.  459  (1862)  to  Young,  Assignee  of  Collie  v. 
United  States,  in  97  U.  S.  89,  24  L.  Ed.  992  (1877),  that  the  Civil  War  in  all 
hostile  operations  must  be  regarded  as  international,  and  that  'all  property 
within  enemy's  territory  is  in  law  enemy's  property,  just  as  all  persons  in 
the  same  territory  are  enemies.'  Chief  Justice  Waite,  97  U.  S.  60.  When 
the  United  States  accorded  to  the  Confederate  States  the  rights  of  a  belliger- 
ent they  became  a  hostile  power  and  their  inhabitants  public  enemies.  The 
obligations  of  the  Constitution  do  not  extend  across  military  lines  nor  into 
hostile  territory.  Tlie  law  which  governed  the  transactions  of  the  civil  war 
was  not  constitutional  law,  but  international.  It  has  been  closely  adhered  to ; 
so  closely,  that  under  the  decisions  of  the  court  of  last  resort  the  loyal  citizens 
of  the  North  were  practically  excluded  from  the  benefits  of  the  Captured  Prop- 
erty Act,  and  after  nonintercourse  began  could  do  nothing  to  save  their  proper- 
ty in  the  South  from  Confederate  confiscation ;  and  though  they  acted  in  good 
faith,  with  no  purpose  to  aid  the  rebellion,  seeking  simply  to  save  their  own 
property  in  the  South  by  directing  its  investment  there — sending  nothing  into 
the  insurgent  districts  and  bringing  nothing  out,  but  leaving  the  resources  of 
the  rebellion  precisely  as  they  found  them — their  acts  were  held  to  be  inter- 
course between  enemies,  and  the  investments  of  their  agents  illegal  and  void. 


Ch.  2)  PARTIES   TO   A   WAB  537 

CHAPTER  II 
PARTIES  TO  A  WAR 


SECTION  1.— BELLIGERENTS;  INSURGENTS 


GREAT  BRITAIN,  on  Behalf  of  BARRETT,  v.  UNITED  STATES. 

(American  and  British  Claims  Commission  under  Treaty  of  May  8,  1871. 
3    Moore's    International    Arbitrations,    2900.) 

In  the  case  of  Edward  Alfred  Barrett  v.  United  States,  No.  18,  the 
claimant,  a  British  subject,  resident  in  England  during  the  Civil  War 
in  the  United  States,  alleged  that  in  October,  1864,  he  purchased  for 
a  valuable  consideration  and  was  still  the  possessor  and  absolute  owner 
of  a  certain  "cotton-loan  bond"  of  the  Confederate  States  of  America, 
by  which  the  Confederate  States  bound  themselves  to  pay  to  the  bearer 
£200  sterUng,  with  interest  at  7  per  cent,  per  anntmi,  semiannually,  on 
the  1st  day  of  March  and  the  1st  day  of  September  in  each  year,  un- 
til redemption  of  the  principal  at  par;  that  the  govermnent  of  the 
United  States,  in  1865,  "seized  all  the  public  assets  of  the  said  Confed- 
erate States,  and  especially  a  very  large  quantity  of  cotton,  hypothe- 
cated by  the  said  Confederate  States  government  for  payment  of  the 
said  cotton  loan,  and  thus  prevented  those  states  from  paying  their 
cotton-loan  bondholders" ;  and  that  in  consequence  of  such  seizure  by 
the  government  of  the  United  States  the  principal  of  the  bond  remained 
unpaid,  and  no  interest  had  been  paid  thereon  from  the  1st  of  March, 
1865.     The  claimant  demanded  £200  and  interest. 

The  agent  of  the  United  States,  believing  the  claim  to  be  outside 
of  the  scope  of  the  submission  under  the  treaty,  sent  a  copy  of  the 
memorial  to  the  Secretary  of  State,  who  protested  against  the  presenta- 
tion of  the  claim,  and  asked  that  it  be  withdrawn.  This  request  not 
having  been  complied  with,  the  agent  of  the  United  States,  under  spe- 
cific instructions  from  the  Secretary  of  State  of  December  9,  1871, 
filed  a  motion  to  dismiss  for  want  of  jurisdiction,  on  the  ground  that 
the  memorial  stated  "no  case  for  a  claim  against  the  United  States 
within  the  intent"  of  the  treaty. 

United  States  v.  Grossmayer,  9  Wall.  72.  19  L.  Ed.  627  (1869)  ;  Dillon  v. 
Unitod  States,  5  Ct.  CI.  5SG  (1869),  affirmed  without  opinion;  Cntner.  Use  of 
Sehiffer  v.  United  States,  17  Wall.  517,  21  L.  Ed.  6.56  (1873) ;  United  States  v. 
Lapene,  17  Wall.  601,  21  L.  Ed.  693  (1873)  ;  Montgomery  v.  United  States,  15 
Wall.  395,  21  L.  Ed.  97  (1872)  ;  Stoddart  v.  United  States,  6  Ct.  Q.  340." 
See,  also,  The  Rapid,  8  Cranch,  155,  3  L.  Ed.  520  (1814),  post,  p.  &31. 


538  RIGHTS   AND   DUTIES   OP   NATIONS   IN   TIME   OF   WAR         (Part  3 

Arguments  were  submitted  on  this  motion,  and  on  December  14, 
1871,  the  commission  rendered  the  following  unanimous  decision: 

"The  commission  is  of  opinion  that  the  United  States  is  not  liable 
for  the  payment  of  debts  contracted  by  the  rebel  authorities. 

"The  rebellion  was  a  struggle  against  the  United  States  for  the  es- 
tablishment in  a  portion  of  the  country  belonging  to  the  United  States 
of  a  new  state  in  the  family  of  nations,  and  it  failed.  Persons  con- 
tracting with  the  so-called  Confederate  States  voluntarily  assumed 
the  risk  of  such  failure,  and  accepted  its  obligations,  subject  to  the  par- 
amount rights  of  the  parent  state  by  force  to  crush  the  rebel  organiza- 
tion, and  seize  all  its  assets  and  property,  whether  hypothecated  by  it 
or  not  to  its  creditors. 

"Such  belligerent  right  of  the  United  States,  to  seize  and  hold  was 
not  subordinate  to  the  rights  of  creditors  of  the  rebel  organization,  cre- 
ated by  contract  with  the  latter;  and  when  such  seizure  was  actually 
accomplished,  it  put  an  end  to  any  claim  of  the  property  which  the 
creditor  otherwise  might  have  had. 

"We  are  therefore  of  opinion  that  after  such  seizure  the  claimant 
had  no  interest  in  the  property,  and  the  claim  is  dismissed." 


WILLIAMS  V.  BRUFFY. 

(Supreme  Court  of  the  United  States,  1877.    96  U.  S.  176,  24  L.  Ed.  716). 
See  ante,  p.  40,  for  a  report  of  the  case. 


MONTOYA  V.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1901.     180  U.  S.  261,  21  Sup.  Ct.  358, 

45  L.  Ed.  521.) 

This  was  a  petition  by  the  surviving  partner  of  the  firm  of  E.  Mon- 
toya  &  Sons,  owners  of  a  ranch  in  Nogal,  New  Mexico,  against  the 
United  States,  and  the  Mescalero  Apache  Indians,  for  the  value  of  cer- 
tain live  stock  stolen  by  certain  of  these  Indians,  known  as  Victoria's 
Band,  in  March,  1880. 

From  1876  to  1879,.  the  United  States  authorities  were  engaged  in 
quelling  insurrections  of  Apache  Indians  in  Arizona,  and  in  removing 
them  to  other  reservations. 

In  1879,  Victoria,  an  Apache  Indian,  escaped  from  the  reservation, 
and  gathered  together  a  band  of  Indians,  and  began  marauding  and 
destroying  property,  and  killing  citizens.  During  1879  and  1880  they 
were  constantly  pursued  by  United  States  troops. 

The  Court  of  Claims  found  as  an  ultimate  fact  that  the  depredation 
complained  of  was  committed  by  a  band  of  Indians  not  in  amity  with 


Ch.  2)  PARTIES    TO   A   WAR  539 

the  United  States  at  the  date  of  depredation.  Upon  these  findings  of 
fact  the  court  decided  as  a  conclusion  of  law  that  the  petition  be  dis- 
missed. Claimants  appealed  to  the  Supreme  Court  of  the  United 
States. 

Mr.  Justice  Brown  delivered  the  opinion  of  the  court. 

The  first  section  of  the  Act  of  March  3,  1891,  c.  538,  26  Stat.  851, 
vests  the  Court  of  Claims  with  jurisdiction  to  inquire  into  and  finally 
adjudicate:  "First.  All  claims  for  property  of  citizens  of  the  United 
States  taken  or  destroyed  by  Indians  belonging  to  any  band,  tribe  or 
nation  in  amity  with  the  United  States,  without  just  cause  or  provoca- 
tion on  the  part  of  the  owner  or  agent  in  charge,  and  not  returned  or 
paid  for." 

To  sustain  a  claim  under  this  section,  it  is  incumbent  upon  the  claim- 
ant to  prove  that  the  Indians  taking  or  destroying  the  property  belonged 
to  a  band,  tribe  or  nation  in  amity  with  the  United  States.  The  object 
of  the  act  is  evidently  to  compensate  settlers  for  depredations  commit- 
ted by  individual  marauders  belonging  to  a  body  which  is  then  at 
peace  with  the  Government.  If  the  depredation  be  committed  by  an 
organized  company  of  men  constituting  a  band  in  itself,  acting  inde- 
pendently of  any  other  band  or  tribe,  and  carrying  on  hostilities  against 
the  United  States,  such  acts  may  amount  to  a  war  for  the  consequences 
of  which  the  government  is  not  responsible  under  this  act,  or  upon  gen- 
eral principles  of  law.  United  States  v.  Pacific  Railroad,  120  U.  S. 
227,  234,  7  Sup.  Ct.  490,  30  L.  Ed.  634. 

The  North  American  Indians  do  not  and  never  have  constituted 
"nations"  as  that  word  is  used  by  writers  upon  international  law,  al- 
though in  a  great  number  of  treaties  they  are  designated  as  "nations" 
as  well  as  tribes.  Indeed,  in  negotiating  with  the  Indians  the  terms 
"nation,"  "tribe"  and  "band"  are  used  almost  interchangeably.  The 
word  "nation"  as  ordinarily  used  presupposes  or  implies  an  independ- 
ence of  any  other  sovereign  power  more  or  less  absolute,  an  organized 
government,  recognized  officials,  a  system  of  laws,  definite  boundaries 
and  the  power  to  enter  into  negotiations  with  other  nations.  These 
characteristics  the  Indians  have  possessed  only  in  a  limited  degree,  and 
when  used  in  connection  with  the  Indians,  especially  in  their  original 
state,  we  must  apply  to  the  word  "nation"  a  definition  which  indicates 
little  more  than  a  large  tribe  or  a  group  of  affiliated  tribes  possessing  a 
common  government,  language  or  racial  origin,  and  acting  for  the  time 
being,  in  concert.  Owing  to  the  natural  infirmities  of  the  Indian  char- 
acter, their  fiery  tempers,  impatience  of  restraint,  their  mutual  jealousies 
and  animosities,  their  nomadic  habits,  and  lack  of  mental  training, 
they  have  as  a  rule  shown  a  total  want  of  that  cohesive  force  neces- 
sary to  the  making  up  of  a  nation  in  the  ordinary  sense  of  the  word. 
As  they  had  no  established  laws,  no  recognized  method  of  choosing 
their  sovereigns  by  inheritance  or  election,  no  officers  with  defined  pow- 
ers, their  governments  in  their  original  state  were  nothing  more  than 
a  temporary  submission  to  an  intellectual  or  physical  superior,  who  in 


540  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

some  cases  ruled  with  absolute  authority,  and  in  others,  was  recog- 
nized only  so  long  as  he  was  able  to  dominate  the  tribe  by  the  qualities 
which  originally  enabled  him  to  secure  their  leadership.  In  short,  the 
word  "nation"  as  applied  to  the  uncivilized  Indians  is  so  much  of  a 
misnomer  as  to  be  little  more  than  a  compliment. 

We  are  more  concerned  in  this  case  with  the  meaning  of  the  words 
"tribe"  and  "band."  By  a  "tribe"  we  understand  a  body  of  Indians  of 
the  same  or  a  similar  race,  united  in  a  community  under  one  leadership 
or  government,  and  inhabiting  a  particular  though  sometimes  ill-defined 
territory ;  by  a  "band,"  a  company  of  Indians  not  necessarily,  though 
often  of  the  same  race  or  tribe,  but  united  under  the  same  leadership 
in  a  common  design.  While  a  "band"  does  not  imply  the  separate 
racial  origin  characteristic  of  a  tribe,  of  which  it  is  usually  an  offshoot, 
it  does  imply  a  leadership  and  a  concert  of  action.  How  large  the 
company  must  be  to  constitute  a  "band"  within  the  meaning  of  the 
act  it  is  unnecessary  to  decide.  It  may  be  doubtful  whether  it  re- 
quires more  than  independence  of  action,  continuity  of  existence,  a 
common  leadership  and  concert  of  action. 

Whether  a  collection  of  marauders  shall  be  treated  as  a  "band" 
'  whose  depredations  are  not  covered  by  the  act  may  depend  not  so  much 
upon  the  numbers  of  those  engaged  in  the  raid  as  upon  the  fact  wheth- 
er their  depredations  are  part  of  a  hostile  demonstration  against  the 
government  or  settlers  in  general,  or  are  for  the  purpose  of  individual 
plunder.  If  their  hostile  acts  are  directed  against  the  government  or 
against  all  settlers  with  whom  they  come  in  contact,  it  is  evidence  of 
an  act  of  war.  Somewhat  the  same  distinction  is  applicable  here 
which  is  noticed  by  Hawkins  in  his  Pleas  of  the  Crown,  and  other 
ancient  writers  upon  criminal  law,  as  distinguishing  a  riot  from  a 
treasonable  act  of  war.  Thus  it  is  said  in  Wharton  on  Criminal  Law, 
section  1796,  summing  up  the  early  authorities  (though  never  accepted 
as  a  definition  of  treason  in  this  country) :  "That  constructive  levying 
of  war,  by  the  old  English  common  law,  is  where  war  is  levied  for 
the  purpose  of  producing  changes  of  a  public  and  general  nature  by 
an  armed  force ;  as  where  the  object  is  by  force  to  obtain  the  repeal 
of  a  statute,  to  obtain  the  redress  of  any  public  grievance,  real  or  pre- 
tended ;  to  throw  down  all  enclosures,  pull  down  all  bawdy  houses, 
open  all  prisons,  or  attempt  any  general  work  of  destruction ;  to  expel 
all  strangers,  or  to  enhance  the  price  of  wages  generally ;"  but  if  these 
acts  were  directed  against  a  particular  individual  they  would  amount 
to  nothing  more  than  an  assault  or  riot. 

While  as  between  the  United  States  and  other  civilized  nations,  an 
act  of  Congress  is  necessary  to  a  formal  declaration  of  war,  no  such  act 
is  necessary  to  constitute  a  state  of  war  with  an  Indian  tribe.  In  his 
concurring  opinion  in  Bas  v.  Tingy,  4  Dall.  37,  1  L.  Ed.  731,  recog- 
nizing France  as  a  public  enemy,  Mr.  Justice  Washington  recognized 
war  as  of  two  kinds :  "If  it  be  declared  in  form,  it  is  called  solemn, 
and  is  of  the  perfect  kind ;    because  one  whole  nation  is  at  war  with 


Ch.  2)  PARTIES    TO    A    WAR  541 

another  whole  nation,  and  all  the  members  of  the  nation  declaring  war, 
are  authorized  to  commit  hostilities  against  all  the  members  of  the 
other,  in  ever}'  place  and  under  ever>'  circumstance.  In  such  a  war,  all 
the  members  act  under  the  general  authority,  and  all  the  rights  and 
consequences  of  war  attach  to  their  condition.  But  hostilities  may  sub- 
sist between  two  nations,  more  confined  in  its  nature  and  extent,  being 
limited  as  to  places,  persons  and  things;  and  this  is  more  properly 
termed  imperfect  war,  because  not  solemn,  and  because  those  who  are 
authorized  to  commit  hostilities,  act  under  special  authority,  and  can 
go  no  farther  than  to  the  extent  of  their  commission.  Still,  however, 
it  is  public  war,  because  it  is  an  external  contention  by  force  between 
some  of  the  members  of  the  two  nations,  authorized  by  the  legitimate 
powers."  Indian  wars  are  of  the  latter  class.  We  recall  no  instance 
where  Congress  has  made  a  formal  declaration  of  war  against  an  In- 
dian nation  or  tribe ;  but  the  fact  that  Indians  are  engaged  in  acts  of 
general  hostility  to  settlers,  especially  if  the  government  has  deemed 
it  necessary  to  dispatch  a  military  force  for  their  subjugation,  is  suffi- 
cient to  constitute  a  state  of  war.  Marks  v.  United  States,  161  U.  S. 
297,  16  Sup.  Ct.  476,  40  L.  Ed.  706.  *  *  *  i 
The  judgment  of  the  Court  of  Claims  is  affirmed. 

1  The  statement  of  facts  is  rewritten  and  the  balance  of  the  opinion,  deal- 
ing with  the  interpretation  of  the  statute  and  compensation  for  damages 
caused  by  Indians,  is  omitted. 

The  principal  case  should  be  considered  in  connection  with  Part  I,  Chap- 
ter I,  States,   Section  1,  Nature  and  Kinds,  ante,  p.  19. 

From  the  Declaration  of  Independence  of  the  United  States  on  July  4,  1776, 
to  March  3,  1871.  the  Indian  tribes  were  treated  as  nations,  in  the  sense  that 
treaties  were  made  with  them  by  the  President,  and  submitted  to  the  Sen- 
ate of  the  United  States  for  its  advice  and  consent  to  theii-  ratification.  The 
change  which  took  place  in  that  year  is  thus  stated  by  Samuel  B.  Ci'andall. 
in  his  work  entitled  "Treaties,  Their  Making  and  Enforcement"  (2d  Ed.)  134 
(1916) : 

"In  the  Indian  Appropriations  Act  of  March,  3.  1871,  it  was  enacted  that 
thereafter  no  Indian  nation  or  tribe  within  the  territory  of  the  United 
States  should  be  acknowledj^ed  or  recognized  as  an  independent  nation, 
tribe,  or  power  with  which  the  United  States  might  contract  by  treaty;  but 
that  the  obligation  of  existing  treaties  'was  in  no  way  to  be  impaired  or  in- 
validated l)y  the  act.  No  formal  treaties  with  the  Indian  tril^es  have  since 
been  made,  but  agreements  with  them  have  been  laid  before  Congress  for  its 
approval.  'Since  the  Act  3d  March,  1871,  the  Indian  tribes  have  ceased  to 
be  treaty-making  powers  and  have  become  simply  the  wards  of  the  nation. 
As  such,  Congress  speaks  for  them  and  has  become  the  legislative  exponent 
of  both  guardian  and  ward.'  Nott,  C.  J.,  Jonathan  Brown  v.  United  States, 
32  Ct.  ci.  432    4.39  (1897)." 

See,  also,  Cherokee  Nation  v.  State  of  Georgia,  5  Pet.  1,  8  L,.  Ed.  25  (1831) ; 
Worcester  v.  Georgia.  6  Pot.  51.5.  8  L.  Ed.  483  (1832);  Elk  v.  Wilkins,  112 
U.  S.  ^,  5  Sup.  Ct.  41.  28  L.  M.  G43  (1SS4) :  and  United  States  v.  Kagama,  118 
U.  S.  375,  6  Sup.  Ct.  1109,  30  L.  Ed.  228  (1886). 

On  the  present  loLrnl  siatns  of  the  Indians,  see  James  Bradley  Thayer's 
article  entitled  "A  People  Without  Law"  (1891),  reprinted  in  his  "Legal  Es- 
says," 91-140  (190S). 


542  RIGHTS  AND   DUTIES-  OP   NATIONS   IN   TIME   OF   WAR         (Part  3 


SECTION  2.— RECOGNITION  OF  BELLIGERENCY;  OF 
INSURGENCY* 


THE  LILLA. 

Pistrict  Court  of  the  United  States,  D.  Massachusetts,  1862.    2  Spr.  177, 
Fed.  Cas.  No.  8,348.) 

Sprague,  District  Judge.^  This  vessel  and  cargo  were  captured  on 
the  3d  day  of  July  last,  off  Abaco,  by  the  United  States  gunboat  Quaker 
City,  and  sent  into  this  district  for  adjudication.     *     *     * 

This  vessel  was  built  in  Wells,  in  the  state  of  Maine,  and  was  called 
the  Betsy  Ames,  and  was  owned  by  the  American  claimants,  Maxwell 
and  others,  inhabitants  of  that  place.  After  the  breaking  out  of  the 
rebellion,  she  was  captured  by  a  Confederate  privateer,  under  the  com- 
mand of  Henry  S.  Libby,  and  carried  into  Charleston,  S.  C.  There 
it  is  supposed  certain  proceedings  were  had  in  a  tribunal,  acting  un- 
der the  assumed  authority  of  the  Southern  Confederacy,  by  which  the 
vessel  was  condemned  and  sold;  and  her  name  was  changed  to  the 
Mary  Wright.  The  purchasers  were  John  Fraser  &  Co.,  a  commercial 
house  doing  business  in  Charleston.  Afterwards,  on  the  2d  of  March 
last,  she  ran  the  blockade  as  before  stated,  and  was  commanded  by  the 
same  Captain  Libby. 

She  arrived  at  Liverpool  on  the  2d  day  of  April,  and  on  the  24th 
of  the  same  month  was  registered  as  a  British  vessel,  called  the  Lilla, 
and  in  the  name  of  R.  G.  Bushby  as  sole  owner.  On  the  15th  of  May 
she  sailed  from  Liverpool  for  Nassau,  N.  P.  Two  objections  are  made 
to  this  claim:  First,  that  Bushby  is  merely  a  nominal  owner,  that  the 
beneficial  interest  is  in  Fraser  &  Co.,  and  that,  if  he  holds  the  legal 
title,  it  is  only  as  trustee  for  enemies ;  second,  that  even  if  Bushby  was 
an  actual  purchaser  for  value,  and  for  his  own  use,  still  that  the  orig- 
inal title  of  Maxwell  and  others  has  never  been  divested,  and  that  their 
claim  must  prevail.  As  to  the  first  objection,  there  are  certainly  facts 
which  seem  to  be  irreconcilably  opposed  to  the  supposition  that  Bushby 
was  a  real  purchaser  for  his  own  use ;  while  every  circumstance  is  con- 
sistent with  his  having  lent  his  name  to  cover  enemy's  property,  and 
taken  the  legal  title  in  trust  for  that  purpose.     *     *     * 

The  second  objection  to  this  claim  is  also  fatal.  There  is  no  doubt 
that  this  vessel  was  the  property  of  Maxwell  and  others,  until  her 
capture  by  a  Confederate  privateer.    But  it  is  contended  that  she  has 

2  On  the  subject-matter  of  this  section,  see  George  Grafton  Wilson's  "In- 
surgency and  International  Maritime  Law,"  in  1  American  Journal  of  Inter- 
national Law,  46  (1907) ;  also,  his  Lectures  on  Insurgency,  delivered  at  the 
Naval  War  College,  Newport,  Rhode  Island,  August,  1900  (Washington,  1900). 

3  Parts  of  the  opinion  are  omitted. 


Ch.  2)  PARTIES    TO   A   WAR  543 

since  been  condemned  and  sold  by  a  prize  court  in  Charleston,  S.  C, 
and  the  purchasers  conveyed  her  to  the  claimant  Bushby.  If  this 
were  so,  of  which  there  is  no  sufficient  proof,  still,  such  proceedings 
would  not  divest  the  title  of  the  original  owner.  In  the  case  of  The 
Amy  Warwick,  2  Sprague,  123,  Fed.  Cas.  No.  341,  this  court  held, 
that  treating  the  Confederates  in  some  respects  as  belligerents  was  not 
an  abandonment  of  sovereign  rights,  and  by  no  means  precluded  us 
from  treating  them  in  other  respects  as  rebels.  Most  assuredly  I  shall 
not  recognize  the  Southern  Confederates  as  a  nation  or  as  having  a 
government  competent  to  establish  prize  courts.  No  proceedings  of  any 
such  supposed  tribunals  can  have  any  validity  here,  and  a  sale  under 
them  would  convey  no  title  to  the  purchaser,  nor  would  it  confer  upon 
him  any  right  to  give  a  title  to  others.  But  it  is  argued,  that,  under 
the  queen's  proclamation,  recognizing  the  Confederates  as  belligerents, 
a  British  court  would  hold  a  sale  to  be  valid.  What  the  decision  of  a 
jBritish  court  might  be  upon  that  question,  we  do  not  know,  it  never 
hav/D^  been  there  litigated.  But  such  a  decision,  if  made,  would  be  no 
more  binding  upon  our  courts  than  the  political  views  of  the  British 
government  would  be  upon  the  President  or  the  Congress. 

If  this  second  objection  were  the  only  matter  before  the  court,  it  is 
questionable  whether  I  ought  to  entertain  or  listen  to  it.  If  this  vessel 
had  been  arrested  on  the  ocean,  without  any  reason  for  supposing  she 
was  enemy's  property,  or  infringing  belligerent  rights  of  the  United 
States,  but  merely  to  settle  a  contested  title  between  a  citizen  of  the 
United  States  and  a  neutral  subject,  this  court  would  perhaps  refuse 
to  go  into  the  question  of  title,  and  at  once  restore  the  vessel  to  the  per- 
son from  whose  possession  she  had  been  thus  wrongfully  taken.  A 
due  regard  to  the  peace  of  the  world  might  require  that,  in  questions 
of  property  between  citizens  of  different  nations,  the  court  of  one  of 
such  nations  should  not  acquire  jurisdiction  by  the  wrongful  exercise 
of  force  upon  the  ocean.  But  such  is  not  the  posture  of  this  case. 
There  has  been  no  improper  exercise  of  force.  There  was  abundant 
reason  for  taking  this  vessel  as  enemy's  property,  and  bringing  her 
in  for  adjudication.  She  is  rightfully  withm  this  jurisdiction,  and  if 
not  condemned  as  prize,  the  court  should  deliver  her  to  the  person  hav- 
ing the  highest  title.  If,  indeed,  the  question  of  ownership  were  wholly 
between  foreigners,  the  court  might  refuse  to  decide  it,  as  we  are 
not  bound  to  exercise  jurisdiction  merely  to  settle  controversies  be- 
tween foreigners.  But  we  cannot  refuse  to  listen  to  the  claims  of  our 
own  citizens  to  property  legitimately  within  our  jurisdiction.     *     *     * 

It  remains  only  to  determine  upon  what  conditions  the  vessel  shall 
be  restored  to  Maxwell  and  others.  By  Act  1800,  c.  14,  §  1  (2  Stat. 
16),  it  is  provided  that  when  a  merchant  vessel,  belonging  to  any  per- 
son under  the  protection  of  the  United  States,  shall  have  been  taken 
by  a  public  enemy,  and  shall  be  recaptured  by  a  public  armed  ship  of 
the  United  States,  such  vessel  not  having  been  condemned  by  compe- 


544  RIGHTS   AND    DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

tent  authority  before  the  recapture,  the  same  shall  be  restored  to  the 
former  owners  upon  payment  of  one-eighth  part  of  the  true  value, 
for  and  in  lieu  of  salvage.  The  language  of  this  statute  is  perhaps  in 
strictness  applicable  only  to  captures  in  an  international  war.  But  the 
analog}'  is  so  close,  that  I  think  it  most  proper  to  adopt  the  rule  there- 
in prescribed  in  the  present  case.  By  the  fourth  section  of  the  stat- 
ute, the  whole  of  such  salvage  is  to  go  to  the  captors.  I  shall  order 
restoration  of  the  vessel  to  Maxwell  and  others  upon  payment,  to  the 
captors  of  one-eighth  part  of  the  value  thereof,  and  of  all  costs  and  ex- 
penses which  they  have  incurred  on  account  of  the  vessel.* 


UNITED  STATES  v.  THE  AMBROSE  LIGHT. 

(District  Couit  of  the  United  States,  S.  D.  New  York,  1SS5.     25  Fed.   408.) 

The  libel  in  this  case  was  filed  to  procure  the  condemnation  of  the 
brigantine  Ambrose  Light,  which  was  brought  into  this  port  as  prize 
on  June  3,  1885,  by  Lieut.  Wright  and  a  prize  crew,  detached  from  the 
United  States  gunboat  Alliance,  under  Commander  Clarke,  by  whose 
orders  the  brigantine  had  been  seized  on  the  twenty-fourth  (.»f  April. 
The  seizure  was  made  in  the  Caribbean  Sea,  about  twenty  miles  to  the 
westward  of  Cartagena.  The  commander  was  looking  for  the  insur- 
gent Preston,  by  whose  order  Colon  had  shortly  before  been  fired,  to 
the  great  loss  and  injury  of  our  citizens.  Observing  the  brigantine  dis- 
playing a  strange  flag,  viz.,  a  red  cross  on  a  white  ground,  he  bore 
down  upon  her,  and  brought  her  to  by  a  couple  of  shots  across  her 
bows.  Before  coming  to,  she  exhibited  the  Colombian  flag.  On  exam- 
ination, some  sixty  armed  soldiers  were  found  concealed  below  her 
decks,  and  one  cannon  was  aboard,  with  a  considerable  quantity  of  shot, 
shell,  and  ammunition.  Preston  was  not  found.  Her  papers  purported 
to  commission  her  as  a  Colombian  man-of-war,  and  read  as  follows 
(translation) : 

"I,  Pedroa  Lara,  governor  of  the  province  of  Barranquilla,  in  the 
state  of  Bolivar,  in  the  United  States  of  Colombia,  with  full'  powers 
conferred  by  the  citizen  president  of  the  state,  I  give  to  whom  it  may 
concern  this  patente  of  the  sailing  vessel  Ambrose  Light,  that  she  may 
navigate  as  a  Colombian  vessel  of  war  in  the  waters  touching  the  coast 
of  this  republic,  in  the  Atlantic  Ocean, 

"Therefore,  the  general  commandants  and  captains  of  the  vessels- 
of-war  of  the  friendly  nations  of  Colombia  are  requested  to  give  this 
vessel  all  the  consideration  that  by  right  belongs  to  the  vessels  of  the 
class  of  the  Ambrose  Light  of  all  civilized  nations.  In  the  faith  of 
which  we  have  given  these  presents,  and  signed  with  rubric  with  the 

«  AfiBrmed  on  appeal  to  United  States  Circuit  Court  in  U.  S.  v.  The  Lilla 
et  al..  2  Cliff.  1G9,  Fed.  Cas.  No.  15,600  (1803). 


Ch.  2)  PARTIES   TO   A   WAR  545 

secretary  of  my  office,  in  the  city  of  Barranquilla,  on  the  eighteenth 
day  of  the  month  of  April,  1885.  [Signed]     Pedroa  Lara. 

"The  Secretary  [Signed]     R.  A.  Del  Valle." 

Indorsed:    "Office  of  the  Mihtary, 

"Barranquilla,  April  18,  1885. 

"Registered  and  noted  in  folio  and  book,  respectively. 

"The  General  in  Chief,  N.  Juneno  Collante. 

"Adjutant  and  Secretary,  A.  Solanom." 

Believing  this  commission  to  be  irregular,  and  to  show  no  lawful  au- 
thority to  cruise  as  a  man-of-war  on  the  high  seas.  Commander  Clarke 
reported  her  under  seizure,  in  accordance  with  the  naval  regulations, 
to  Admiral  Jouett,  commanding  the  North  Atlantic  squadron,  then 
cruising  in  the  Central  American  waters,  and  the  admiral  directed  the 
vessel  to  be  taken  to  New  York  for  adjudication  as  prize.  The  vessel 
was  at  first  supposed  to  belong  to  citizens  of  the  United  States.  The 
proofs  showed  that  she  had  been  sold  'to,  and  legally  belonged  to,  Co- 
lente,  one  of  the  chief  mihtary  leaders  of  the  insurgents  at  Barran- 
quilla. None  of  her  officers  or  crew  were  citizens  of  the  United  States. 
She  was  engaged  upon  a  hostile  expedition  against  Cartagena,  and  de- 
signed to  assist  in  the  blockade  and  siege  of  that  port  by  the  rebels 
against  the  established  government  of  the  United  States  of  Colombia. 
She  had  left  Sabanilla  on  April  20tli,  bound  for  Baru,  near  Cartagena, 
where  she  expected  the  soldiers  aboard  to  disembark.  She  was  under 
the  orders  of  the  colonel  of  the  troops,  whose  instructions  were  to  shoot 
the  captain  if  disobedient  to  his  orders.  Further  instructions  were  to 
fight  any  Colombian  vessel  not  showing  the  white  flag  with  a  red  cross. 

Sabanilla,  and  a  few  other  adjacent  sea-ports,  and  the  province  of 
Barranquilla,  including  the  city  of  Barranquilla,  had  been  for  some 
months  previous,  and  still  were,  under  the  control  of  the  insurgents. 
The  proofs  did  not  show  that  any  other  depredations  or  hostilities 
were  intended  by  the  vessel  than  such  as  might  be  incident  to  the 
struggle  between  the  insurgents  and  the  government  of  Colombia,  and 
to  the  so-called  blockade  and  siege  of  Cartagena. 

As  respects  any  recognition  of  the  insurgents  by  foreign  powers,  it 
did  not  appear  in  evidence  that  up  to  the  time  of  the  seizure  of  the 
vessel,  on  April  24,  1885,  a  state  of  war  had  been  recognized  as  exist- 
ing, or  that  the  insurgents  had  ever  been  recognized  as  a  de  facto  gov- 
ernment, or  as  having  belligerent  rights,  either  by  the  Colombian  gov- 
ernment, or  by  our  own  government,  or  by  any  other  nation.  The 
claimants  introduced  in  evidence  a  diplomatic  note  from  our  Secre- 
tary of  State  to  the  Colombian  minister,  dated  April  24,  1885,  which, 
it  was  contended,  amounted  to  a  recognition  by  implication  of  a  state 
of  war.  The  government  claimed  the  forfeiture  of  the  ship  as  piratical, 
under  the  law  of  nations,  because  she  was  not  sailing  under  the  author- 
ity of  any  acknowledged  power.  The  claimants  contended  that,  being 
SooTT  Int.Law — 35 


546  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

actually  belligerent,  she  was  in  no  event  piratical  by  the  law  of  nations ; 
but  if  so,  that  the  subsequent  recognition  of  belligerency  by  our  gov- 
ernment by  implication  entitles  her  to  a  release. 

Elihu  Root,  U.  S.  Atty.,  and  J.  P.  Clark,  Asst.  Atty.,  for  the  United 
States. 

Frank  F.  Vanderveer,  for  claimants. 

Brown,  J.^  *  *  *  g_  That  recognition  by  at  least  some  estab- 
lished government  of  a  "state  of  war,"  or  of  the  belligerent  rights  of 
insurgents,  is  necessary  to  prevent  their  cruisers  from  being  held  le- 
gally piratical  by  the  courts  of  other  nations  injuriously  affected,  is  ei- 
ther directly  affirmed,  or  necessarily  implied  from  many  adjudged  cases  ; 
and  I  have  found  no  adjudication  in  which  a  contrary  view  is  even 
intimated.     *     *     * 

This  great  weight  of  authority,  drawn  from  every  source  that  au- 
thoritatively makes  up  the  law  of  nations,  seems  to  me  fully  to  war- 
rant the  conclusion  that  the  public  vessels  of  war  of  all  nations,  for 
the  preservation  of  the  peace  and  order  of  the  seas,  and  the  security 
of  their  own  commerce,  have  the  right  to  seize  as  piratical  all  vessels 
carrying  on,  or  threatening  to  carry  on,  unlawful  private  warfare  to 
their  injury ;  and  that  privateers,  or  vessels  of  war,  sent  out  to  block- 
ade ports,  under  the  commissions  of  insurgents,  unrecognized  by  the 
government  of  any  sovereign  power,  are  of  that  character,  and  derive 
no  protection  from  such  void  commissions. 

It  thus  appears  that  the  rules  laid  down  and  implied  in  the  deci- 
sions of  our  Supreme  Court  in  the  cases  of  Rose  v.  Himely  [4  Cranch, 
241,  2  L.  Ed.  608],  and  U.  S.  v.  Palmer,  [3  Wheat.  610,  4  L.  Ed.  471], 
nearly  70  years  ago,  have  been  since  almost  universally  followed.  The 
practical  responsibility  of  determining  whether  insurgent  vessels  of 
war  shall  be  treated  as  lawful  belligerents,  or  as  piratical,  rests  where 
the  supreme  court  then  in  effect  decided  that  it  ought  to  rest,  viz.  with 
the  political  and  executive  departments  of  the  government.  These  de- 
partments have  it  in  their  power,  at  any  moment,  through  the  granting 
or  withholding  of  recognition  of  belligerency,  and  through  the  extent  of 
such  recognition  as  they  may  choose  to  accord,  virtually  to  determine 
how  such  cruisers  shall  be  treated  by  the  courts.  Even  after  judgment 
and  sentence  the  prisoners  may,  like  Smith  and  his  associates,  convicted 
before  Mr.  Justice  Grier,  be  treated,  and  exchanged,  as  prisoners  of 
war.  And  it  is  with  those  departments,  exclusively,  that  the  discretion 
ought  to  rest  to  determine  when  and  how  its  technical  rights  against 
rebel  cruisers  shall  be  enforced.  Its  naval  regulations  will  be  framed 
accordingly;  and  any  seizures  made  under  such  regulations  may  be 
enforced,  or  at  any  moment  remitted,  at  the  pleasure  of  those  depart- 
ments. 

6  Parts  of  the  opinion  are  omitted. 

Scott  Int.Law 


Ch.  2)  PARTIES    TO   A    WAR  547 

Where  insurgents  conduct  an  armed  strife  for  political  ends,  and 
avoid  any  infringement  or  menace  of  the  rights  of  foreign  nations  on 
the  high  seas,  the  modern  practice  is,  in  the  absence  of  treaty  stipula- 
tions or  other  special  ties,  to  take  no  notice  of  the  contest.  One  of  the 
earliest  applications  of  this  rule  that  I  have  met  is  in  the  answer  of  the 
states-general  to  Sir  Joseph  York's  demand  in  1779  for  the  surrender  of 
Paul  Jones'  prizes  as  piratically  captured,  in  which  their  Mightinesses 
say  that  "they  had  for  a  century  past  strictly  observed  the  maxim  that 
they  will  in  no  respect  presume  to  judge  of  the  legality  or  illegality  of 
the  actions  of  those  who,  upon  the  open  sea,  have  taken  any  vessels 
that  do  not  belong  to  this  country."  On  this  point  Prof.  Lawrence, 
in  his  recent  Hand-Book  of  Int.  Law  (London,  1884),  says : 

"When  a  community,  not  being  a  state  in  the  eye  of  international 
law,  resorts  to  hostilities,  it  may,  in  respect  of  war,  be  endowed  with 
the  rights  and  subjected  to  the  obligations  of  a  state  if  other  powers 
accord  it  what  is  called  recognition  of  belligerency.  Neutral  powers 
should  not  do  this.  *  *  *  (4)  Unless  it  affect  by  the  struggle  the 
interests  of  the  recognizing  state.  If  the  struggle  is  maritime,  recogni- 
tion is  almost  a  necessity.  The  controversy  of  1861  illustrates  the 
whole  question." 

The  practice  is  stated  by  Hall  as  follows :  "When,  however,  pirati- 
cal acts  have  a  political  object,  and  are  directed  solely  against  a  par- 
ticular state,  it  is  not  the  practice  for  states  other  than  that  attacked 
to  seize,  and  still  less  to  punish,  the  persons  committing  them.  It  would 
be  otherwise,  so  far  as  seizure  is  concerned,  with  respect  to  vessels 
manned  by  persons  acting  with  a  political  object,  if  the  crew,  in  the 
course  of  carrying  out  their  object,  committed  acts  of  violence  against 
ships  of  other  states  than  that  against  which  their  political  operation 
was  aimed;  and  the  mode  in  which  the  crew  were  dealt  with  would 
probably  depend  on  the  circumstances  of  the  case."  Int.  Law,  §  81,  p. 
223. 

Whether  a  foreign  nation  shall  exercise  its  rights  only  when  its  own 
interests  are  immediately  threatened,  or  under  special  provocations  only 
after  injuries  inflicted  by  the  insurgents,  as  in  this  case,  at  Colon,  is 
a  question  purely  for  the  executive  department.  But  when  a  seizure  has 
been  made  by  the  navy  department,  under  the  regulations,  and  the  case 
is  prosecuted  before  the  court  by  the  government  itself,  claiming  sum- 
mum  jus — its  extreme  rights — the  court  is  bound  to  apply  to  the  case 
the  strict  technical  rules  of  international  law.  The  right  here  asserted 
may  be  rarely  enforced ;  the  very  knowledge  that  the  right  exists  tends, 
eft'ectually,  in  most  cases,  to  prevent  any  violation  of  it,  or  at  least 
any  actual  interference  by  insurgents  with  the  rights  of  other  natioiis. 
But  if  the'  right  itself  were  denied,  the  commerce  of  all  commercial  na- 
tions would  be  at  the  mercy  of  every  petty  contest  carried  on  by  irre- 
sponsible insurgents  and  marauders  under  the  name  of  war. 


^ 


548  RIGHTS  AND  DUTIES  OF  NATIONS   IN  TIME  OF  WAR         (Part  3 

In  the  absence  of  any  recognition  of  these  insurgents  as  belligerents, 
I  therefore  hold  the  Ambrose  Light  to  have  been  lawfully  seized,  as 
bound  upon  an  expedition  technically  piratical.     *     ♦     *  « 


THE  THREE  FRIENDS.' 

(Supreme  Court  of  the  United  States.  1897.    166  U.  S.  1,  17  Sup.  Ct.  495, 

41   L.   Ed.  897.) 

See  post,  p.  830,  for  a  report  of  the  case. 

8  Notwithstanding  the  opinion  in  the  principal  ease,  it  is  to-day  recognized 
in  practice  as  well  as  in  theory,  that  a  vessel  belonging  to  insurgents  who 
have  not  yet  been  recognized,  will  not  be  treated  as  a  pirate  engaged  in  a 
piratical  enterprise,  if  it  limits  its  actions  to  the  parent  state. 

While  it  is  unnecessary  to  cite  authority  for  this  statement,  attention  is 
Invited  to  2  Moore's  Digest  of  International  Law  (1906)  1098  et  seq.,  and  L. 
Oppenheim,  1  International  Law  (2d  Ed.,  1912)  342. 

7  As  this  case  deals  with  the  question  of  neutrality,  it  is  printed  in  Part 
III,  chapter  XV,  Belligerent  Use  of  Neutral  Territory.  The  portion  of  the 
opinion  to  which  reference  is  made  for  present  purposes  deals  with  the  dis- 
tinction between  belligerency  and  insurgency,  post,  p.  834. 


Ch.  3)  ENEMY   PROPERTY  549 


CHAPTER  III 

ENEMY  PROPERTY  IN  TERRITORY  OF  OTHER 
BELLIGERENT  ^ 


Ex  parte  BOUSSMAKER. 
(High  Court  of  Chancery,  ISOe.     13  Yes.  Jr.  71.) 

The  object  of  this  petition  was  to  be  admitted  to  prove  a  debt  un- 
der a  commission  of  bankruptcy,  which  the  commissioners  refused  to 
admit,  upon  the  objection,  that  the  creditors  applying  to  prove  were 
ahen  enemies. 

Mr.  Perceval,  in  support  of  the  petition.  This  proof  ought  to  be 
admitted  at  least.  It  vvill  be  another  consideration,  whether  the  peti- 
tioners shall  receive  dividends.  But  clearly  the  other  creditors  ought 
not  to  be  permitted  to  take  the  dividends  accruing  upon  this  debt ;  for 
the  crown  will  be  entitled.  There  is  no  law,  now  subsisting,  that  a 
debtor  to  an  alien  enemy  shall  not  pay  the  debt :  the  act  of  Parliament 
to  prevent  that  in  the  last  war  having  expired ;  and  not  being  renewed. 
Upon  the  common  law  undoubtedly  the  objection  might  be  made  by 
the  debtor  by  plea.  The  demand  would  survive  at  the  end  of  the  war; 
the  suit  only  being  suspended.  The  effect  of  that  suspension  will  be 
obtained,  admitting  the  proof,  either  by  not  permitting  them  to  take  a 
dividend,  or  by  having  it  paid  into  Court.  Here  is  no  allegation,  that 
these  persons  were  alien  enemies  at  the  date  of  the  contract. 

The  Lord  ChancdIvLOR  [Erskine]  .  If  this  had  been  a  debt,  aris- 
ing from  a  contract  with  an  alien  enemy,  it  could  not  possibly  stand ; 
for  the  contract  would  be  void.'^  But,  if  the  two  nations  were  at  peace 
at  the  date  of  the  contract,  from  the  time  of  war  taking  place  the  cred- 
itor could  not  sue;   but,  the  contract  being  originally  good,  upon  the 

1  For  sequestration  of  property  during  the  World  War  of  1914-1918,  see 
.Tames  W.  Garner's  article  entitled  "Treatment  of  Enemy  Aliens,"  12  American 
.Tournnl  of  International  Law  (1918)  744,  and  his  International  Law  and  the 
World  War,  vol.  1,  p.  86  et  seq.  (1920) ;  "Germany's  Treatment  of  American 
I'roperty,"  Report  of  the  Alien  Property  Custodian  for  1919,  p.  268 ;  and 
"American  Proi)erty  in  Germany,"  The  Nation,  February  16,  1921,  p.  272. 

See,  also,  Ernest  J.  Schuster,  "The  Peace  Treaty  [of  Versailles!  in  Its  Ef- 
fects on  Private  Property,"  British  Year  Book  of  International  Law,  1929-21, 
p.  1G7;  J.  W.  Scohell  Armstrong,  War  and  Treaty  Legislation  Affecting  Brit- 
ish Property  in  Germany  and  Austria  and  Enemy  Property  in  the  United 
Kingdom  (1921),  and  I^aul  F.  Siuionson,  Private  Property  and  Rights  in 
Enemy  Countries,  under  the  Peace  Treaties  with  Germany,  Austria,  Hungary, 
Bulgaria,  and  Turkey  (1921). 

«  Evans  v.  Richardson,  3  Mer.  469  (1817);  Ex  parte  Schraaling,  Buck,  93 
(1817)  ;  Potts  V.  Bell,  S  Term  R.  548  (18(X)) ;  Willison  v.  Patteson,  7  Taunt. 
439  (1817),  in  which  case  this  petition  is  supposed  to  have  been  heard  by 
Lord  Eldon. 


550  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

return  of  peace  the  right  would  survive.  It  would  be  contrary  to  jus- 
tice therefore  to  confiscate  this  dividend.  Though  the  right  to  recover 
is  suspended,  that  is  no  reason,  why  the  fund  should  be  divided  among 
the  other  creditors.  The  point  is  of  great  moment,  from  the  analogy 
to  the  case  of  an  action ;  and  It  is  true,  a  court  of  law  would  not  take 
notice  of  the  objection  without  a  plea.  It  must  appear  upon  the  rec- 
ord. Has  the  case  of  a  contract  originally  good,  and  the  right  suspend- 
ed by  war,  never  before  occurred  ?  Yet  I  do  not  know  an  instance  of 
an  application  by  an  alien  enemy  to  the  court  to  keep  the  fund,  until 
his  right  to  sue  should  survive.  The  policy,  avoiding  contracts  with 
an  enemy,  is  sound  and  wise:  but  where  the  contract  was  originally 
good,  and  the  remedy  is  only  suspended,  the  proposition,  that  therefore 
the  fund  should  be  lost,  is  very  different. 

Let  a  claim  be  entered ;  and  the  dividend  be  reserved.* 


WOLFF  et  al.  v.  OXHOLM. 

(Court  of  King's  Bench,  1S17.     6  Maule  &  S.  92.) 

For  the  material  portion  of  Wolff  v.  Oxholm,  see  In  re  Ferdinand, 
following.  ^ 


In  re  FERDINAND,  Ex-Tsar  of  Bulgaria. 

(Court  of  Chancery,  1920.     [1921]  L.  R.  1  Ch.  D.  107.) 

Lord  Sterndale,  M.  R.  In  this  case  the  ex-Tsar  of  Bulgaria,  who 
has  obtained  special  leave  for  the  purpose,  appeals  against  two  orders 
made  on  July  30,  1919,  and  August  13,  1919,  by  Eve,  J.,  and  P.  O. 
Lawrence,  J.,  respectively.  By  each  order  certain  stocks  and  securi- 
ties which  formerly  belonged  to  the  appellant  were  vested  in  the  So- 
licitor to  the  Treasury  as  trustee  for  H.  M.  King  George  V.  The 
appellant  was  by  birth  of  German  nationality,  but  according  to  his  affi- 
davit in  1887  he  had  become  of  Austro-Hungarian  nationality  by  rea- 
son of  holding  a  commission  in  the  army  of  that  country.  In  that 
year  he  was  elected  Prince  of  Bulgaria  and  in  1908  he  assumed  the 
title  of  Tsar.  On  being  elected  Prince  of  Bulgaria  he  became  of  Bul- 
garian nationality.  War  broke  out  between  Bulgaria  and  this  country 
in  October,  1915,  and  the  appellant  thereupon  became  an  enemy  of  His 
Majesty.  At  that  time  the  stocks  and  securities  in  question  were  held 
by  Messrs.  Coutts  &  Co.  on  behalf  of  the  appellant,  some  of  them  be- 
ing registered  in  his  own  name  and  some  in  the  names  of  partners 

3  See  the  distinction  upon  the  case  of  an  insurance  of  foreign  property  in 
England,  followed  by  a  war  with  the  country  of  the  assured;  a  loss,  in- 
curred by  the  hostile  act  of  England,  cannot  be  recovered  even  upon  the 
return  of  peace.  Ex  parte  Lee,  13  Yes.  Jr.,  64  (1S06);  Brandon  v.  Curling, 
4  East,  410  (1803). 


Ch.  3)  ENEMY   PROPERTY  551 

of  Coutts  &  Co.  who  held  them  as  trustees  for  the  appellant.  After  the 
outbreak  of  war  Messrs.  Coutts  &  Co.,  acting  in  accordance  with  the 
provisions  of  the  Trading  with  the  Enemy  Amendment  Act  of  1914, 
gave  notice  to  the  custodian  appointed  under  that  act  that  they  so  held 
the  said  stocks  and  securities  and  also  some  bearer  securities  not  the 
subject  of  this  appeal.  They  were  required  to  deposit  and  did  deposit 
them  with  the  Bank  of  England  to  the  order  of  the  Solicitor  to  the 
Treasury,  and  the  partners  in  whose  names  some  of  them  were  regis- 
tered signed  declarations  that  they  held  them  also  to  the  order  of  the 
Treasury.  No  further  step  was  taken  in  the  matter  until  after  the  con- 
clusion of  an  armistice  with  Bulgaria  and  the  abdication  of  the  appel- 
lant, which  took  place  on  September  29,  and  October  3,  1918,  respec- 
tively. After  his  abdication  the  appellant  went  to  Germany  and  was 
resident  there  at  the  conclusion  of  the  armistice  with  Germany  on 
November  11,  1918. 

On  June  27,  1919,  a  commission  was  issued  under  the  Great  Seal  by 
virtue  of  which  on  July  10,  1919,  an  inquisition  was  held  by  which  it 
was  found  that  the  appellant  was  on  the  outbreak  of  war  beneficially 
entitled  to  the  stocks  and  securities  and  that  the  same  became  and  re- 
mained forfeited  to  His  Alajesty.  The  orders  in  question  were  then 
made  on  the  dates  before  mentioned.  On  November  19,  1919,  an  or- 
der was  made  by  the  Board  of  Trade  under  section  4  of  the  Trading 
with  the  Enemy  Amendment  Act,  1916,  vesting  the  stocks  and  se- 
curities in  the  custodian,  such  order  only  to  have  effect  in  case  of  its 
being  held  that  no  forfeiture  of  them  to  His  Majesty  had  taken  place. 

The  points  argued  on  the  appeal  were :  (1)  Was  it  ever  the  com- 
mon law  of  England  that  the  crown  had  the  right  to  seize  and  claim 
as  forfeited  to  it  private  property  including  choses  in  action  found  in 
this  kingdom  belonging  to  subjects  of  an  enemy  state?  (2)  If  so,  had 
that  right  ceased  to  exist  before  the  passing  of  the  Trading  with  the 
Enemy  Acts?  (3)  If  not,  has  it  been  abandoned  or  ceased  to  exist 
by  reason  of  the  legislation  contained  in  the  various  acts  relating  to 
trading  with  the  enemy,  so  far  as  such  legislation  deals  with  the  dis- 
position of  enemy  property  during  the  war?  (4)  Had  the  crown  lost 
the  right  to  claim  the  forfeiture  of  such  property,  because  no  inquisi- 
tion had  been  held  before  the  conclusion  of  the  armistice  v/ith  Bul- 
garia? These  stocks  and  securities  were  choses  in  action  belonging  to 
the  appellant,  and  I  do  not  think  any  distinction  can  be  drawn  between 
legal  and  equitable  interests  in  such  choses  in  action.  The  stocks  and 
securities  were  the  private  property  of  the  appellant  and  were  in  no 
way  part  of  the  national  revenues  or  property  of  the  state  of  Bulgaria. 
They  would  no  doubt,  if  the  appellant  could  have  obtained  possession 
of  them,  have  been  available  for  use  by  him  in  the  promotion  of  the 
war  against  this  country,  but  probably  he  had  no  intention  of  so  using 
them,  and  I  think  that  from  the  legal  point  of  view  they  must  be 
considered  in  the  same  light  as  the  private  property  of  any  other  na- 


•**( 


552  RIGHTS   AND   DUTIES   OP   NATIONS   IN   TIME   OF   WAR         (Part  3 

tional  of  the  enemy  state.  The  fact  that  they  were  the  property  of  the 
enemy  sovereign  is  only  important  from  a  moral  or  political  point  of 
view  in  influencing  the  crown  to  enforce  the  exercise  of  a  right  which 
it  has  not  exercised  for  a  long  time,  and  probably  would  not  have  exer- 
cised against  the  property  of  a  private  person,  I  do  not  therefore" 
think  it  necessary  to  discuss  the  question  argued  before  us  as  to  the 
position  of  the  appellant  as  a  sovereign  under  the  constitution  of  Bul- 
garia, or  the  extent  to  which  under  that  constitution  he  may  be  con- 
sidered responsible  for  the  war  between  this  country  and  Bulgaria, 

As  to  the  first  two  questions  I  have  no  doubt  that  they  should  be 
answered  against  the  appellant,  I  think  the  right  to  seize  private  en- 
emy property  existed  and  that  nothing  had  occurred  up  to  the  begin- 
ning of  the  war  with  Bulgaria  to  deprive  the  crown  of  that  right  un- 
less that  were  the  effect  of  the  Trading  with  the  Enemy  Acts.  The 
right  is  stated  by  Hale,  C.  J,,  in  his  Pleas  of  the  Crown  to  have  existed 
originally,  and  although  it  was  argued  with  some  force  that  the  cases 
in  the  Year  Books  to  which  reference  is  there  made  do  not  fully  bear 
out  the  statement  and  have  been  questioned  in  Rolle's  Abridgment,  195, 
it  has  been  recognized  and  repeated  as  a  correct  statement  of  the  law 
many  times  since.  It  is  so  stated  also  by  the  writers  on  international 
law,  in  Wheaton  (8th  Ed.,  by  Dana)  §§  304-308,  and  notes  157  and  171 ; 
Phillimore,  Part  III,  132 ;  Kent,  Part  I,  65 ;  Wheaton  (5th  Ed.,  by 
Phillipson)  p.  419 ;  and  Hall  (7th  Ed.)  pp.  460-464,  and  the  notes  to 
those  pages.  In  Westlake's  International  Law,  Part  II,  47,  the  author 
after  adducing  strong  arguments  to  show  that  such  a  right  should  not 
continue  says:  "The  time  is  now  fully  ripe  when  a  British  Court 
should  not  lag  behind  the  position  taken  by  Governments,  but  should 
boldly  follow  Lord  Ellenborough."  The  allusion  to  Lord  EHenborough 
refers  to  the  case  of  Wolff  v.  Oxholm,  6  M.  &  S.  92,  with  which  I  shall 
deal  later.  I  have  quoted  Westlake's  words,  because  they  show  that 
although  the  author  strongly  condemned  the  practice  of  seizing  pri- 
vate property  he  did  not  consider  that  the  law  as  then  existing  pro- 
hibited it,  and  earlier  in  the  same  passage  he  had  referred  to  the  deci- 
sion of  Dr.  Lushington  in  The  Johanna  Emilie,  Spinks'  Prize  Cas.  14, 
where  the  existence  of  the  right  was  clearly  stated.  It  was  also  so 
held  in  America  in  Brown  v.  United  States  (1814)  8  Cranch,  110, 
though  in  the  circumstances  of  that  case  the  court  decided  that  there 
was  no  right  to  seize  the  goods  in  question.  The  only  statement  to 
the  contrary  in  a  modern  writer  that  I  have  found  is  in  Oppenheim, 
vol.  II,  §  102,  where  he  says  that  the  right  to  seize  private  property 
is  obsolete,  and  that  there  is  a  customary  international  law  prohibit- 
ing the  confiscation  of  private  property  and  the  annulment  of  enemy 
debts  on  the  territory  of  a  belligerent.  If  this  only  refers,  as  I  think 
it  does,  to  a  general  confiscation  and  annulment  and  not  to  a  right  in 
the  Crown  to  seize  in  particular  instances  it  is  not,  whether  correct 
or  not,  opposed  to  what  I  think  is  the  law.     If  it  be  intended  to  ex- 


Ch.  3)  ENEMY  PROPERTY  553 

tend  to  the  right  to  seize  I  think  it  is  opposed  to  other  authorities  and 
incorrect.  , 

Great  reHance  was  however  placed  by  the  counsel  for  the  appellant 
on  the  case  of  Wolff  v.  Oxholm,  6  M^.  &  S.  92,  to  which  reference 
has  already  been  made.  In  that  case  a  Danish  subject  ordinarily  resi- 
dent in  Denmark  was  sued  for  a  debt  due  to  the  plaintiffs  who  were 
carrying  on  business  in  England.  His  defence  was  that  he  had  during 
the  war  between  England  and  Denmark  paid  the  debt  to  commis- 
sioners appointed  by  the  Danish  government,  by  whose  order  all  debts 
due  to  English  subjects  by  Danes  were  sequestrated  and  made  payable 
to  the  commissioners.  Lord  Ellenborough,  delivering  the  judgment  of 
the  Court  of  King's  Bench  in  1817,  held  the  defence  bad  and  the  ordi- 
nance to  be  contrary  to  the  law  of  nations.  The  actual  decision  re- 
lated to  a  general  confiscation  of  mercantile  debts,  and  Lord  Ellen- 
borough  referred  in  his  judgment  to  the  protection  given  to  merchants 
by  Magna  Charta,  but  he  did  use  expressions  which  show  that  he 
considered  that  there  was  no  right  to  seize  any  property  of  an  incor- 
poreal nature.  This  judgment  has  been  the  subject  of  criticism  in 
Wheaton  (8th  Ed.,  by  Dana)  §  308,  and  is  in  my  opinion,  if  it  go  to 
the  length  contended  by  the  appellant's  counsel,  opposed  to  the  deci- 
sion I  have  already  mentioned  in  The  Johanna  Emilie,  Spinks'  Prize 
Cas.  14,  and  also  to  Land  v.  Lord  North,  4  Doug.  266-274,  where 
Lord  Mansfield  speaks  of  that  summum  jus  which  undoubtedly  gives 
all  enemies'  property  coming  into  this  country  to  the  king.  In  Furtado 
v.  Rogers,  3  Bos.  &  P.  191,  also  the  right  to  seize  property  and  debts 
seems  to  have  been  recognized  by  Lord  Alvanley,  though  he  does  not 
expressly  decide  the  question.  It  seems  also  clear  that  Lord  Ellen- 
borough  was  in  error  as  to  some  of  the  historical  facts  upon  which 
he  relies  in  his  judgment.  It  is  pointed  out  in  Hall's  International 
Law,  p.  462,  note  1,  that  he  was  incorrect  in  stating  that  the  ordinance 
in  question  "stood  single  and  alone  unsupported  by  any  precedent  and 
that  no  instance  of  such  confiscation  except  the  ordinance  in  question 
is  to  be  found  for  more  than  a  century,"  and  instances  are  given  in 
that  note  to  the  contrary.  There  were  also  produced  before  us  in  the 
argument  instances  of  Exchequer  special  commissions  in  1693,  1705, 
1797,  1806,  1807  and  1812  under  which  inquisitions  were  found  for- 
feiting to  the  crown  private  enemy  property  including  choses  in  ac- 
tion, and  in  one  case  at  least  government  securities  which  would  not 
now  be  seized.  In  one  case,  namely,  that  of  the  inquisition  held  in 
1697,  the  matter  came  before  the  court  in  Attorney  General  v.  Weeden, 
Parker,  267,  where  it  was  held  that  the  inquisition  was  invalid  because 
it  was  not  held  until  after  the  conclusion  of  peace,  but  this  decision 
was  given :  "upon  long  debate  it  was  resolved  first  that  choses  m  ac- 
tion which  belonged  to  an  alien  enemy  were  forfeited  to  the  crown." 
Lord  Ellenborough  seems  to  have  been  unaware  of  these  inquisitions. 
I  ought  perhaps  to  mention  that  other  inquisitions  forfeiting  property 
in  1854  were  produced,  but  I  attach  no  importance  to  them,  because 


554  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF    WAR         (Part  3 

they  related  to  certain  steam  vessels  under  construction  for  the  Em- 
peror of  all  the  Russians  during  the  Crimean  War.  These  steam  ves- 
sels may  well  have  been  considered  enemy  government  property  which 
might  be  used  in  the  war.  Taking  these  matters  into  consideration  I 
do  not  think  Wolff  v.  Oxholm,  6  M.  &  S.  92,  displaces  the  other 
authorities  to  which  I  have  referred.     *     *     * 

The  third  question  raises  very  different  considerations.  I  doubt 
whether  such  a  right  as  in  my  opinion  existed  could  be  lost  by  mere 
disuse  unless  such  disuse  took  place  in  circumstances  which  would  raise 
the  inference  of  an  international  compact,  but  I  think  it  is  quite  clear 
that  the  crown  can  abandon  and  give  up  a  right  if  it  choose  to  do  so. 
The  question  here  is  whether  by  the  various  Acts  called  Trading  with 
the  Enemy  Acts  it  has  so  abandoned  the  right.  *  *  *  It  is  fairly 
clear,  I  think,  that  the  powers  conferred  by  these  acts  are  in  important 
respects  inconsistent  with  the  exercise  of  the  common  law  right  of 
forfeiture.  If  an  order  had  been  previously  made  by  the  Board  of 
Trade  vesting  the  property  in  the  custodian  I  do  not  see  how  the 
right  of  forfeiture  could  be  exercised  or  an  inquisition  held  which 
could  find  that  the  property  was  enemy  property  forfeited  to  the  crown 
when  it  was  already  vested  in  the  custodian  to  be  disposed  of  accord- 
ing to  Order  in  Council.  The  powers  conferred  by  the  act  no  doubt 
afforded  a  readier  and  more  convenient  method  of  dealing  with  enemy 
property  than  the  somewhat  cumbrous  method  of  procedure  by  inquisi- 
tion, and  were  therefore  useful  to  the  crown,  but  I  do  not  think  that 
is  the  only  effect  of  the  act.  It  seems  to  me  that  a  power  to  vest  prop- 
erty in  a  custodian  to  be  dealt  with  at  the  end  of  the  war  as  His  Maj- 
esty should  by  Order  in  Council  direct  is  inconsistent  with  an  inten- 
tion of  preserving  a  power  to  insist  on  an  absolute  forfeiture  at  com- 
mon law.  The  one  contemplates  a  discretion  as  to  the  disposal  of  the 
property  which  would  no  doubt  be  affected  by  the  provisions  of  the 
treaty  of  peace,  while  the  other  works  an  absolute  forfeiture  follow- 
ing the  exercise  of  a  right  still  in  existence  but  unexercised  in  late 
years.  The  right  to  forfeiture  and  the  Trading  with  the  Enemy  legis- 
lation are  concerned  with  all  enemy  property,  and  it  must  be  remem- 
bered that  the  right  to  forfeit,  although  its  existence  is  recognized,  has 
been  criticised  and  its  exercise  deprecated  by  practically  all  writers  on 
international  law  in  modern  times.  In  these  circumstances  I  think  that 
if  the  crown  in  taking  powers  in  many  respects  inconsistent  with  that 
right  meant  also  to  preserve  it  the  intention  to  do  so  should  be  clearly 
shown,  and  in  my  opinion  that  is  not  the  case.     *     *     * 

I  think,  therefore,  that  on  this  ground  the  appeal  should  be  allowed, 
and  the  orders  appealed  from  discharged.     *     *     *  5 

5  The  statement  of  facts,  parts  of  tlie  opinion  of  Lord  Sterndale,  and  the 
concurring  opinions  of  Lords  Justices  Warrington  and  Younger  are  omitted. 


Ch.  3)  ENEMY   PROPERTY  555 

BROWN  V.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1814.     8  Cranch,  110, 
3  L.  Ed.  504.) 

This  was  an  appeal  from  the  sentence  of  the  Circuit  Court  of  Mas- 
sachusetts, which  condemned  550  tons  of  pine  timber,  claimed  by  Ar- 
mitz  Brown,  the  appellant.     *     *     * 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court,  as  follows: 

The  material  facts  in  this  case  are  these: 

The  Emulous  owned  by  John  Delano  and  others,  citizens  of  the 
United  States,  was  chartered  to  a  company  carrying  on  trade  in  Great 
Britain,  one  of  whom  was  an  American  citizen,  for  the  purpose  of  car- 
rying a  cargo  from  Savannah  to  Plymouth.  After  the  cargo  was  put 
on  board,  the  vessel  was  stopped  in  port  by  the  embargo  of  the  4th 
of  April,  1812.  On  the  25th  of  the  same  month,  it  was  agreed  between 
the  master  of  the  ship  and  the  agent  of  the  shippers,  that  she  should 
proceed  with  her  cargo  to  New  Bedford,  where  her  owners  resided, 
and  remain  there  without  prejudice  to  the  charter  party.  In  pursu- 
ance of  this  agreement,  the  Emulous  proceeded  to  New  Bedford,  where 
she  continued  until  after  the  declaration  of  war.  In  October  or  No- 
vember, the  ship  was  unloaded  and  the  cargo,  except  tiie  pine  timber, 
was  landed.  The  pine  timber  was  floated  up  a  salt  water  creek,  where, 
at  low  tide,  the  ends  of  the  timber  rested  on  the  mud,  where  it  was 
secured  from  floating  out  with  the  tide,  by  impediments  fastened  in 
the  entrance  of  the  creek.  On  the  7th  of  November,  1812,  the  cargo 
was  sold  by  the  agent  of  the  owners,  who  is  an  American  citizen,  to 
the  claimant,  who  is  also  an  American  citizen.  On  the  19th  of  April, 
a  libel  was  filed  by  the  attorney  for  the  United  States,  in  the  district 
Court  of  Massachusetts,  against  the  said  cargo,  as  well  on  behalf  of 
the  United  States  of  America  as  for  and  in  behalf  of  John  Delano 
and  of  all  other  persons  concerned.  It  does  not  appear  that  this  sei- 
zure was  made  under  any  instructions  from  the  president  of  the 
United  States;  nor  is  there  any  evidence  of  its  having  his  sanction, 
unless  the  libels  being  filed  and  prosecuted  by  the  law  officer  who 
represents  the  government  must  imply  that  sanction. 

On  the  contrary,  it  is  admitted  that  the  seizure  was  made  by  an 
individual,  and  the  libel  filed  at  his  instance,  by  the  district  attorney 
who  acted  from  his  own  impressions  of  what  appertained  to  his  duty. 
The  property  was  claimed  by  Armitz  Brown  under  the  purchase  made 
in  the  preceding  November. 

The  District  Court  dismissed  the  libel.  The  Circuit  Court  reversed 
this  sentence,  and  condemned  the  pine  timber  as  enemy  property  for- 
feited to  the  United  States.  From  the  sentence  of  the  Circuit  Court, 
the  claimant  appealed  to  this  court. 


556  RIGHTS  AND  DUTIES  OF  NATIONS   IN  TIME  OF   WAR         (Part  3 

The  material  ques,tion  made  at  bar  is  this.  Can  the  pine  timber,  even 
admitting  the  property  not  to  be  changed  by  the  sale  in  November,  be 
condemned  as  prize  of  v^ar? 

The  cargo  of  the  Emulous  having  been  legally  acquired  and  put  on 
board  the  vessel,  having  been  detained  by  an  embargo  not  intended  to 
act  on  foreign  property,  the  vessel  having  sailed  before  the  war,  from 
Savannah,  under  a  stipulation  to  re-land  the  cargo  in  some  port  of  the 
United  States,  the  re-landing  having  been  made  with  respect  to  the 
residue  of  the  cargo,  and  the  pine  timber  having  been  floated  into  shal- 
low water,  where  it  was  secured  and  in  the  custody  of  the  owner  of 
the  ship,  an  American  citizen,  the  court  cannot  perceive  any  solid  dis- 
tinction, so  far  as  respects  confiscation,  between  this  property  and  other 
British  property  found  on  land  at  the  commencement  of  hostilities.  It 
will  therefore  be  considered  as  a  question  relating  to  such  property 
generally,  and  to  be  governed  by  the  same  rule. 

Respecting  the  power  of  government  no  doubt  is  entertained.  That 
war  gives  to  the  sovereign  full  right  to  take  the  persons  and  confiscate 
the  property  of  the  enemy  wherever  found,  is  conceded.  The  mitiga- 
tions of  this  rigid  rule,  which  the  humane  and  wise  policy  of  modern 
times  has  introduced  into  practice,  will  more  or  less  affect  the  exercise 
of  this  right,  but  cannot  impair  the  right  itself.  That  remains  un- 
diminished, and  when  the  sovereign  authority  shall  choose  to  bring  it 
into  operation,  the  judicial  department  must  give  effect  to  its  will. 
But  until  that  will  shall  be  expressed,  no  power  of  condemnation  can 
exist  in  the  cd^rt. 

The  questions  to  be  decided  by  the  court  are : 

1st.  May  enemy's  property,  found  on  land  at  the  commencement  of 
hostilities,  be  seized  and  condemned  as  a  necessary  consequence  of  the 
declaration  of  war? 

2d.  Is  there  any  legislative  act  which  authorizes  such  seizure  and 
condemnation  ? 

Since,  in  this  country,  from  the  structure  of  our  government,  pro- 
ceedings to  condemn  the  property  of  an  enemy  found  within  our  terri- 
tory at  the  declaration  of  war,  can  be  sustained  only  upon  the  prin- 
ciple that  they  are  instituted  in  execution  of  some  existing  law,  we 
are  led  to  ask — 

Is  the  declaration  of  war  such  a  law?  Does  that  declaration,  by  its 
own  operation,  so  vest  the  property  of  the  enemy  in  the  government,  as 
to  support  proceedings  for  its  seizure  and  confiscation,  or  does  it  vest 
only  a  right,  the  assertion  of  which  depends  on  the  will  of  the  sovereign 
power  ? 

The  universal  practice  of  forbearing  to  seize  and  confiscate  debts 
and  credits,  the  principle  universally  received,  that  the  right  to  them 
revives  on  the  restoration  of  peace,  would  seem  to  prove  that  war  is  not 


Ch.  3)  ENEMY   PROPERTY  557 

an  absolute  confiscation  of  this  property,  but  simply  confers  the  right 
of  confiscation. 

Between  debts  contracted  under  the  faith  of  laws,  and  property  ac- 
quired in  the  course  of  trade,  on  the  faith  of  the  same  laws,  reason 
draws  no  distinction;  and,  although,  in  practice,  vessels  with  their 
cargoes,  found  in  port  at  the  declaration  of  war,  may  have  been  seized, 
it  is  not  believed  that  modern  usage  would  sanction  the  seizure  of  the 
goods  of  an  enemy  on  land,  which  were  acquired  in  peace  in  the  course 
of  trade.  Such  a  proceeding  is  rare,  and  would  be  deemed  a  harsh 
exercise  of  the  rights  of  war.  But  although  the  practice  in  this  respect 
may  not  be  uniform,  that  circumstance  does  not  essentially  affect  the 
question.  The  enquiry  is,  whether  such  property  vests  in  the  sover- 
eign by  the  mere  declaration  of  war,  6r  remains  subject  to  a  right  of 
confiscation,  the  exercise  of  which  depends  on  the  national  will :  and 
the  rule  which  applies  to  one  case,  so  far  as  respects  the  operation  of 
a  declaration  of  war  on  the  thing  itself,  must  apply  to  all  others  over 
which  war  gives  an  equal  right.  The  right  of  the  sovereign  to  confiscate 
debts  being  precisely  the  same  with  the  right  to  confiscate  other  prop- 
erty found  in  the  country,  the  operation  of  a  declaration  of  war  on  debts 
arid  on  other  property  found  within  the  country  must  be  the  same. 
What  then  is  this  operation  ? 

Even  Bynkershoek,  who  maintains  the  broad  principle,  that  in  war 
every  thing  done  against  an  enemy  is  lawful ;  that  he  may  be  destroyed, 
though  unarmed  and  defenceless ;  that  fraud,  or  even  poison,  may  be 
employed  against  him;  that  a  most  unlimited  right  is  acquired  to  his 
person  and  property ;  admits  that  war  does  not  transfer  to  the  sover- 
eign a  debt  due  to  his  enemy ;  and,  therefore,  if  payment  of  such  debt 
be  not  exacted,  peace  revives  the  former  right  of  the  creditor;  "be- 
cause," he  says,  "the  occupation  which  is  had  by  war  consists  more 
in  fact  than  in  law."  He  adds  to  his  observations  on  this  sulpject,  "let 
it  not,  however,  be  supposed  that  it  is  only  true  of  actions,  that  they 
are  not  condemned  ipso  jure,  for  other  things  also  belonging  to  the 
enemy  may  be  concealed  and  escape  condemnation." 

Vattel  says,  that  "tlie  sovereign  can  neither  detain  the  persons  nor 
the  property  of  those  subjects  of  the  enemy  who  are  within  his  domin- 
ions at  the  time  of  the  declaration." 

It  is  true  that  this  rule  is,  in  terms,  applied  by  Vattel  to  the  property 
of  those  only  who  are  personally  within  the  territory  at  the  commence- 
ment of  hostilities;  but  it  applies  equally  to  things  in  action  and  to 
things  in  possession ;  and  if  war  did,  of  itself,  without  any  further 
exercise  of  the  sovereign  will,  vest  the  property  of  the  enemy  in  the 
sovereign,  his  presence  could  not  exempt  it  from  this  operation  of  war. 
Nor  can  a  reason  be  perceived  for  maintaining  that  the  public  faith 
is  more  entirely  pledged  for  the  security  of  property  trusted  in  the 
territory  of  the  nation  in  time  of  peace,  if  it  be  accompanied  by  its 
owner,  than  if  it  be  confided  to  the  care  of  others. 


558  RIGHTS  AND   DUTIES   OP   NATIONS   IN   TIME   OF  WAR         (Part  3 

Chitty,  after  stating  the  general  right  of  seizure,  says,  "But,  in  strict 
justice,  that  right  can  take  effect  only  on  those  possessions  of  a  bellig- 
erent which  have  come  to  the  hands  of  his  adversary  after  the  decla- 
ration of  hostilities." 

The  modern  rule  then  would  seem  to  be,  that  tangible  property  be- 
longing to  an  enemy  and  found  in  the  country  at  the  commencement 
of  war,  ought  not  to  be  immediately  confiscated ;  and  in  almost  every 
commercial  treaty  an  article  is  inserted  stipulating  for  the  right  to  with- 
draw such  property. 

This  rule  appears  to  be  totally  incompatible  with  the  idea  that  war 
does  of  itself  vest  the  property  in  the  belligerent  government.  It  may 
be  considered  as  the  opinion  of  all  who  have  written  on  the  jus  belli, 
that  war  gives  the  right  to  confiscate,  but  does  not  itself  confiscate  the 
property  of  the  enemy ;   and  their  rules  go  to  the  exercise  of  this  right. 

The  Constitution  of  the  United  States  was  framed  at  a  time  when 
this  rule,  introduced  by  commerce  in  favor  of  moderation  and  human- 
it}%  was  received  throughout  the  civilized  world.  In  expounding  that 
Constitution,  a  construction  ought  not  lightly  to  be  admitted  which 
would  give  to  a  declaration  of  war  an  effect  in  this  country  it  does  not 
possess  elsewhere,  and  which  would  fetter  that  exercise  of  entire  dis- 
cretion respecting  enemy  property  which  may  enable  the  government  to 
apply  to  the  enemy  the  rule  that  he  applies  to  us. 

If  we  look  to  the  Constitution  itself,  we  find  this  general  reasoning 
much  strengthened  by  the  words  of  that  instrument. 

That  the  declaration  of  war  has  only  the  effect  of  placing  the  two 
nations  in  a  state  of  hostility,  of  producing  a  state  of  war,  of  giving 
those  rights  which  war  confers ;  but  not  of  operating,  by  its  own  force, 
any  of  those  results,  such  as  a  transfer  of  property,  which  are  usu- 
ally produced  by  ulterior  measures  of  government,  is  fairly  deducible 
from  the  enumeration  of  powers  which  accompanies  that  of  declaring 
war.  "Congress  shall  have  power  *  *  *  ^q  declare  war,  grant  let- 
ters of  marque  and  reprisal,  and  makes  rules  concerning  captures  on 
land  and  water." 

It  would  be  restraining  this  clause  within  narrower  limits  than  the 
words  themselves  import,  to  say  that  the  power  to  make  rules  concern- 
ing captures  on  land  and  water,  is  to  be  confined  to  captures  which  are 
exterritorial.  If  it  extends  to  rules  respecting  enemy  property  found 
within  the  territory,  then  we  perceive  an  express  grant  to  Congress  of 
the  power  in  question  as  an  independent  substantive  power,  not  included 
in  that  of  declaring  war. 

The  acts  of  Congress  furnish  many  instances  of  an  opinion  that  the 
declaration  of  war  does  not,  of  itself,  authorize  proceedings  against 
the  persons  or  property  of  the  enemy  found,  at  the  time,  within  the  ter- 
ritory. 

War  gives  an  equal  right  over  persons  and  property :  and  if  its  dec- 
laration is  not  considered  as  prescribing  a  law  respecting  the  person 


Ch.  3)  ENEMY   PROPERTY  559 

9 

of  an  enemy  found  in  our  country,  neither  does  it  prescribe  a  law  for 
his  property.  The  act  concerning  alien  enemies,  which  confers  on  the 
president  very  great  discretionary  powers  respecting  their  persons,  af- 
fords a  strong  implication  that  he  did  not  possess  those  powers  by  vir- 
tue of  the  declaration  of  war. 

The  "act  for  the  safe  keeping  and  accommodation  of  prisoners  of 
war"'  is  of  the  same  character. 

The  act  prohibiting  trade  with  the  enemy    contains  this  clause: 

"And  be  it  further  enacted,  That  the  President  of  the  United  States 
be,  and  he  is  hereby  authorized  to  give,  at  any  time  within  six  months 
after  the  passage  of  this  act,  passports  for  the  safe  transportation  of 
any  ship  or  other  property  belonging  to  British  subjects,  and  which  is 
now  within  the  limits  of  the  United  States." 

The  phraseology  of  this  law  shows  that  the  property  of  a  British 
subject  was  not  considered  by  the  legislature  as  being  vested  in  the 
United  States  by  the  declaration  of  war ;  and  the  authority  which  the 
act  confers  on  the  President,  is  manifestly  considered  as  one  which  he 
did  not  previously  possess. 

The  proposition  that  a  declaration  of  war  does  not,  in  itself,  enact 
a  confiscation  of  the  property  of  the  enemy  within  the  territory  of  the 
belligerent,  is  believed  to  be  entirely  free  from  doubt.  Is  there  in  the 
act  of  Congress,  by  which  war  is  declared  against  Great  Britain,  any 
expression  which  would  indicate  such  an  intention? 

That  act,  after  placing  the  two  nations  in  a  state  of  war,  authorizes 
the  President  of  the  United  States  to  use  the  whole  land  and  naval  force 
of  the  United  States  to  carry  the  war  into  effect,  and  "to  issue  to  private 
armed  vessels  of  the  United  States,  commissions  or  letters  of  marque 
and  general  reprisal  against  the  vessels,  goods  and  effects  of  the  govern- 
ment of  the  United  Kingdom  of  Great  Britain  and  Ireland,  and  the 
subjects  thereof." 

That  reprisals  may  be  made  on  enemy  property  found  within  the 
United  States  at  the  declaration  of  war,  if  such  be  the  will  of  the  na- 
tion, has  been  admitted ;  but  it  is  not  admitted  that,  in  the  declaration 
of  war,  the  nation  has  expressed  its  will  to  that  effect. 

It  cannot  be  necessary  to  employ  argument  in  showing  that  when 
the  attorney  for  the  United  States  institutes  proceedings  at  law  for  the 
confiscation  of  enemy  property  found  on  land,  or  floating  in  one  of  our 
creeks,  in  the  care  and  custody  of  one  of  our  citizens,  he  is  not  acting 
under  the  authority  of  letters  of  marque  and  reprisal,  still  less  under 
the  authority  of  such  letters  issued  to  a  private  armed  vessel. 

The  "act  concerning  letters  of  marque,  prizes  and  prize  goods,"  cer- 
tainly contains  nothing  to  authorize  this  seizure. 

There  being  no  other  act  of  Congress  which  bears  upon  the  subject, 
it  is  considered  as  proved  that  the  legislature  has  not  confiscated  enemy 
property  which  was  within  the  United  States  at  the  declaration  of  war, 
and  that  this  sentence  of  condemnation  cannot  be  sustained. 


560  RIGHTS   AND   DUTIES   OF  NATIONS   IN   TIME   OP   WAR         (Part  3 

One  view,  however,  has  been  taken  of  this  subject  which  deserves  to 
be  further  considered. 

It  is  urged  that,  in  executing  the  laws  of  waj-,  the  executive  may  seize 
and  the  courts  condemn  all  property  which,  according  to  the  modern  law 
of  nations,  is  subject  to  confiscation,  although  it  might  require  an  act 
of  the  legislature  to  justify  the  condemnation  of  that  property  which, 
according  to  modern  usage,  ought  not  to  be  confiscated. 

This  argument  must  assume  for  its  basis  the  position  that  modern 
usage  constitutes  a  rule  which  acts  directly  upon  the  thing  itself  by  its 
own  force,  and  not  through  the  sovereign  power.  This  position  is  not 
allowed.  This  usage  is  a  guide  which  the  sovereign  follows  or  abandons 
at  his  will.  The  rule,  like  other  precepts  of  morality,  of  humanity,  and 
even  of  wisdom,  is  addressed  to  the  judgment  of  the  sovereign;  and 
although  it  cannot  be  disregarded  by  him  without  obloquy,  yet  it  may 
be  disregarded. 

The  rule  is,  in  its  nature,  flexible.  It  is  subject  to  infinite  modifica- 
tion.' It  is  not  an  immutable  rule  of  law,  but  depends  on  political  con- 
siderations which  may  continually  vary. 

Commercial  nations,  in  the  situation  of  the  United  States,  have  al- 
ways a  considerable  quantity  of  property  in  the  possession  of  their 
neighbors.  When  war  breaks  out,  the  question,  what  shall  be  done  with 
enemy  property  in  our  country,  is  a  question  rather  of  policy  than  of 
law.  The  rule  which  we  apply  to  the  property  of  our  enemy,  will  be 
applied  by  him  to  the  property  of  our  citizens.  Like  all  other  ques- 
tions of  policy,  it  is  proper  for  the  consideration  of  a  department  which 
can  modify  it  at  will ;  not  for  the  consideration  of  a  department  which 
can  pursue  only  the  law  as  it  is  written.  It  is  proper  for  the  consid- 
eration of  the  legislature,  not  of  the  executive  or  judiciary. 

It  appears  to  the  court,  that  the  power  of  confiscating  enemy  prop- 
(jerty  is  in  the  legislature,  and  that  the  legislature  has  not  yet  declared 
its  will  to  confiscate  property  which  was  within  our  territory  at  the  dec- 
laration of  war.  The  court  is  therefore  of  opinion  that  there  is  error 
m  the  sentence  of  condemnation  pronounced  in  the  Circuit  Court  in 
tliis  case,  and  doth  direct  that  the  same  be  reversed  and  annulled,  and 
that  the  sentence  of  the  District  Court  be  affirmed.^ 

6  The  dissenting  opinion  of  Mr.  Justice  Story,  in  which  one  of  the  justices 
concuiTed,  is  omitted.  It  is  the  opinion  which  the  learned  justice  had  de- 
livered in  the  Circuit  Court  below,  from  which  an  appeal  was  taken,  to  the 
effect  that  the  right  to  confiscate  existed  and  could  be  exercised  by  the  execu- 
tive without  an  act  of  Congress.     It  is  unfortunately  too  long  to  print. 

See  Ware  v.  Hylton,  3  Dall.  199,  231,  1  L.  Ed.  568  (1796).  Especial  refer- 
ence is  made  to  the  opinion  of  Mr.  Justiqp  Chase,  who  examined  the  question 
before  the  court  upon  the  basis  of  principle  and  precedent,  and  concluded 
that  "Virginia  had  a  right  [after  the  Declaration  of  Independence  of  the 
United  States],  as  a  sovereign  and  independent  nation,  to  confiscate  any 
British  property   within  its  territory." 

In  Folliott  V.  Ogden,  1  H^  Black.  123    (17S9),  it  was  held  inter  alia  that 


Ch.  3)  ENEMY   PROPERTY  561 


THE  FORTUNA. 

(High  Prize  Court  of  the  Republic  of  China,   1918.     Judgments   of  the 
High  Prize  Court,  1919,  68.) 

First  appellant,  Theodor  Hannig,a  German  subject  domiciled  in 
Germany. 

First  appellant's  representative,  Paul  Hense,  master  of  the  ship  For- 
tuna,  a  German  subject  residing  at  No.  11  Yates  Road,  Shanghai. 

Second  appellant,  Tung  Hansen,  a  Chinese  subject,  residing  at  No. 
379  Burkill  Road,  Shanghai. 

Representatives  of  second  appellant,  Tsai  Yu  Pai,  lawyer  residing 
in  Park  Road,  Shanghai,  and  Chan  Yun  Long,  lawyer,  residing  in  Yan 
Jar  Lung,  Shanghai. 

Whereas,  the  said  appellants  have  appealed  against  a  judgment  of 
the  District  Prize  Court  of  Shanghai  dated  the  11th  day  of  July  in 
the  seventh  year  of  the  Chinese  Republic,  which  held  that  the  steamer 
Fortuna  owned  by  the  said  German  merchant  and  captured  by  the 
Chinese  warship  Hai  Yung  was  a  lawful  prize;  and  whereas,  Mark 
Ting  Wa,  procurator  of  the  High  Prize  Court,  has  appeared  before 
this  court  and  submitted  his  opinion  relative  thereto :  This  court  after 
full  consideration  of  the  case  orders  and  directs  as  follows:  Judgment: 
The  appeal  is  hereby  dismissed. 

Reasons:  *  *  *  This  court  finjls  that,  according  to  the  first 
ground  of  appeal  of  the  appellant  Paul  Hense,  it  is  contended  that 
there  was  no  plot  to  blow  up  the  ship  Fortuna,  and  that  it  is  contrary 
to  international  law  that  the  ship  should  have  been  taken  into  custody 
by  the  Chinese  government  before  rupture  of  diplomatic  relations  with 
Germany.  But  according  to  the  evidence  of  Fu-Shi-Kwai,  commander 
of  the  warship  Hai  Yung,  the  ship  after  the  commencement  of  the 
European  War  ceased  to  be  engaged  in  any  trade  and  stopped  in  the 
port  of  Shanghai,  and  he,  on  receiving  a  report  from  the  customs  au- 

the  state  of  New  York,  during  the  American  Revolution  possessed  the  right 
inherent  in  a  sovereign  nation  to  confiscate  the  debts  and  private  property 
belonging  to  the  enemy  (loyalists).  But  see  same  case  on  error  in  K.  B.,  3 
Term  R.  725  (1790)  where  it  was  distinctly  held  by  Lord  Kenyon,  C.  J.,  that 
acts  of  confiscation  passed  in  the  several  states  of  North  America  after  the 
Declaration  of  Independence,  1776,  and  before  the  treaty  of  peace,  1783,  by 
which  Great  Britain  acknowledged  their  independence,  are  considered  as  a 
nullity  in  British  courts  of  .iustice.  See,  however,  the  comment  on  this  case 
by  Loughborough  (as  Lord  Chancellor)  in  Barclay  v.  Russell,  3  Ves.  Jr.  424. 
429  (1797).  This  latter  case,  dealing  with  the  claim  of  Maryland  to  succeed 
to  assets  of  the  proprietary  government,  should  be  considered  in  connection 
with  the  effect  of  change  of  sovereignty. 

For  a  collection  and  analysis  of  the  authoi-ities  in  behalf  of  the  riglit 
of  seizure  and  confiscation,  see  Francis  "Wharton's  Commentaries  on  Law,  § 
216,  pp.  307-309  (1884). 

Scott  Int.Law — 36 


562  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

thorities,  before  China  broke  off  diplomatic  relations  with  Germany, 
saying  that  the  German  ships  lying  in  the  port  of  Shanghai  were  go- 
ing to  be  blown  up  when  diplomatic  relations  broke  off,  took  custody 
of  the  ship  on  the  14th  day  of  March,  in  the  sixth  year  of  the  Re- 
public, as  a  precautionary  measure;  for  Shanghai  is  an  international 
commercial  center  and  immense  damage  would  be  done  to  its  trade  if  its 
port  were  obstructed  by  the  blowing  up  of  the  ships.  What  the  said 
commander  did  is  perfectly  lawful  in  international  law  as  a  measure 
of  self-defence.  The  appellant's  contention  in  this  respect  therefore 
fails.     *     *     * 

According  to  the  latter  part  of  the  fifth  and  the  sixth  grounds,  it  is 
contended  by  the  appellant  that  both  the  Prize  Court  Rules  and  the 
Regulations  Governing  Capture  at  Sea  were  promulgated  on  the  30th 
day  of  October,  1917,  whereas  the  ship  Fortuna  was  taken  into  cus- 
tody on  the  14th  day  of  March  and  captured  on  the  14th  day  of  August 
of  the  same  year,  so  that  China,  against  the  fundamental  principles 
of  law,  applied  rules  and  regulations  that  were  not  yet  in  existence,  and 
that  as  many  provisions  of  the  said  rules  and  regulations  were  dis- 
regarded by  the  Chinese  Navy  and  the  District  Prize  Court,  China  vio- 
lated the  law  of  her  own  making ;  and  it  is  inconceivable  how  the  con- 
demnation of  the  ship  could  be  based  on  such  law.  But  accordingjx) 
international  law  theTight  to  capture- €«emy-ships  is  inherenj:  in  a  bel- 
ligerent ;  rules  relating  to  capture  are  merely  rules  laid  down  for  his 
own  guidance  and  not  the  source  of  such  right;  so  that  it  cannot  be 
said  that  such  right  did  not  exist  before  the  promulgation  of  such  rules. 
The  capture  of  the!  ship  Fortuna  on  the  14th  day  of  June  in  the  sixth 
year  of  the  Republic  was  therefore  an  exercise  of  an  inherent  right, 
and  the  capture  was  lawful,  notwithstanding  that  neither  the  Regula- 
tions Governing  Capture  at  Sea  nor  the  Prize  Court  Rules  were  yet 
promulgated.  The  procedure  of  capture  followed  by  the  commander 
of  the  warship  Hai  Yung  varies  with  that  provided  in  the  said  Regula- 
tions, merely  because  the  said  Regulations  were  promulgated  after  the 
capture  had  been  effected  and  therefore  inapplicable.     *     *     * 

According  to  the  first  part  of  the  seventh  ground  of  appeal  it  is  con- 
tended that  the  ship  was  a  merchant  ship  lawfully  engaged  in  trade 
along  the  China  coast,  and  that,  as  it  was  peacefully  lying  in  harbor, 
it  ought  to  be  privileged  under  articles  1  and  2  of  the  Sixth  Hague 
Convention  of  1907.  But  the  object  of  said  Convention  is,  as  set  out 
in  the  preamble,  to  ensure  the  security  of  international  commerce 
against  the  surprises  of  war  and,  in  accordance  with  modern  practice,  to 
protect  as  far  as  possible  operations  undertaken  in  good  faith  and  in 
process  of  being  carried  out.'  ("Desireux  de  garantir  la  securite  du 
commerce  international  contre  les  surprises  de  la  guerre  et  voulant, 

f  Read:    "Out  before  the  outbreak  of  hostilities." 

Scott  Int.Law 


Ch.  3)  ENEMY   PROPERTY  563 

conformement  a  la  pratique  moderne,  proteger  autant  que  possible  les 
operations  engagees  de  bonne  foi  et  en  cours  d'execution  avant  le 
debut  des  hostilites.") 

It  is  obvious  that  the  said  Convention  is  applicable  only  to  mer- 
chant ships,  bona  fide  engaged  in  trade.  A  merchant  ship  that  has 
ceased  to  be  engaged  in  trade  and  takes  refuge  in  a  port  to  avoid  cap- 
ture by  belligerent  countries  cannot  claim  to  be  privileged  under  it. 
The  ship  Fortuna,  since  it  was  chartered  to  the  said  Tung  Hansen  be- 
tween September  and  October,  1915,  sailed  twice  to  Pukow  and  then 
remained  in  Yung  Shu  Poo  of  Shanghai  for  over  a  year.  Although 
the  Appellants  allege  interference  on  the  part  of  the  customs  officials, 
the  ship  having  long  ceased  to  be  engaged  in  trade  is  not  within  the 
meaning  of  the  said  Convention,  and  was  lawfully  condemned  accord- 
ing to  the  Regulations  Governing  Capture  at  Sea.  If  it  is  argued  that 
the  ship  ought  to  be  exempted  from  capture  as  being  a  ship  engaged 
in  local  trade  within  subclause  (a)  of  clause  1  of  Article  25  of  the 
Regulations  Governing  Capture  at  Sea,  the  answer  is  that  the  provi- 
sions of  the  said  subclause  are  based  on  article  3  of  the  Second  Hague 
Convention  relating  to  the  restrictions  on  capture  in  maritime  warfare 
and  the  said  article,  according  to  the  minutes  then  taken,  was  confined 
to  enemy  ships  engaged  in  coasting  or  local  trade  in  enemy  country. 
An  enemy  ship  found  in  a  belligerent  country,  even  if  it  were  engaged 
in  such  trade,  would  not  be  protected ;  for  the  belligerent  country  it- 
self can  supply  its  own  people  without  the  help  of  its  enemy.  There- 
fore no  matter  whether  or  not  the  ship  Fortuna  was,  as  alleged  by  the 
appellant  in  the  District  Price  Court,  engaged  in  trade  between  Foochow 
and  Tsingtau  and  therefore  in  local  trade,  the  fact  that  it  was  found 
within  Chinese  territorial  waters  justified  its  capture.  The  appellant's 
contention  in  this  respect  therefore  fails. 

According  to  the  latter  part  of  the  seventh  ground  of  appeal  it  is 
contended  that  the  ship  Fortuna  was  bona  fide  sold  by  the  appellant 
to  the  said  Tung  Hansen  on  the  12th  day  of  March,  1917;  that  the 
Shanghai  customs  authorities  have  been  officially  notified,  by  the  Ger- 
man consulate  general  in  Shanghai,  of  the  change  of  the  ship's  flag — 
a  fact  that  may  still  be  verified — that  the  District  Prize  Court  was 
wrong  in  refusing  to  recognise  the  sale;  that  the  provision  in  the 
contract  of  sale  that  the  ship  shall  remain  the  property  of  the  original 
owner  until  the  purchase  price  is  wholly  paid  is  only  a  usual  clause, 
which  cannot  be  regarded  as  invalidating  the  sale;  that  the  bona  fide 
of  the  transaction  can  be  proved  by  the  fact  that  negotiation  for  the 
sale  of  the  ship  was  commenced  before  the  rupture  of  diplomatic  re- 
lations between  China  and  Germany ;  that  the  District  Prize  Court 
was  wrong  for  not  being  impartial.  According  to  clause  4  of  article 
3  of  the  Regulations  Governing  Capture  at  Sea,  an  enemy  ship  trans- 
ferred to  persons  domiciled  in  the  Republic  or  in  a  neutral  state  before 
the  war  but  in  anticipation  of  its  outbreak,  or  during  the  war,  unless 


564  RIGHTS  AND   DUTIES  OF  NATIONS   IN  TIME  OF   WAR         (Part  3 

the  transfer  has  been  completed  and  is  shown  to  have  been  made  in 
good  faith,  is  an  enemy  ship.  A  transfer  is  completed  by  carrying  out 
the  intention  of  tlae  parties  to  the  sale  in  compliance  with  all  legal  for- 
malities required  for  the  transfer  of  ownership.  By  bona  fide  is  meant' 
that  the  contract  is  not  made  in  contemplation  of  war.  Transfer  of 
ownership  of  ships,  according  to  law  now  in  force  in  this  country,  does 
not  depend  on  registration.  Registration  of  ships,  as  required  by  the 
regulations  made  by  the  Ministry  of  Communication,  is  merely  the  re- 
sult of  an  administrative  rule,  not  an  essential  condition  for  the  trans- 
fer of  ownership  in  law. 

According  to  the  rule  of  law  that  everything  is  governed  by  stat- 
utes, failing  that,  by  customs,  and  failing  that,  by  general  principles, 
the  transfer  of  ships,  as  there  is  no  statute  or  custom  on  the  matter, 
should  be  governed  by  general  principles,  according  to  which  a  ship 
is  only  movable  property  and,  therefore,  delivery  of  possession  is  es- 
sential to  the  transfer  of  its  ownership.  Assuming  that  the  contract 
of  sale  is  binding,  it  only  means  that  between  the  parties  the  contract 
gives  rise  to  an  enforceable  obligation.  The  question  whether  the  al- 
leged transfer  of  the  ship  Fortuna  is  complete  or  not  should  therefore 
be  governed  by  the  principle  referred  to.  Now  the  appellant  and  the 
said  Tung  Hansen  have  between  themselves  made  two  contracts  both 
of  which,  as  nothing  is  said  of  the  one  cancelling  the  other,  are  bind- 
ing. According  to  the  first  one  dated  the  ninth  day  of  March  in  the 
sixth  year  of  the  Republic,  it  is  expressly  stipulated  that,  as  long  as 
the  purchase  price  has  not  been  wholly  paid,  the  ship  remains  the  prop- 
erty of  the  original  owner,  and  according  to  the  other,  dated  the  13th 
day  of  March,  the  validity  of  the  sale  depends  on  the  change  of  the 
flag.  'The  point  that  only  ten  thousand  dollars  of  the  purchase  price 
has  been  paid  is  not  contested  by  the  appellant,  nor  is  the  point  that, 
according  to  the  evidence  of  the  said  Tung  Hansen,  taken  before  the 
District  Prize  Court  on  the  15th  day  of  June,  this  year,  "a  change  of 
the  ship's  nationality  could  not  be  effected  until  the  ship's  repair  was 
completed  and  a  new  license  obtained,  and  that  for  this  reason  it  was 
not  flying  the  Chinese  flag  when  the  officer  of  the  Chinese  Navy  came 
on  board,  although  it  had  been  sold  to  him,  because  the  new  license 
had  then  not  yet  been  issued."  Thus  it  is  obvious  that  the  sale  can- 
not be  said  to  have  been  completed.  » 
I  Moreover,  delivery  of  possession  has  never  been  proved  by  the  ap- 
pellant. Even  according  to  his  own  evidence  taken  on  the  same  day 
as  that  of  the  said  Tung  Hansen  to  the  effect  that,  since  the  purchase 
price  had  not  been  wholly  paid,  appellant  retained  ownership  of  the 
ship  notwithstanding  deUvery,  there  was  at  least  no  delivery  of  pos- 
session with  intention  to  transfer  ownership,  and,  irrespective  of  the 
question  of  bona  fide  of  the  transaction,  the  ship  has  not  lost  its  enemy 
character.  It  has  been  contended  that,  if  the  ship  had  not  been  taken 
into  custody  by  the  Chinese  government,  the  sale  of  the  ship  would 
have  been  completed.     But  the  taking  of  the  ship  into  custody  was 


Ch.  3)  ENEMY    PROPERTY  565 

the  exercise  of  a  right  of  ^elf-protection  well  recognised  in  interna- 
tional law  and,  as  it  was  apprehended  that  the  ship  would  endanger 
the  security  of  the  port,  it  was  properly  taken  into  custody;  there- 
fore assuming  that  the  completion  of  the  sale  of  the  ship  has  been 
prevented  by  its  being  taken  into  custo%  as  alleged,  the  fault  only  lies 
wdth  the  appellant.  In  conclusion,  as  the  sale  of  the  ship  had  not  been 
completed,  it  was  lawfully  captured,  and  the  appellant's  contention  is 
untenable. 

As  to  the  grounds  of  appeal  maintained  by  the  appellant  Tung  Han- 
sen, except  those  which  are  a  mere  repetition  of  those  maintained  by 
the  said  Paul  Hense,  the  most  important  point  is  that  since  the  ship 
had  been  sold  to  him  (Tung  Hansen)  it  ought  not  to  have  been  con- 
demned. But,  as  pointed  out  in  the  earlier  part  of  this  judgment,  the 
ownership  of  the  ship  has  not  been  completely  transferred  to  him ; 
therefore  this  contention  of  his  is  groundless.  The  rest  does  not  merit 
an  answer  at  all. 

Wherefore  the  finding  of  this  court  is  that  there  is  no  ground  for 
appeal  and  the  appeal  is  hereby  dismissed.  In  accordance  with  article 
30  of  the  Prize  Court  Rules,  this  court  pronounces  judgment  as  above 
after  review  of  the  records,* 

8  In  The  Germania,  [1916]  P.  D.  5  (1915),  Sir  Samuel  Evans  held  that  a 
yacht  is  not  a  navire  de  commerce,  and  therefore  is  not  entitled  to  the  pro- 
tection of  days  of  grace  according  to  article  1  of  the  Sixth  Hague  Convention 
of  1907.  To  the  same  effect  is  the  decision  of  the  German  Prize  Court  in  the 
Primavora,  Entscheidungen  des  Oberprisengerichts  in  Berlin,  1918,  194  (1916). 

Enemy  tugs  and  lighters  employed  in  ports  of  the  other  belligerents  are 
not  exempt  from  capture.  See  The  Atlas,  2  British  and  Colonial  Prize  Cases. 
470  (1916) ;  Procurator  in  Egypt  v.  Deutsches  Kohlen  Depot  Gesellschaft 
[1919]  A.  C.  291  (1918). 

To  be  exempt  from  confiscation  the  enemy  merchantmen  must  be  actually 
within  port,  as  distinguished  from  the  roadstead  and  from  the  port  for  cus- 
toms and  fiscal  purposes.  The  Mowe,  [1915]  P.  D.  1  (1914);  The  Belgia, 
[1916]  2  A.  C.  183  (1916);  1  British  and  Colonial  Prize  Cases,  303  (1915);  2 
Id.,  32,  (1916);  The  Erymonthos,  1  British  and  Colonial  Prize  Cases,  339 
(1914).  In  accord  with  these  views  is  the  decision  of  the  German  Prize 
Court  in  The  Fenis,  Entscheidungen  des  Oberprisengerichts  in  Berlin,  1918, 
1  (1914). 

In  The  Achaia,  [1916]  2  A.  C.  198  (1016),  Lord  Parlcer  of  Waddington  held, 
on  behalf  of  the  Privy  Council,  that  the  Achaia,  a  German  vessel,  was  given 
sufficient  time  to  leave  the  port  of  Alexandria,  Egypt,  saying: 

"She  was  offered  a  pass  to  a  neutral  port,  and  there  is  no  reason  to  sup- 
pose that  such  pass  was  insufficient,  or  would  not  have  been  recognized  as 
valid  by  any  belligerent  power.  The  fact  that  the  vessel  did  not  leave  Alex- 
andria under  this  pass  was  not  due  to  force  majeure,  but  to  her  own  delib- 
erate election  not  to  do  so.  She  cannot,  therefore,  rely  on  the  provisions  of 
article  2  of  the  Convention.  Even  if  Alexandria  could  be  regarded  as  a  neu- 
tral port  the  fact  would  be  immaterial.  The  seizure  of  an  enemy  vessel  in 
a  neutral  port,  though  a  breach  of  neutrality,  would  not  in  a  court  of  prize 
afford  any  ground  for  its  release." 

But  failure  to  leave  within  days  of  grace,  caused  by  force  majeure,  does 
not  entail  confiscation.    The  Turul,  [1919]  A.  C.  515  (1919). 

In  The  Marie  I.oonhardt.  [1921]  P.  I).  1  fl920),  Sir  Henry  Duke,  President 
of  the  Probate,  Divorce  and  Admiralty  Division,  toolv  occasion  to  consider 
the  legal  status  of  belligerent  vessels  found  in  a  British  port  upon  the  out- 
break of  war  with  Germany,  and  concluded  as  follows: 

"Giving  all  the  weight  I  can  give  to  the  concessions  made  by  belligerenl 


566  EIGHTS  AND   DUTIES  OF  NATIONS   IN   TIME   OF   WAR         (Part  3 

« 

CHAPTER  IV 
ALIEN  ENEMIES  BEFORE  COURTS  OF  JUSTICE 


WELLS  V.  WILLIAMS.!  ' 

(Court  of  King*?  Bench,  1697.     1  L.  Raym.  282.) 

Debt  upon  bond.  The  defendant  pleads,  that  the  plaintiff  was  an 
alien  enemy  born  in  France  of  French  parents  who  were  alien  enemies, 
and  that  he  came  into  England  sine  salvo  conductu,  and  concludes  in 
bar.  The  plaintiff  replies,  that  at  the  time  of  making  of  the  bond 
he  was,  and  yet  is,  here  per  licentiam  et  sub  protectione  domini  regis. 
The  defendant  dem^urs.     And  Wright,  Serjeant,  objected,  that  it  ap- 

powers  from  1854  to  1914,  and  the  concurrence  of  numerous  states  in  a  desire 
to  secure  as  a  right  under  international  law  days  of  grace  for  enemy  ships 
found  in  the  ports  of  a  belligerent  at  the  outbreak  of  war,  I  find  myself 
brought  definitely  to  the  conclusion  that  the  law  on  this  subject  remained  in 
1914,  and  is  now,  as  it  was  in  the  time  of  Lord  Mansfield.  Ships  of  the  ene- 
my in  our  ports  at  the  declaration  of  war,  or  the  outbreak  of  hostilities, 
are  'detained  in  our  ports  to  be  confiscated  if  no  reciprocal  agreement  is 
made.'  "    Lindo  v.  Rodney,  2  Doug.  613,  615,  note  (1781). 

In  the  case  of  The  Blonde  and  Other  Vessels  (Privy  Council,  1922 ;  38 
Times  L.  R.,  328),  it  was  held  that  as  Great  Britain  had  continued  throughout 
the  war  to  treat  the  Sixth  Hague  Convention  of  1907  as  binding,  tlie  (German 
owners  would  be  entitled  under  Article  2  to  release  of  their  vessels  seized  in 
British  ports,  and  that  the  one  surviving  ship  and  the  appraised  values  of  the 
lost  ships  should  be  treated  as  German  property  under  the  provisions  of  the 
Treaty  of  Versailles. 

It  has  been  usual  for  nations — especially  since  the  good  example  set  by 
Turkey  in  its  declaration  of  war  against  Russia.  October  4,  185.3 — to  allow 
a  certain  number  of  days  for  vessels  to  leave  port,  and  to  exempt  from  cap- 
ture upon  the  high  seas,  merchant  vessels  of  the  enemy  which  had  left  their 
home  ports  before  the  beginning  of  war. 

In  the  absence  of  an  agreement  to  this  effect,  and.  it  would  appear,  also 
in  the  absence  of  reciprocity,  merchant  vessels  of  the  enemy  are  still  liable 
to  capture,  although  they  may  ha\e  loft  their  homo  ports  before  and  with- 
out knowledge  of  the  outbreak  of  war. 

Of  the  many  cases  on  this  subject,  see  The  Porto,  French  Prize  Court,  Jour- 
nal Ofliciel,  March  30,  1915.  p.  1732  (1914),  captured  at  sea  by  the  French 
mine  layer  Pluton,  August  5,  1914. 

On  the  whole  subject,  see  Convention  VI.  Relating  to  the  Status  of  Enemy 

Merchant  Ships  at  the  Outbreak  of  Hostilities,  signed  at  The  Hague,  October 

18,  1907,  Appendix,  post,  p.  1149. 

//     1  The  principal  case  is  reported  more  briefly  in  1  Salk.  46  (1697),  as  follows: 

I    "If  an   alien  enemy  comes  hither   subsalvo   conductu,   he  may   maintain   an 

y  action ;    if  an  alien  amy  comes  hither  in  time  of  peace,  per  licentiam  domini 

\  regis,  as  the  French  Protestants  did,  and  lives  here  sub  protectione.  and  a 

1  war  afterwards  begins  between  the  two  nations,  he  may  maintain  an  action; 

/  for  suing  is  but  a  consequential  right  of  protection,  and  therefore  an  alien 

/    enemy,  that  is  here  in  peace  under  protection,  may  sue  a  bond ;    aliter  of  one 

/     commorant  in  his  own  country." 


Ch.  4)        ALIEN  ENEMIES  BEFORE  COURTS  OF  JUSTICE  567 

pears  that  the  plaintiff  is  an  ahen  enemy,  and  came  here  sine  salvo 
conductu.  He  admitted,  that  an  alien  enemy,  who  comes  here  with  safe 
conduct,  may  maintain  an  action.  But  unless  there  is  a  safe  conduct, 
though  it  be  per  licentiam  et  protectionem,  he  cannot  maintain  an  ac- 
tion. For  by  the  same  reason  a  captive  or  prisoner  of  war  may  main- 
tain an  action.  But  to  that  it  was  answered  and  resolved,  that  the  ne- 
cessity of  trade  has  mollified  the  too  rigorous  rules  of  the  old  law  in 
their  restraint  and  discouragement  of  aliens.  A  Jew  may  sue  at  this 
day,  but  heretofore  he  could  not,  for  then  they  were  looked  upon  as 
enemies.  But  now  commerce  has  taught  the  world  more  humanity. 
And  as  to  the  case  in  question,  admit  that  the  plaintiff  came  here  before 
the  war  was  proclaimed  (for  so  it  may  be  intended),  then  this  action 
is  maintainable:  1.  Because  there  was  no  need  of  a  safe  conduct  in 
time  of  peace.  2.  Though  the  plaintiff  came  here  since  the  war,  yet 
if  he  has  continued  here  by  the  king's  leave  and  protection  ever  since, 
without  molesting  the  government  or  being  molested  by  it,  he  may 
be  allowed  to  sue,  for  that  is  consequent  to  his  being  in  protection. 

And  TrEby,  Chief  Justice  said,  that  wars  at  this  day  are  not  so  im- 
placable as  heretofore,  and  therefore  an  alien  enemy,  who  is  here  in 
protection,  may  sue  his  bond  or  contract,  but  an  alien  enemy  abiding 
in  his  own  country  cannot  sue  here.  And  Dier,  2  b.  pi.  8,  and  the 
other  books  ought  to  be  understood  so. 

Note,  that  Treby,  Chief  Justice,  said  in  this  case  last  Trinity  term, 
that  the  king  may  declare  war  against  one  part  of  the  subjects  of  a 
prince,  and  may  except  the  other  part.  And  so  he  has  done  in  this  war 
with  France,  for  he  has  excepted  in  his  declaration  of  war  with  France 
all  the  French  Protestants.  And  of  such  proclamations  all  ought  to 
take  notice,  because  the  war  begins  only  by  the  king's  proclamation,^ 

2  In  Sparenhurgh  v.  Bannatyne,  1  Bos.  &  P.  163,  170  (1797),  it  appeared 
that  the  plaintiff,  a  German,  was  captured  on  board  a  Dutch  ship  during  war 
between  Holland  and  England;  that  the  ship  was,  at  the  time,  committing  an 
act  of  hostility  against  Great  Britain;  that  the  plaintiff  was  taken  as  pris- 
oner of  war  to  St.  Helena.  v\'here,  with  the  consent  and  permission  of  the 
commanding  officer  of  the  English  troops,  he  made  a  contract  to  serve  as  a 
seaman  upon  the  defendant's  vessel,   the  Caledonia. 

On  suit  brought  by  the  plaintiff  for  his  wages  imder  tlie  contract,  the  de- 
fendant contended  that  the  plaintiff  was  an  alien  enemy  when  captured ;  that 
he  remained  so  during  the  tin^e  when  he  was  a  prisoner  of  war,  and  that 
therefore,  he  could  not  su(^  in  an  English  court. 

On  this  state  of  affairs,  the  court  held  that  the  plaintiff  was  an  alien  ene- 
my only  during  the  time  of  his  temiwrary  allegiance  to  the  enemy,  and  that 
when  his  temporary  allegiance  was  severed,  he  bwame  a  neutral,  and  there- 
fore entitled  to  sue. 

In  the  course  of  his  opinion  Chief  Justice  P]yre  said: 

"Tliis  is  certainly  one  of  the  hardest  cases  I  ever  knew,  and  I  think  we 
ought  to  learf  against  it.  And  if  a  distinction  is  to  be  found  between  tht- 
permanent  character  of  alien  enemy,  to  which  the  courts  of  .iustice  cannot 
give  protection,  and  the  temporary  character,  we  shall  readily  adopt  it.  As  to 
the  ground  of  policy  which  has  been  taken  in  argument  for  the  defendant, 
namely,  that  a  benefit  would  result  to  the  enemy  from  the  plaintiff's  recover- 


568  RIGHTS  AND   DUTIES  OF  NATIONS   IN  TIME  OF   WAE         (Part  3 

THE  CHARLOTTE.  ' 

(High  Court  of  Admiralty,  1813.    1  Dodson,  212.) 

This  vessel,  under  American  colors,  took  on  board,  at  Providence, 
in  Rhode  Island,  a  cargo  of  provisions  and  other  goods,  with  which 
she  sailed,  bound  to  Grenada,  and  arrived  at  the  port  of  St.  George, 
in  that  island,  on  the  16th  of  April,  1809.  On  the  19th  of  the  same 
month  the  vessel  was  seized  by  Lieutenant  Middleton,  representing 
himself  to  be  the  commander  of  His  Majesty's  prison  ship  Antigua, 
and  was  by  him  proceeded  against  for  a  breach  of  the  revenue  laws. 
On  the  24th  of  April  a  claim  was  given  by  the  master  for  the  ship 
and  cargo,  as  the  property  of  an  American  merchant ;  and  on  the  same 
day  the  vessel  and  cargo  were  again  seized  by  Thomas  Martin,  a 
searcher  in  the  customs  for  the  port  of  St.  George,  in  the  island  of 
Grenada,  on  whose  behalf  an  information  was  afterwards  filed.  On  the 
12th  of  May  the  cause  came  on  for  hearing  in  the  Vice- Admiralty 
Court,  when  the  judge  pronounced  the  ship  and  cargo  to  be  forfeited, 
but  reserved  the  question  respecting  the  rights  of  the  informants.  On 
the  27th  of  May  the  reserve  question  came  on,  when  the  judge  dismissed 
the  information  filed  on  behalf  of  Lieutenant  Middleton,  for  want  of 
legal  authority  to  make  the  seizure  on  which  it  was  founded,  and  ad- 
judged the  brig  and  cargo  to  be  forfeited  under  the  information  filed 
by  Thomas  Martin,  and  the  net  proceeds  to  be  divided,  one  third  to 
the  collector  for  the  use  of  His  Majesty,  one  third  to  the  commander- 
in-chief  of  the  island,  and  one  third  to  the  informant.  From  this 
sentence  an  appeal  was  prosecuted  by  the  claimant,  and  an  intervention 
given  on  behalf  of  Lieutenant  Middleton.  In  consequence  of  the  war 
which  has  since  taken  place  between  this  country  and  America,  the 
appellant  has  become  an  alien  enemy ;  and  the  question  which  stood 
first  for  the  decision  of  the  court  was,  whether  he  could,  under  such 
circumstances,  be  allowed  to  prosecute  his  appeal.  A  second  question 
arose  between  the  two  seizors,  and,  as  it  was  admitted  that  the  seizure 
by  Lieutenant  Middleton  was  first  in  point  of  time,  the  case  depended 

ing ;  it  is  a  policy,  perhaps  doubtful,  certainly  remote,  and  which  I  do  not 
hold  to  be  satiisfactory.  I  take  the  true  ground  upon  which  the  plea  of  alien 
enemy  has  been  allowed  is,  that  a  man,  professing  himself  hostile  to  this 
country,  and  in  a  state  of  war  with  it,  cannot  be  heard  if  he  sue  for  the 
benefit  and  protection  of  our  laws  in  the  courts  of  this  country.  We  do  not 
allow  even  our  own  subjects  to  demand  the  benefit  of  the  law  in  our  courts, 
if  they  refuse  to  submit  to  the  law  and  the  jurisdiction  of  our  courts.  Such 
is  the  case  of  an  outlaw.  Modern  civilization  has  introduced  great  qualifi- 
cations to  soften  the  rigours  of  war,  and  allows  a  degree  of  intercoiu'se  with 
enemies,  and  particularly  with  prisoners  of  war,  which  can  hardly  be  carried 
on  without  the  assistance  of  our  courts  of  justice.  It  is  not  therefore  good 
policy  to  encourage  these  strict  notions,  which  are  insisted  on  contrary  to 
morality  and  public  convenience.  As  the  real  justice  of  the  case  is  with  the 
verdict,  and  a  legal  distinction  to  exclude  this  unworthy  defence  can  fairly 
be  maintained,  I  think  no  new  trial  should  be  granted." 


Ch.  4)  ALIEN   ENEMIES   BEFORE  COURTS  OF  JUSTICE  569 

on  his  competency  to  make  the  seizure.  It  appeared  that  he  had,  in 
the  year  1805,  been  appointed  to  the  command  of  His  Majesty's  ship 
Antigua,  then  used  as  a  prison  ship,  and  tliat  his  appointment  had  not 
been  revoked  at  the  time  of  this  seizure.  The  prisoners,  however,  had 
been  removed  to  the  non-commissioned  vessel,  The  Arethusa,  which 
had  been  hired  for  their  reception  in  consequence  of  The  Arethusa  [An- 
tigua] having  become  unfit  for  the  purpose. 

Sir  W.  Scott.  This  was  a  suit  originally  instituted  against  this  ship 
and  cargo  for  a  breach  of  the  revenue  laws,  in  the  Vice-Admiralty  Court 
of  Grenada,  where  the  property  was  condemned  to  the  crown  and  the 
seizors,  in  the  usual  proportions.  It  was  not  a  personal  action,  but  a 
proceeding  in  rem ;  and  the  sentence  of  the  court,  as  usual  in  cases  of 
this  kind,  condemned  the  thing  itself.  A  person  representing  the  owner 
appeared,  claiming  the  restitution  of  the  goods;  and,  I  think,  he  has 
been  justly  described  to  have  come  before  the  court  in  the  character 
of  plaintiff,  since  the  policy  of  the  law  throws  on  him  the  duty  of  a 
plaintiff — the  onus  of  making  out  his  case.  How  far  he  discharged  that 
duty  in  the  court  below,  it  is  impossible  for  me  to  say,  since  the  pro- 
ceedings are  not  before  me.  It  appears,  however,  that  this  claim  was 
rejected.  He  then  comes  before  this  court  as  appellant,  which  char- 
acter he  had  a  perfect  right  to  sustain;  but,  unfortunately  for  him, 
the  war  with  America  takes  place,  and  imposes  on  him  a  disability  in 
law  to  carry  on  an  action  in  any  of  the  courts  of  this  country.  The 
sentence  of  the  court  below  must  be  taken  as  right,  unless  it  has  been 
reversed  by  the  judgment  of  a  superior  court.  Has  the  party,  who, 
by  the  intervention  of  hostilities,  is  become  an  alien  enemy,  a  right  to 
come  forward  in  the  Court  of  Appeal,  and  ask  for  a  reversal  of  the 
sentence?  I  am  clearly  of  opinion  that  he  has  not.  It  is  an  universal 
disability  under  which  he  labors,  and  which  all  courts  are  bound  to 
notice.  Whatever  rights  he  might  have  possessed  pass  to  the  crown. 
The  officers  of  the  crown  might,  if  they  had  thought  proper,  have  de- 
fended the  claim ;  and,  if  they  had  succeeded  in  obtaining  a  reversal 
of  the  sentence,  the  king  would  have  been  entitled  to  the  whole,  instead 
of  a  proportion,  of  the  property.  But,  to  the  party  himself,  the  court 
can  assign  nothing,  nor  has  it  the  power  of  attending  to  his  claims  in 
any  manner.  It  is  under  an  obligation  of  shutting  its  ears  against  his 
complaints.  The  cases  which  have  been  cited  from  Dallas  ^  by  Dr. 
Stoddart,  appear  to  be  of  a  different  kind.  I  have  not  had  an  oppor- 
tunity of  looking  into  them,  but  they  appear  to  have  been  personal  ac- 
tions. It  has  not  been  much  the  practice,  in  modern  times,  to  proceed 
against  the  property  of  enemies  found  in  the  country,  but  it  is  nowhere 
laid  down  as  law,  that  an  inquest  of  office  might  not  now  be  had,  and 
the  property  confiscated.  I  remember  a  proceeding  to  that  effect  in- 
the  American  war ;    and  there  can  be  no  doubt  that  the  law  remains 

8  State  of  Georgia  v.  Brailsford,  etc.,  3  Dall.  1,  1  L.  Ed.  483  (1794). 


570  RIGHTS  AND   DUTIES   OF  NATIONS  IN   TIME  OP   WAR         (Part  3 

precisely  the  same  as  it  was  at  that  time.  It  is  said,  that  I  may  suspend 
the  present  proceedings,  and  give  the  party  an  opportunity  of  renew- 
ing his  claim  on  the  return  of  peace.  But  this  is  a  greater  privilege 
than  an  alien  friend,  or  any  other  person,  could  demand  from  the 
court.  Such  a  suspension  would  be  an  act  of  injustice  to  the  party  in 
possession  of  the  sentence ;  and,  therefore,  I  think  it  incumbent  on  me 
to  reject  the  application. 


PORTER  V.  FREUDENBERG. 

KREGLINGER  v.  S.  SAMUEL  &  ROSENEELD. 

In  re  MERTEN'S  PATENTS. 

(Court  of  Appeals,  1915.     [1015]  1  K.  B.   857.) 

Porter  v.  Freudenberg. 

Appeal  of  the  plaintiff  from  an  order  made  at  chambers  by  Scrut- 
ton,  J.,  giving  leave  to  issue  a  concurrent  writ  against  the  defendant, 
an  alien  enemey,  and  to  serve  notice  of  it  upon  the  defendant  at  Berlin. 

The  action  was  brought  to  recover  a  quarter's  rent  due  on  Septem- 
ber 29,  1914,  under  a  lease  made  in  1903,  at  a  rental  of  £625.,  of  cer- 
tain premises  in  Princes  street,  Hanover  Square.  The  defendant  re- 
sided and  carried  on  business  as  a  mantle  manufacturer  at  Berlin,  in 
the  Empire  of  Germany,  and  had  for  some  time  before  the  outbreak 
of  the  war  carried  on  a  branch  establishment  at  the  above  premises 
by  means  of  an  ageijt  named  Arthur  Barnes.  According  to  the  plain- 
tiff's affidavit,  a  quantity  of  stock  was  usually  kept  on  the  premises, 
but  immediately  before  September  29,  1914,  the  whole  of  the  stock, 
fixtures,  and  fittings  was  removed  from  the  premises.  On  September 
28  the  keys  of  the  premises  were  sent  to  the  plaintiff  by  Barnes,  and 
the  plaintiff  intimated  that  they  would  be  held  at  the  disposal  of  Barnes 
as  the  agent  of  the  defendant.     *     *     * 

Lord  Re;ading,  C.  j.*  *  *  *  The  main  questions  to  be  consid- 
ered are,  first,  the  capacity  of  alien  enemies  to  sue  in  the  king's  courts ; 
secondly,  their  liability  to  be  sued ;  thirdly,  their  capacity  to  appeal 
to  the  appellate  courts,  and,  generally,  their  right  to  appear  and  be 
heard  in  the  king's  courts,     *     *     * 

In  ascertaining  the  rights  of  aliens  the  first  point  for  consideration  is 
whether  they  are  alien  friends  or  alien  enemies.  Alien  friends  have 
long  since  been,  and  are  at  the  present  day,  treated  in  reference  to  civil 
rights  as  if  they  were  British  subjects,  and  are  entitled  to  the  enjoy- 
ment of  all  personal  rights  of  a  citizen,  including  the  right  to  sue  in 

*  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Ch,  4)       ALIEN  ENEMIES  BEFORE  COURTS  OF  JUSTICE  571 

the  King's  Courts.  Alien  enemies  have  no  civil  rights  or  privileges  un- 
less they  are  here  under  the  protection  and  by  permission  of  the  crown. 
Blackstone  (21st  Ed.)  vol.  1,  c.  10,  p.  372.     *     =!<     * 

In  Walford's  treatise  on  the  Law  respecting  Parties  to  Actions, 
published  1842,  there  is  a  chapter  in  vol.  1,  p.  647,  dealing  with  dis- 
abilities of  civil  origin  which  well  repays  close  and  diligent  study. 
When  treating  of  alien  enemies  the  learned  author  at  page  650  thus 
states  the  law :  "Alien  enemies  are  distinguishable  according  as  they 
are  under  the  king's  special  protection  or  not.  If  an  alien  enemy  came 
here  under  a  safe  conduct  or  is  commorant  here  by  the  king's  license 
and  under  his  protection  he  seems  to  stand  in  the  same  position  as  to 
the  right  of  maintaining  actions  in  our  courts  as  an  alien  friend,  a  right 
of  suing  being  an  incidental  right  to  protection" — that  is,  he  is  no  longer 
under  the  disability  attaching  to  an  alien  enemy. 

Whenever  the  capacity  of  an  alien  enemy  to  sue  or  proceed  in  our 
Courts  has  come  up  for  consideration,  the  authorities  agree  that  he 
cannot  enforce  his  civil  rights  and  cannot  sue  or  proceed  in  the  civil 
courts  of  the  realm.     *     *     * 

Having  stated  the  common  law  of  England  in  regard  to  the  question 
of  the  alien  enemy's  right  to  sue  in  our  Courts  of  law,  we  have  now  to 
consider  whether  the  Hague  Convention  of  1907  upon  the  Laws  and 
Customs  of-War  on  Land,  article  23  (h)  of  chapter  1  of  section  2  ot 
the  Annex  entitled  "Regulations  respecting  the  Laws  and  Customs  of 
War  on  Land,"  has  any  bearing  upon  the  questions  we  have  to  deter- 
mine. The  heading  of  that  section  is  "Of  Hostilities."  Section  3  is 
headed  "Military  Authority  over  the  Territory  of  a  Hostile  State." 

Chapter  1  of  section  2  is  entitled  "The  Means  of  Injuring  the  Ene- 
my ;  Sieges  and  Bombardments."  The  articles  in  it  are  numbered  from 
22  to  28.     *     *     * 

The  important  paragraph  is  23  (h)  : — "To  declare  abolished,  sus- 
pended or  inadmissible  the  right  of  subjects  of  the  hostile  party  to  in- 
stitute legal  proceedings."     *     *     * 

Extending  our  view  from  the  paragraph  itself  to  the  immediate  con- 
text, we  find  that  it  is  included  in  a  group  of  paragraphs  forming  arti- 
cle 23,  every  other  of  which  relates  solely  to  the  conduct  of  a  military 
force  and  its  commanders  in  a  campaign  and  not  at  all  to  the  admin- 
istration of  the  law  respecting  alien  enemies  at  home ;  that  the  chap- 
ter of  which  the  article  forms  part  is  entitled  "Means  of  Injuring  the 
Enemy;  Sieges  and  Bombardments,"  and  that  the  section  of  the  An- 
nex to  which  the  chapter  belongs  bears  the  general  heading  "Of  Hostili- 
ties." Extending  our  view  still  further  to  the  Convention  itself,  we 
find  the  declaration  which  governs  the  whole  Annex  and  controls  its 
application  in  article  1 :  "The  contracting  powers  will  issue  to  their 
armed  land  forces  instructions  which  shall  be  in  confbrmity  with  the 
'regulations  respecting  the  laws  and  customs  of  war  on  land'  annexed 
to  the  present  Convention." 


572  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   WAR         (Part  3 

It  is  impossible  to  suppose  that  this  means — as  it  must  do  if  the  ef- 
fect of  the  paragraph  (h)  is  to  abrogate  the  law  existing  hitherto  in 
England  and  to  give  an  alien  enemy  the  position  of  a  persona  standi 
in  judicio  in  English  courts  of  law — that  the  War  Office  of  Great 
Britain  shall  in  the  present  war  for  this  purpose  issue  instructions  to 
Sir  John  French,  commanding  our  land  forces  in  the  field,  forbidding 
him  to  "declare"  that  the  rights  of  alien  enemies — Germans,  Austrians, 
or  Turks — to  institute  legal  proceedings  in  the  High  Court  of  Justice 
in  London  are  suspended  or  inadmissible.  And  yet  this  absurdity 
seems  necessarily  to  follow  from  the  scheme  of  the  Convention  as  ap- 
plied to  paragraph  (h)  if  the  interpretation  of  this  paragraph  is  that 
which  is  contended  for  by  those  who  find  in  it  an  abrogation  of  our 
law,  which  hitherto  has  not  given  to  an  alien  enemy  the  position  of  a 
persona  standi  in  judicio. 

Our  view  is  that  article  23  (h),  read  with  the  governing  article  1  of 
the  Convention,  has  a  very  different  and  very  important  effect,  and 
that  the  paragraph,  if  so  understood,  is  quite  properly  placed  as  it  is 
placed  in  a  group  of  prohibitions  relating  to  the  conduct  of  an  army 
and  its  commander  in  the  field.     *     *     * 

Having  now  explained  the  meaning  of  "alien  enemy"  for  civil  pur- 
poses, and  having  decided  that  such  alien  enemy's  right  to  sue  or  pro- 
ceed either  by  himself  or  by  any  person  on  his  behalf  in  the  king's 
courts  is  suspended  during  the  progress-  of  hostilities  and  until  after 
peace  is  restored  (see  also  Flindt  v.  Waters,  [1812]  15  East,  260), 
the  next  point  to  consider  is  whether  he  is  liable  to  be  sued  in  the 
king's  courts  during  the  war.  To  allow  an  alien  enemy  to  sue  or  pro- 
ceed during  war  in  the  civil  courts  of  the  king  would  be,  as  we  have 
seen,  to  give  to  the  enemy  the  advantage  of  enforcing  his  rights  by 
the  assistance  of  the  king  with  whom  he  is  at  war.  But  to  allow  the 
alien  enemy  to  be  sued  or  proceeded  against  during  war  is  to  permit 
subjects  of  the  king  or  alien  friends  to  enforce  their  rights  with  the 
assistance  of  the  king  against  the  enemy.  Prima  facie  there  seems  no 
possible  reason  why  our  law  should  decree  an  immunity  during  hos- 
tilities to  the  alien  enemy  against  the  payment  of  just  debts  or  de- 
mands due  to  British  or  neutral  subjects.  The  rule  of  law  suspending 
the  alien  enemy's  right  of  action  is  based  upon  public  policy,  but  no 
considerations  of  public  policy  are  apparent  which  would  justify  pre- 
venting the  enforcement  by  a  British  or  neutral  subject  of  a  right 
against  the  enemy.  As  was  said  by  Bailhache,  J.,  in  Robinson  &  Co,  v. 
Continental  Insurance  Co.  of  Mannheim,  [1915]  1  K.  B.  155,  at  page 
159:  "To  hold  that  a  subject's  right  of  suit  is  suspended  against  an 
alien  enemy  is  to  injure  a  British  subject  and  to  favour  an  alien  en- 
emy and  to  defeat  the  object  and  reason  of  the  suspensory  rule."  In 
our  judgment  the  effect  would  be  to  convert  that  which  during  war  is 
a  disability,  imposed  upon  the  alien  enemy  because  of  his  hostile  char- 


Ch.  4)       ALIEN  ENEMIES  BEFORE  COURTS  OF  JUSTICE  573 

acter,  into  a  relief  to  him  during  war  from  the  discharge  of  his  ha- 
biHties  to  British  subjects.  It  is  very  noteworthy  that  when  deahng  with 
the  rights  of  ahen  enemies  there  is  no  shadow  of  doubt  suggested  in 
the  books  as  to  the  right  to  sue  ahen  enemies.  More  often  there  is  no 
mention  of  it,  but  sometimes  it  is  the  subject  of  express  reference  and 
then  always  to  the  same  effect,  that  the  alien  enemy  can  be  sued  during 
the  progress  of  hostilities.  Bacon's  Abridgment  (7th  Ed.)  vol.  1,  p.  183, 
asserts  this  liability  of  the  alien  enemy  without  doubt  or  hesitation. 
"The  plea  of  'alien  enemy'  is  a  bar  to  a  bill  for  relief  in  equity  as  well 
as  to  an  action  at  law,  but  it  would  seem  not  sustainable  to  a  mere  bill 
for  discovery  for  as  an  alien  enemy  may  be  sued  at  law  and  may  have 
process  to  compel  the  appearance  of  his  witnesses  so  he  may  have  the 
benefit  of  a  discovery."  This  is  an  important  passage  in  other  respects 
also,  and  in  our  judgment  it  is  a  correct  statement  of  the  law.     *     *     * 

The  Supreme  Court  of  the  United  States  had  to  consider  the  posi- 
tion of  an  alien  enemy  defendant  in  McVeigh  v.  United  States,  11 
Wall.  259,  20  L.  Ed.  80.  The  United  States  under  a  statute  then  in 
force  filed  a  libel  of  information  in  the  District  Court  of  Virginia  for 
the  forfeiture  of  certain  real  and  personal  property  of  McVeigh  on 
the  ground  that  he  was  "a  resident  of  the  city  of  Richmond  within  the 
Confederate  lines  and  a  rebel."  McVeigh  appeared  by  counsel  and 
filed  a  claim  to  the  property  and  an  answer.  The  attorney  of  the  United 
States  moved  that  the  claim  and  answer  and  appearance  be  stricken 
from  the  files,  and  the  court  granted  the  motion  and  the  decree  was 
made  for  forfeiture  of  the  property.  The  case  eventually  was  brought 
to  the  Supreme  Court  on  writ  of  error.  Swayne,  J.,  in  delivering  the 
judgment  of  the  court,  said:  "The  order  in  effect  denied  the  respond- 
ent a  hearing.  It  is  alleged  he  was  in  the  position  of  an  alien  enemy 
and  hence  could  have  no  locus  standi  in  that  forum.  If  assailed  there, 
he  could  defend  there.  The  liability  and  the  right  are  inseparable.  A 
different  result  would  be  a  blot  upon  our  jurisprudence  and  civiliza- 
tion. *  *  *  Whether  the  legal  status  of  the  plaintiff  in  error  was 
or  was  not  that  of  an  alien  enemy  is  a  point  not  necessary  to  consider ; 
because,  apart  from  the  views  we  have  expressed,  conceding  the  fact 
to  be  so,  the  consequences  assumed  would  by  no  means  follow.  What- 
ever may  be  the  extent  of  the  disability  of  an  alien  enemy  to  sue  in 
the  courts  of  the  hostile  country,  it  is  clear  that  he  is  liable  to  be  sued, 
and  this  carries  with  it  the  right  to  use  all  the  means  and  appliances 
of  defence."  The  learned  judge  relied  upon  the  above-mentioned  pas- 
sage in  Bacon's  Abridgment  as  an  authority  for  this  proposition,  and 
the  Supreme  Court  acted  upon  it  by  reversing  the  judgment  of  the 
District  Court  and  of  the  Circuit  Court. 

Although  there  is  ho  case  in  English  law  which  has  directly  decided 
that  an  alien  enemy  can  be  sued  in  our  courts  until  the  recent  decision 
of  Bailhache,  J.,  it  is  instructive  to  glance  at  cases  dealing  with  for- 


574  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   WAR         (Part  3 

feiture  of  civil  rights  resulting  from  some  act  of  misconduct.  The 
traitor,  the  felon,  the  outlaw,  and  the  excommunicated  person  were 
under  civil  disabilities.  They  were  held  by  their  misconduct  to  have 
wiped  out  and  obliterated  the  original  traces  of  their  character  as  citi- 
zens (see  Walford,  p.  647).  Such  misconduct  generally  speaking  car- 
ried the  same  denial  of  the  rights  to  sue  in  the  courts  as  attached 
to  an  alien  enemy.  In  Noy's  Reports  (Noy  was  Attorney  General  to 
Charles  I)  this  judicial  observation  occurs  in  Hastings  v.  Blake,  Noy, 
1 :  "Men  attaint  or  outlawed  shall  be  put  to  answer  in  any  action 
against  them  because  it  is  to  their  prejudice:  but  in  an  action  brought 
by  them  they  shall  not  be  answered  because  it  is  to  their  benefit.''  In 
Ram.sden  v.  Macdonald,  1  Wils.  217,  Lee,  C.  J.,  said:  "There  is  no 
doubt  but  a  person  attainted  may  be  sued."  These  are  not  direct  au- 
thorities to  support  the  proposition  now  under  discussion  with  refer- 
ence to  alien  enemies,  but  they  are  instances  to  show  that  there  is  no 
reason  in  principle  why  a  person  attainted  or  outlawed  should  not  be 
sued.     *     *     * 

Once  the  conclusion  is  reached  that  the  alien  enemy  can  be  sued,  it 
follows  that  he  can  appear  and  be  heard  in  his  defence  and  may  take 
all  such  steps  as  may  be  deemed  necessary  for  the  proper  presentment 
of  his  defence.  If  he  is  brought  at  the  suit  of  a  party  before  a  court^ 
of  justice  he  must  have  the  right  of  submitting  his  answer  to  the  court. 
To  deny  him  that  right  would  be  to  deny  him  justice  and  would  be 
quite  contrary  to  the  basic  principles  guiding  the  king's  courts  in  the 
administration  of  justice. 

Equally  it  seems  to  result  that,  when  sued,  if  judgment  proceed 
against  him,  the  appellate  courts  are  as  much  open  to  him  as  to  any 
other  defendant.  It  is  true  that  he  is  the  person  who  may  be  said  in 
one  sense  to  initiate  the  proceedings  in  the  appellate  court  by  giving 
the  notice  of  appeal,  which  is  the  first  necessary  step  to  bring  the  case 
before  that  court;  but  he  is  entitled  to  have  his  case  decided  accord- 
ing to  law,  and  if  the  judge  in  one  of  the  king's  courts  has  erroneously 
adjudicated  upon  it  he  is  entitled  to  have  recourse  to  another  and  an 
appellate  court  to  have  the  error  rectified.  Once  he  is  cited  to  appear 
he  is  entitled  to  the  same  opportunities  of  challenging  the  correctness 
of  the  decision  of' the  judge  of  first  instance  or  other  tribunal  as  any 
other  defendant.  The  decision  in  McVeigh  v.  United  States,  11  Wall. 
259,  20  L.  Ed.  80,  in  the  Supreme  Court  of  the  United  States  is  to 
the  same  effect.  In  that  case  the  defendant,  who  was  appellant  in  the 
circumstances  already  stated,  brought  writ  of  error  in  respect  of  the 
judgment  of  the  District  and  Circuit  Courts  and  succeeded  in  reversing 
the  judgments  of  those  courts. 

We  must  now  consider  whether  the  same  conclusion  is  reached  in 
reference  to  appeals  by  an  alien  enemy  plaintiff,  that  is,  a  person  who 
before  the  outbreak  of  war  was  a  plaintiff  in  a  suit  and  then  by  virtue 


Ch.  4)  ALIEN   ENEMIES   BEFORE   COURTS   OF  JUSTICE  575 

of  his  residence  or  place  of  business  became  an  alien  enemy.  As  we 
have  seen,  he  could  not  proceed  with  his  action  during  the  war.  If 
judgment  had  been  pronounced  against  him  before  the  war  in  an  ac- 
tion in  which  he  was  plaintiff,  can  he  present  an  appeal  to  the  appel- 
late courts  of  the  King?  We  cannot  see  any  distinction  in  principle 
between  the  case  of  an  alien  enemy  seeking  the  assistance  of  the  king 
to  enforce  a  civil  right  in  a  court  of  first  instance  and  an  ahen  enemy- 
seeking  to  enforce  such  right  by  recourse  to  the  appellate  courts.  He 
is  in  either  case  seeking  to  enforce  his  right  by  invoking  the  assistance 
of  the  king  in  his  courts.  He  is  the  "actor"  throughout.  He  is  not 
brought  to  the  courts  at  the  suit  of  another ;  it  is  he  who  invokes  their 
assistance;  and  it  matters  not  for  this  purpose  that  a  judgment  has 
been  pronounced  against  him  before  the  war.  When  once  hostilities 
have  commenced  he  cannot,  so  long  as  they  continue,  be  heard  in  any 
suit  or  proceeding  in  which  he  is  the  person  first  setting  the  courts  in 
motion.  If  he  had  given  notice  of  appeal  before  the  war,  the  hear- 
ing of  his  appeal  must  be  suspended  until  after  the  restoration  of 
peace. 

Having  now  dealt  with  general  principles,  we  proceed  to  consider 
their  application  to  the  three  appeals  before  us.  The  plaintiff  in  the 
first  appeal  issued  a  writ  against  one  Philip  Freudenberg.  *  *  * 
The  plaintiff  having  issued  his  writ  applied  to  Scrutton,  J.,  for  direc- 
tions as  to  the  manner  of  serving  it  upon  the  defendant  in  Berlin. 
The  learned  judge  gave  liberty  to  the  plaintiff  to  issue  a  concurrent  writ 
against  the  defendant  and  to  serve  notice  of  the  writ  in  Berlin.  In  view 
"of  the  difficulty  of  serving  the  notice  of  writ  on  the  defendant,  Mr. 
Fitch,  on  behalf  of  the  plaintiff,  asked  this  court  to  make  an  order  for 
substituted  service  of  the  notice  of  writ  by  allowing  service  of  it  upon 
Barnes  or  otherwise  as  the  court  might  direct.     *     *     * 

Unless  an  order  for  substituted  service  in  this  country  of  a  notice 
of  writ  for  service  out  of  the  jurisdiction  can  be  made  in  a  proper 
case,  great  hardship  may  be  inflicted  upon  persons  who  are  subjects  of 
and  resident  in  this  country  who  have  given  credit  or  entered  into 
contractual  relations  with  or  have  claims  against  persons  who  are  now 
alien  enemies,  to  the  manifest  advantage  of  the  alien  enemies  and  dis- 
advantage of  British  subjects  and  subjects  of  other  States  who  wish 
to  sue  in  this  country.  This  court  whilst  bearing  this  consideration 
in  mind  must  also  take  into  account  the  position  of  the  defendant  the 
alien  enemy,  who  is,  according  to  the  fundamental  principles  of  Eng- 
lish law,  entitled  to  effective  notice  of  the  proceedings  against  him. 
It  is  obvious  that  in  all  cases  against  the  alien  enemy  the  plaintiff  will 

seek,  if  possible,  an  order  to  make  substituted  service  in  this  country. 
*     *     * 

Upon  the  materials  now  before  us  we  think  service  of  the  notice 
should  be  effected  in  the  one  case  by  substituted  service  upon  Barnes 
and  in  the  other  upon  Bonome,  and  such  further  terms  should  be  im- 


576  RIGHTS   AND   DUTIES   OP   NATIONS   IN  TIME   OF   WAR         (Part  3 

posed  in  chambers  upon  the  plaintiff  as  to  advertisement  or  other 
means  of  communication  and  as  to  the  period  to  be  given  to  the  de- 
fendant for  appearance  as  may  seem  proper.     *     *     * 

This  is  the  judgment  of  the  court. 

Order  varied  in  Porter  v.  Freudenberg.     *     *     *  ® 


McVEIGH  V.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1870.     11  Wall.  259.  20  L.  E<i.  80.) 

Error  to  the  Circuit  Court  for  the  District  of  Virginia. 

On  the  17th  of  July,  1862,  Congress  passed  an  act,  entitled  "An  act 
to  suppress  insurrection,  to  punish  treason  and  rebellion,  to  seize  and 
confiscate  the  property  of  rebels,  and  for  other  purposes."  This  act 
provided  for  the  seizure  and  confiscation  of  the  property  of  persons 
holding  certain  offices  or  agencies  under  "the  Confederate  States,"  and 
of  persons  engaged  in  the  rebellion  then  existing,  or  aiding  or  abet- 

5  In  Johnstone  v.  Pedlar,  [1921]  2  A.  C.  262,  28.3-284  (1921),  Lord  Atkinson 
thus  contrasted  the  status  of  the  alien  enemy  and  of  the  alien  friend: 

"By  the  common  law  of  this  country  an  alien  enemy  has  no  rights.  He 
could  be  seized  or  imprisoned  and  could  have  no  advantage  from  the  laws 
of  this  country.  He  could  not  obtain  redress  for  any  wrong  done  to  him  in 
this  country.  Sylvester's  Case,  7  Mod.  150  (1702).  The  crown  may  no  doubt 
grant  a  licence  to  an  alien  enemy  to  reside  in  this  country,  which  imports  a 
licence  to  trade  here,  but  in  the  absence  of  such  a  licence  the  property  of 
an  alien  enemy  may  be  seized  for  the  use  of  the  Crown.  The  Johanna  Emilie, 
2  Eng.  P.  C.  252  (1854).  But  while  in  this  country  with  a  licence  any  alien- 
enemy  may  bring  an  action.  Wells  v.  Williams,  1  Ld.  Raym.  282  (1697) ; 
Janson  v.  Driefontein  Mines,  [1902]  A.  C.  484,  506.  A  mere  non-interference 
with  an  alien  enemy  does  not  imply  a  licence  to  reside  and  trade.  It  is  nec- 
essary for  him  to  show  that  he  resides  in  this  country  with  the  full  knowl- 
edge and  sanction  of  the  government.  Boulton  v.  Dobree,  2  Camp.  163  (ISOS). 
Aliens,  whether  friendly  or  enemy,  can  be  lawfully  prevented  from  entering 
this  country  and  can  be  expelled  from  it.  1  Blackstone,  259;  Attorney  Gen- 
eral for  Canada  v.  Cain,  [1906]  A.  C.  542.  And  at  any  time  the  Crown  may 
revoke  its  licence  expressed  or  implied  to  an  alien  to  reside.  The  Hoop,  1 
C.  Rob.  196,  199  (1799).  In  Vattel,  book  2,  §  108,  it  is  stated  that  a  friendly 
alien  can  at  any  time  leave  the  country,  the  government  have  no  right  to  de- 
tain him,  except  for  a  time  and  for  very  particular  reasons,  as,  for  instance, 
the  apprehension  in  war,  lest  such  foreigners  acquainted  with  the  state  of 
the  country  and  of  the  fortified  places  should  communicate  knowledge  to  the 
enemy. 

"A  friendly  alien  resident  in  this  country  can  undoubtedly  be  prosecuted 
for  high  treason  (De  Jager  v.  Attorney  General  of  Natal,  [1907]  A.  C.  326), 
because  it  can  then  be  averred  that  he  acted  contra  ligentise  suae  debitum 
(Calvin's   Case,  7  Rep.  6b  [1608]). 

"For  the  same  reason  an  alien  enemy  can  be  prosecuted,  for  high  treason 
if  he  has  accepted  the  protection  of  the  sovereign,  but  not  otherwise.  Fos- 
ter, 185. 

"I  cannot  find  any  authority  for  the  proposition  that  if  the  property  of  a 
friendly  alien  resident  in  this  country  under  the  protection  of  the  crown 
and  not  violating  in  any  way  the  allegiance  he  owes  to  the  crown  which  pro- 
tects him  be  seized  and  detained  by  an  act  of  state  of  the  sovereign  authori- 
ty the  alien  cannot  sue  the  officer  of  the  crown  by  whose  act  he  is  aggrieved 
in  one  of  the  municipal  courts  of  the  country." 


Ch.  4)  ALIEN   ENEMIES   BEFORE  COURTS  OF  JUSTICE  57? 

ting  such  rebellion,  who  should  not  cease  to  aid,  countenance,  and 
abet  such  rebellion  within  sixty  days  after  public  warning  and  proc- 
lamation by  the  President,  and  return  to  their  allegiance  to  the  United 
States.  The  act  contains  numerous  sections.  They  are  set  forth  with 
fullness  in  a  case  which  was  decided  soon  after  this  one,  and  which  is 
reported  next  to  it,  Miller  v.  United  States  [(1870)  11  Wall.  268,  20  L. 
Ed.  135],  the  leading  case  on  the  Confiscation  Acts,  and  in  which, 
rather  than  in  this  one,  where  the  main  subjects  were  hardly  reached, 
the  provisions  of  the  statute  are  inserted.     *     *     * 

With  this  statute  in  force  the  United  States  filed  a  libel  of  informa- 
tion in  the  District  Court  for  the  District  of  Virginia,  for  the  forfeiture 
of  certain  real  and  personal  property  of  one  William  McVeigh,  situ- 
ated in  Virginia.  The  information  was  in  form  against  "all  the  right, 
title,  and  estate  of  William  McVeigh  in  and  to  all  that  certain  piece, 
parcel,  or  lot  of  land,"  etc.,  describing  it  particularly. 

The  libel  alleged  that  subsequent  to  July  17,  1862,  the  said  McVeigh 
held  and  exercised  an  office  and  agency  of  honor,  and  trust,  and  profit, 
under  the  government  of  the  Confederate  States,,  and  under  one  of  the 
states  of  said  Confederacy  and  that  he  accepted  the  appointment,  and 
was  elected  to  the  office  and  agency  after  the  date  of  the  ordinance  of 
secession  of  said  state ;  and  that  he  took  an  oath  of  allegiance  to  and 
to  support  the  constitution  of  the  Confederate  States;  and  that  since 
July,  1862,  he  had  assisted  and  given  aid  and  comfort  to  the  rebellion, 
and  to  those  engaged  in  the  rebellion,  by  acting  on  the  18th  of  July, 
1862,  and  at  various  times  subsequently  as  a  soldier,  and  as  an  offi- 
cer, and  as  a  non-commissioned  officer  in  the  army  and  navy  of  the 
Confederate  States;  and  by  contributing  money  and  property  to  the 
aid  and  encouragement  of  those  engaged  in  the  rebellion.  The  libel  was 
afterwards  amended  so  as  to  charge,  in  addition  to  the  above  offences, 
that  McVeigh,  on  the  18th  of  July,  1862,  was  engaged  in  armed  rebellion 
against  the  government  of  the  United  States,  and  notwithstanding  the 
President,  on  the  25th  of  July,  1862,  issued  his  proclamation  warning 
all  persons  thus  engaged  to  cease  participating  in  aiding,  countenanc- 
ing, and  abetting  such  rebellion,  the  said  McVeigh  did  not  within  sixty 
days  thereafter  cease  to  aid,  countenance,  and  abet  such  rebellion,  and 
return  to  his  allegiance  to  the  United  States. 

McVeigh  appeared  by  counsel,  made  a  claim  to  the  property,  and 
filed  an  answer.  This  answer  was  not  contained  in  the  record,  and 
nothing  of  its  contents  appeared  except  what  was  stated  in  the  order 
of  the  court  made  on  the  motion  of  the  attorney  of  the  United 
States. 

The  attorney  of  the  United  States,  however,  moved  that  the  claim, 
answer,  and  appearance  be  stricken  form  the  files,  as  it  appeared  from 
the  answer  filed,  that  at  the  time  of  filing  it  the  party  wa's  "a  resident 
of  the  city  of  Richmond,  within  the  Confederate  lines,  and  a  rebel." 
The  court  granted  the  motion.  Subsequently  the  default  of  all  persons 
Scott  Int. Law — 37 


578  RIGHTS   AKD   DUTIES   OF   NATIONS   IX   TIME   OF   WAR         (Part  3 

was  taken,  and  a  decree  was  rendered  for  the  condemnation  and  sale 
of  the  propert}'.  The  case  was  carried  to  the  Circuit  Court,  and  there 
the  decree  was  affirmed.    It  was  now  brought  here  on  writ  of  error.® 

Mr.  Justice  Swaynk  deHvered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Circuit  Court  of  the  United  States  for 
the  District  of  A^irginia. 

The  defendants  in  error  filed  in  the  District  Court  of  the  United 
States  for  that  district  a  Hbel  of  information,  under  the  act  of  July 
17,  1862,  to  reach,  for  the  purposes  of  forfeiture  and  sale,  certain 
real  and  personal  propert}'  of  ^IcVeigh,  a  description  of  which  is  fully 
set  forth.  The  original  libel  was  the  same,  mutatis  mutandis,  as  that 
in  the  case  of  Garnett,  claimant  of  certain  real  estate,  against  the 
United  States.'  An  amendment  was  subsequently  made,  whereby  a 
farther  charge  was  alleged  of  the  offence  defined  in  the  sixth  section 
of  the  act.  The  plaintiff  in  error  appeared  by  counsel,  interposed  a 
claim  to  the  property,  and  filed  an  answer.  The  attorney  of  the  United 
States  submitted  a  motion,  that  the  appearance,  answer,  and  claim 
should  be  stricken  from  the  files,  for  the  reasons  that  the  respondent 
was  "a  resident  of  the  city  of  Richmond,  within  the  Confederate  lines, 
and  a  rebel."  An  order  was  made  according  to  tlie  motion.  Subse- 
quently a  decree  pro  confesso  was  taken.  The  property  was  condemned 
as  forfeited,  and  ordered  to  be  sold.  The  Circuit  Court  upon  error 
affirmed  the  decree,  and  the  case  is  now  before  us  for  review. 

It  is  objected  that  Mc\"eigh  was  incompetent  to  sue  out  this  writ 
of  error.  His  alleged  criminality  lies  at  the  foundation  of  the  proceed- 
ing. It  was  averred  in  the  libel  that  he  was  the  owner  of  the  prop- 
erty described,  and  that  he  was  guilty  of  the  offences  charged,  which 
rendered  it  Hable  to  forfeiture.  The  questions  of  his  guilt  and  owner- 
ship were  therefore  fundamental  in  the  case.  The  notice  by  publication 
was  given  to  bring  him  constructively  before  the  court.  It  was  in  the 
nature  of  the  substituted  service  of  process.  If  he  failed  to  appear, 
his  absence  and  silence  could  not  affect  the  validity  of  the  proceed- 
ings. After  the  decree,  pro  confesso,  he  occupied  the  same  relation 
to  the  record  as  a  defendant  against  whom  a  judgment  by  default  has 
been  taken.  The  case  is  wholly  unlike  a  proceeding  purely  in  rem, 
where  no  claimant  is  named,  and  none  appears  until  after  the  final 
decree  or  judgment  is  entered,  and  the  case  has  terminated.  We  en- 
tertain no  doubt  that  the  plaintiff  in  error  had  the  right  to  sue  out  the 
writ,  and  that  the  record  is  properly  before  us  for  examination. 

In  our  judgment  the  District  Court  committed  a  serious  error  in 
ordering  the  claim  and  answer  of  the  respondent  to  be  stricken  from 
the  files.     As  we  are  unanimous  in  this  conclusion,  our  opinion  will 

6  The  statement  of  facts  is  abridged. 

T  See  Garnett  v.  United  States,  11  Wall.  256,  20  L.  Ed.  79  (1870). 

Scott  Int.Law 


Ch.  4)        ALIEN  ENEMIES  BEFORE  COURTS  OF  JUSTICE  579 

be  confined  to  that  subject.  The  order  in  effect  denied  the  respondent 
a  hearing.  It  is  alleged  that  he  was  in  the  position  of  an  alien  enemy, 
and  hence  could  have  no  locus  standi  in  that  forum.  If  assailed  there, 
he  could  defend  there.  The  liability  and  the  right  are  inseparable.  A 
different  result  would  be  a  blot  upon  our  jurisprudence  and  civiliza- 
tion. We  cannot  hesitate  or  doubt  on  the  subject.  It  would  be  con- 
trary to  the  first  principles  of  the  social  compact  and  of  the  right  ad- 
ministration of  justice.* 

Whether  the  legal  status  of  the  plaintiff  in  error  was,  or  was  not, 
that  of  an  alien  enemy,  is  a  point  not  necessary  to  be  considered ;  be- 
cause, apart  from  the  views  we  have  expressed,  conceding  the  fact 
to  be  so,  the  consequences  assumed  would  by  no  means  follow.  What- 
ever may  be  the  extent  of  the  disability  of  an  alien  enemy  to  sue  in  the 
courts  of  the  hostile  country,^  it  is  clear  that  he  is  liable  to  be  sued, 
and  this  carries  with  it  the  right  to  use  all  the  means  and  appliances 
of  defence.  In  Bacon's  Abridgment,^®  it  is  said:  "For  as  an  alien 
may  be  sued  at  law,  and  may  have  process  to  compel  the  appearance 
of  his  witnesses,  so  he  may  have  the  benefit  of  a  discovery." 

The  judgment  of  the  District  Court  is  reversed,  and  the  cause  will 
be  remanded  to  the  Circuit  Court  with  directions  to  proceed  in  it  in 
conformity  to  law.^^ 

8  Calder  v.  Bull.  3  Dall.  388,  1  L.  Ed.  648  (1798) ;  Bonaker  v.  Evans,  16 
Adol.  &  E.  (N.  S.)  170  (1850) ;  Capel  v.  Child,  2  Cromp.  &  J.  574  (1832) ; 

9  Clarke  v.  IMorey,  10  JohDS.  (N.  Y.)  69  (1813) ;  Russel  v.  Skipwith,  6  Biu. 
(Pa.)  241  (1814) ; 

10  Title  Alien,  D.  See  also  Story's  Equity  Pleadings,  section  53;  Albrecht 
V.  Sussmann.  2  Ves.  &  B.  323  (1813) ;  Dorsey  v.  Kyle  et  al.,  30  Md.  512,  522, 
96  Am.  Dec.  617  (1869). 

11  See  Washington  University  v.  Finch,  18  Wall.  106,  21  L.  Ed.  818  (1873), 
citing  with  approval  the  principal  case,  and  De  Jarnette  v.  De  Giverville,  56 
Mo.  440  (1874). 

See,  also,  Clarke  v.  Morey.  10  Johns.  (X.  Y.)  69,  70,  74,  75  (1813),  in  which 
Kent,  C.  J.,  reviewed  the  English  authorities,  and  held,  according  to  the  head- 
note,  that: 

"Aliens,  resident  in  the  United  States  at  the  time  of  war  breaking  out 
between  their  own  cormtry  and  the  United  States,  or  who  come  to  reside  in 
the  United  States, after  the  breaking  out  of  such  war,  under  an  express  or 
implied  periTrtS5ibn,  may  sue  and  he  sued,  as  in  time  of  peace :  and  it  is  not 
necessary,  for  that  purpose,  that  such  aliens  should  have  letters  of  safe 
conduct,  or  actual  license  to  remain  in  the  United  States,  but  a  license  and 
protection  will  be  implied,  from  their  being  suffered  to  remain,  without  be- 
ing ordered  out  of  the  United  States  by  the  executive." 

Chief  Justice  Kent  concluded  his  opinion  as  follows: 

"The  case  before  us  does  not  raise  the  question,  nor  do  we  give  any  opin- 
ion in  favor  of  the  right  of  action  by  aliens  who  resided  in  the  enemy's  coun- 
try when  war  was  declared,  and^when  the  action  was  commenced.  The  cases 
appear  to  be  against  such  right.  But  as  to  aliens  who  were  residents  -u-ith 
us  when  the  war  broke  out,  or  who  have  since  come  to  reside  here,  by  a  pre- 
sumed permission,  the  authorities  seem  to  be  decisive.  And  whether  we 
consider  this  case  in  reference  to  the  decisions  of  the  English  courts,  to  the 
act  of  Congress,  or  to  the  sense  of  European  nations,  declared  in  their  trea- 
ties, and  by  their  writers  on  public  law,  the  plea  must  be  overruled ;  and  the 
plaintiff  is  entitled  to  judgment,  upon  his  demurrer." 


580  EIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAE         (Pait  3 

CHAPTER  V 

AGENTS  IN  ENEMY  TERRITORY 


CONN  et  al.  v.  PENN  et  al. 

(Circuit  Ck)urt  of  the  TJnited  States,  D.  Pennsylvania,  1818.     Pet.  C.  C.  496, 

Fed.  Cas.   No.   3,104.) 

The  plaintiffs  filed  their  bill  in  equity  to  obtain  conveyances  from 
John  and  William  Penn,  of  certain  tracts  which  they  were  supposed 
to  hold  as  tenants  in  common,  as  descendants  of  WiUiam  Penn,  the 
original  proprietary  of  Pennsylvania,  and  to  which  the  plaintiffs  as- 
serted an  equitable  title,  based  upon  contracts  of  purchase  from  the 
proprietaries  before  the  Revolution. 

The  bill  prayed  conveyance  of  the  legal  title,  on  the  payment  of  so 
much  money  as  was  still  due,  on  certain  principles  upon  which  they  al- 
leged their  equitable  title  to  have  been  acquired. 

It  was  referred  to  commissioners  to  ascertain  the  amount  of  these 
sums.  The  plaintiffs  insisted  that  interest  should  not  run  upon  these 
sums;   the  defendants  insisted  that  interest  should  be  included. 

Washington,  Circuit  Justice.^  *  *  *  'pj^g  second  claim  is  of 
an  abatement  of  interest  during  the  Revolutionary  and  late  war.  This 
question  has  never  been  decided,  it  is  believed,  in  the  Supreme  Court  of 
the  United  States.  We  know  not  what  have  been  the  decisions  in  the 
different  Circuit  Courts,  and  in  the  state  courts,  not  having  access  to 
any  of  the  ordinary  means  of  information,  except  such  as  the  Penn- 
sylvania and  Virginia  Reports  furnish.  In  those  states,  the  law  seems 
to  be  settled,  that  where  the  creditor  was  absent  during  the  war,  and 
had  no  known  agent  within  the  United  States,  interest,  during  the  war, 
should  be  deducted.  It  would  appear,  from  the  justly  celebrated  an- 
swer of  Mr.  Jefferson  to  Mr.  Hammond,  that  interest  during  the  war 
had  been  disallowed  in  some  of  the  state  courts,  and  allowed  in  others. 
This  court,  finding  itself  unshackled  by  authorities,  is  left  to  form  its 
opinion  of  this  question  upon  general  principles,  and  we  feel  no  hesita- 
tion in  deciding,  that  the  mere  circumstance  of  war  existing  between 
two  nations,  is  not  a  sufficient  reason,  for  abating  interest  upon  the  debts 
due  by  the  subjects  of  the  one  belligerent  to  those  of  the  other.  It 
is  admitted,  that  wars  in  their  mildest  form  are  productive  of  great 
national  calamity  to  both  belligerents,  afid  especially  to  that  one  which 
happens  to  be  invaded.  If  this  were  per  se,  a  reason  for  abating  inter- 
est, it  would  operate  with  equal  force,  whether  the  creditor  were  a 
fellow  citizen  of  the  debtor,  an  enemy,  or  the  subject  of  a  foreign 
friendly  government. 

1  Part  of  the  opinion  is  omitted. 


Ch.  5)  AGENTS   IN   ENEMY   TERRITORY  581 

A  prohibition  of  all  intercourse  with  an  enemy,  during  the  war,  and 
the  legal  consequence  resulting  therefrom,  as  it  respects  debtors  on 
either  side,  furnish  a  sound,  if  not  in  all  instances,  a  just  reason  for 
the  abatement  of  interest,  until  the  return  of  peace.  As  a  general  rule, 
it  may  safely  be  laid  down,  that  wherever  the  law  prohibits  the  pay- 
ment of  the  principal,  interest  during  the  existence  of  the  prohibition 
is  not  demandable;  and  no  reason  is  perceived,  why  the  rule  should  not 
be  the  same  in  courts  of  equity,  as  in  courts  of  law.  But,  the  rule  can 
never  apply  in  cases  where  the  creditor,  although  a  subject  of  the  en- 
emy, remains  in  the  country  of  the  debtor,  or  has  a  known  agent 
there,  authorised  to  receive  the  debt ;  because  the  payment  to  such 
creditor  or  his  agent,  could  in  no  respect  be  construed  into  a  violation 
of  the  duties  imposed  by  a  state  of  war,  upon  the  debtor.  The  pay- 
ment in  such  cases  is  not  made  to  an  enemy,  and  it  is  no  objection, 
that  the  agent  may  possibly  remit  the  money  to  his  principal;  if  he 
should  do  so,  the  offence  is  imputable  to  him,  and  not  to  the  person 
paying  him  the  money.  As  the  evidence  upon  the  point  to  which  the 
exception  to  the  general  rule  applies,  was  not  as  full  as  it  ought  to 
have  been,  and  possibly  is  susceptible  of  being  made,  the  parties  on 
each  side  will  have  an  opportunity  before  the  auditor,  to  produce  evi- 
dence to  show,  whether  during  the  Revolutionary  and  the  late  war,  or 
for  any  and  what  part  thereof,  the  proprietaries  had  in  the  United 
States,  a  known  agent,  or  agents,  authorised  to  receive  the  purchase 
money  and  quit  rents,  due  to  them  from  the  complainants. 

The  court,  in  giving  the  above  opinion,  has  taken  no  notice  of  the 
agreements  of  compromise,  offered  by  the  defendants  to  the  complain- 
ants in  1804,  because  then,  and  even  at  the  hearing  of  the  cause,  it  was 
rejected.     *     *     *2 

2  Upon  a  reconsideration  of  this  case,  in  1824,  in  Conn  et  al.  v.  Penn.  4  Wash. 
C.  G.  430,  Fed.  Gas.  No.  3,105,  Mr.  Justice  Washington  thus  restated  his 
views  in  the  matter  of  interest: 

"As  to  abatement  of  interest  on  account  of  the  inroads  of  the  borderers 
claiming  under  Maryland,  and  the  Revolutionary  and  late  war  with  Great 
Britain,  the  court  has  nothing  to  add  to  the  opiuion  formerly  given  on  this 
point.  In  the  former  decree,  the  court  referred  it  to  the  master  to  report, 
whether  the  defendants  had,  or  had  not  a  known  agent  iu  this  country,  au- 
thorised to  receive  the  moneys  due  to  them  by  the  plaintiffs,  or  those  under 
whom  they  claim,  either  for  the  whole,  or  any  part  of  the  period  of  the 
Revolutionarj',  or  late  war  with  Great  Britain.  The  report  made  under  this 
order  is,  that,  during  the  whole  period  of  five  wars,  the  defendants  had  a 
known  agent  in  the  state  of  Pennsylvania,  authorized  to  receive  all  moneys 
due  to  them  by  the  complainants,  and  those  under  whom  they  claim,  as  well 
as  by  all  other  persons.  In  consequence  of  this  report,  the  plaintiffs'  counsel 
have  declined  arguing  this  point,  and  submitted  it  to  the  court.  We  are 
clearly  of  opinion  that  no  abatement  of  interest  ought  to  be  allowed." 

The  principal  case  is  considered  to  be  the  first  and  the  leading  case  on 
this  subject,  and  has  been  both  quoted  and  cited  with  approval  by  the  Su- 
preme Gourt  of  the  United  States  in  Ward  v.  Smith,  7  Wall.  447,  453.  19  L. 
Ed  207  (1868)  ;  Brown  v.  Hiatts,  15  Wall.  177,  186,  21  L.  Ed.  128  (1872) ; 
New  York  Life  Ins.  Co.  v.  Davis,  95  U.  S.  425,  429,  24  L.  Ed.  453  (1877). 

See  Buchanan  v.  Curry,  19  Johns.  137,  142,  10  Am.  Dec.  200  (1821),  and 
Mous.seaux  v.  Urquhart,  19  La.  Ann.  482,  486  (1867),  citing  and  relying  upon 
the  principal  case. 


582  RIGHTS  AND  DUTIES  OP  NATIONS  IN  TIME  OF  WAR         (Part  3 

UNITED  STATES  v.  GROSSMAYER. 

(Supreme  Court  of  the  United  States,  1869.    9  Wall.  72,  19  L.  Ed.  627.) 

Elias  Einstein,  a  resident  of  Macon,  Georgia,  was  indebted,  when 
the  late  rebelHon  broke  out,  to  Grossmayer,  a  resident  of  New  York, 
for  goods  sold  and  money  lent,  and  while  the  war  was  in  progress  a 
correspondence  on  the  subject  was  maintained  through  the  medium 
of  a  third  person,  who  passed  back  and  forth  several  times  between 
Macon  and  New  York.  The  communication  between  the  parties  re- 
sulted in  Grossmayer  requesting  Einstein  to  remit  the  amount  due  him 
in  money  or  sterling  exchange,  or,  if  that  were  not  possible,  to  invest 
the  sum  in  cotton  and  hold  it  for  him  until  the  close  of  the  war. 

In  pursuance  of  this  direction — and,  as  it  is  supposed,  because  money 
or  sterling  exchange  could  not  be  transmitted — Einstein  purchased  cot- 
ton for  Grossmayer,  and  informed  him  of  it ;  Grossmayer  expressing 
himself  satisfied  with  the  arrangement.  The  cotton  was  afterwards 
shipped  as  Grossmayer's  to  one  Abraham  Einstein,  at  Savannah,  who 
stored  it  there  in  his  own  name,  in  order  to  prevent  its  seizure  by  the 
rebel  authorities.  It  remained  in  store  in  this  manner  until  the  cap- 
ture of  Savannah,  in  December,  1.864,  by  the  armies  of  the  United 
States,  when  it  was  reported  to  our  military  forces  as  Grossmayer's 
cotton,  and  taken  by  them  and  sent  to  New  York  and  sold. 

Grossmayer  now  preferred  a  claim  in  the  Court  of  Claims  for  the 
residue  of  the  proceeds,  asserting  that  he  was  within  the  protection 
of  the  Captured  and  Abandoned  Property  Act. 

That  court  considering  that  the  purchase  by  Elias  Einstein  for  Gross- 
mayer was  not  a  violation  of  the  war  intercourse  acts  set  forth  in  the 
preceding  case,  decided  that  he  was  so,  and  gave  judgment  in  his  favor. 
The  United  States  appealed. 

Mr.  George  Taylor,  for  Grossmayer,  and  in  support  of  the  judgment 
below : 

The  cotton,  the  proceeds  of  which  are  in  question,  was  purchased 
during  the  rebellion,  by  an  agent  of  the  claimants,  residing  within  the 
Confederacy,  and  therefore  was  not  a  violation  of  the  Nonintercourse 
Act ;  it  being  a  settled  principle  of  public  law  that  a  citizen  of  a  coun- 
try at  war  with  another  may  have  an  agent  in  the  enemy's  country,  and 
may  enforce  the  contracts  or  accept  the  beneficial  acts  of  his  agent  after 
peace ;  and,  in  this  respect,  he  may  do  by  an  agent  what  he  could  not 
do  himself.^ 

Even  if  the  messages  from  Grossmayer  to  his  agent  were  illegal, 
and  no  authority  were  given  to  the  agent,  yet  the  agent  had  a  right, 
voluntarily  on  his  own  motion,  to  purchase  and  appropriate  this  prop- 

3  Potts  V.  Bell,  8  Term,  548  (1800) ;  Denniston  v.  Imbrle,  .3  Wash.  C.  C. 
396,  Fed.  Cas.  No.  3802  (1818);  Paul  v.  Christie,  4  Har*.  &  McH.  (Md.)  161 
(1798);  Buehauan  v.  Currv,  19  Johns.  (N.  Y.)  137,  10  Am.  Dec.  200  (1821); 
Ward  V.  Smith,  7  Wall.  452,  19  L.  Ed.  207    (1868). 


Ch.  5)  AGENTS   IN   ENEMY   TERRITORY  583 

erty  to  his  creditor,  and  by  the  appropriation  of  it,  and  the  shipment  of 
it  to  Savannah  for  storage  for  him,  the  title  passed,  subject  only  to 
tlie  ratification  of  Grossmayer.* 

The  case  shows  that  the  purchase  was  ratified  by  Grossmayer. 
Claiming  the  cotton,  and  instituting  suit  for  it,  is  itself  a  ratification. 
This  ratification  reverts  back,  and  is  equivalent  to  a  previous  permis- 
sion or  command. 

Mr.  Hoar,  Attorney  General,  and  Mr.  R.  S.  Hale,  special  counsel  for 
the  United  States,  contra. 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

Grossmayer  insists  that  he  is  within  the  protection  of  the  Captured 
and  Abandoned  Property  Act,  but  it  is  hard  to  see  on  what  ground  he 
can  base  this  claim  for  protection.  It  was  natural  that  Grossmayer 
should  desire  to  be  paid,  and  creditable  to  Einstein  to  wish  to  dis- 
charge his  obligation  to  him,  but  the  same  thing  can  be  said  of  very 
many  persons  who  were  similarly  situated  during  the  war,  and  if  all 
persons  in  this  condition  had  been  allowed  to  do  what  was  done  in  this 
case,  it  is  easy  to  see  that  it  would  have  produced  great  embarrassment 
and  obstructed  very  materially  the  operations  of  the  army.  It  has  been 
found  necessary,  as  soon  as  war  is  commenced,  that  business  inter- 
course should  cease  between  the  citizens  of  the  respective  parties  en- 
gaged in  it,  and  this  necessity  is  so  great  that  all  writers  on  public 
law  agree  that  it  is  unlawful,  without  any  express  declaration  of  the 
sovereign  on  the  subject. 

But  Congress  did  not  wish  to  leave  any  one  in  ignorance  of  the  ef- 
fect of  war  in  this  regard,  for  as  early  as  the  13th  of  June,  1861,  it 
passed  a  Nonintercourse  Act,  which  prohibited  all  commercial  inter- 
course between  the  states  in  insurrection  and  the  rest  of  the  United 
States.  It  is  true  the  President  could  allow  a  restricted  trade,  if  he 
thought  proper ;  but  in  so  far  as  he  did  allow  it,  it  had  to  be  conducted 
according  to  regulations  prescribed  by  the  Secretary  of  the  Treasury. 

There  is  no  pretence,  however,  that  this  particular  transaction  was 
authorized  by  any  one  connected  with  the  Treasury  Department,  and 
it  was,  therefore,  not  only  inconsistent  with  the  dtities  growing  out  of 
a  state  of  war,  but  in  open  violation  of  a  statute  on  the  subject.  A 
prohibition  of  all  intercourse  with  an  enemy  during  the  war  affects 
debtors  and  creditors  on  either  side,  equally  with  those  who  do  not 
bear  that  relation  to  each  other.  We  are  not  disposed  to  deny  the  doc- 
trine that  a  resident  in  the  territory  of  one  of  the  belligerents  may  have, 
in  time  of  war,  an  agent  residing  in  the  territory  of  the  other,  to  whom 
his  debtor  could  pay  his  debt  in  money,  or  deliver  to  him  property 
in  discharge  of  it,  but  in  such  a  case  the  agency  must  have  been  cre- 
ated before  the  war  began,  for  there  is  no  power  to  appoint  an  agent 

4  Ogle  V.  Atkinson,  5  Taunt.  759  (1814) ;  Mitehel  v.  Ede,  11  Adol.  &  B.  SS8 
(1840) ;  Fowler  v.  Down.  1  P.os.  &  P.  47  (1797) ;  Wilkes  v.  Ferris.  5  .Johns. 
(N.  Y.)  33.5,  4  Am.  Bee.  304  (IRIO) ;  Ck)it  v.  Houston,  3  Johns.  Cas.  (N.  T.)  243 
(1802)  and  remarks  upon  it  in  Hawley  v.  Foote,  19  Wend.  (N.  Y.)  517  (1838). 


584  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

for  any  purpose  after  hostilities  have  actually  commenced,  and  to  this 
effect  are  all  the  authorities.  The  reason  why  this  cannot  be  done  is 
obvious,  for  while  the  war  lasts  nothing  which  depends  on  commercial 
intercourse  is  permitted.  In  this  case,  if  Einstein  is  to  be  considered 
as  the  agent  of  Grossmayer  to  buy  the  cotton,  the  act  appointing  him 
was  illegal,  because  it  was  done  by  means  of  a  direct  communication 
through  a  messenger  who  was  in  some  manner  not  stated"  in  the  record 
able  to  pass,  during  the  war,  between  Macon  and  New  York.  It  was 
not  necessary  to  make  the  act  unlawful  that  Grossmayer  should  have 
communicated  personally  with  Einstein.  The  business  intercourse 
through  a  middle  man,  which  resulted  in  establishing  the  agency,  is 
equally  within  the  condemnation  of  the  law. 

Besides,  if,  as  is  conceded,  Grossmayer  was  prohibited  from  trad- 
ing directly  with  the  enemy,  how  can  the  purchase  in  question  be  treated 
as  lawful  when  it  was  made  for  him  by  an  agent  appointed  after  his 
own  disability  to  deal  at  all  with  the  insurgents  was  created? 

It  is  argued  that  the  purchase  by  Einstein  was  ratified  by  Grossmayer, 
and  that  being  so  the  case  is  relieved  of  difficulty ;  but  this  is  a  mistaken 
view  of  the  principle  of  ratification,  for  a  transaction  originally  unlaw- 
ful cannot  be  made  any  better  by  being  ratified. 

In  any  aspect  of  this  case,  whether  the  relation  of  debtor  and  cred- 
itor continued,  or  was  changed  to  that  of  principal  and  agent,  the  claim- 
ant cannot  recover. 

As  he  was  prohibited  during  the  war  from  having  any  dealings  with 
Einstein,  it  follows  that  nothing  which  both  or  either  of  them  did  in 
this  case  could  have  the  efi'ect  to  vest  in  him  the  title  to  the  cotton 
in  question. 

Not  being  the  owner  of  the  property  he  has  no  claim  against  the 
United  States. 

The  judgment  of  the  Court  of  Claims  is  reversed,  and  the  cause  is 
remanded  to  that  court  with  directions  to  enter  an  order  dismissing  the 
petition.^ 

5  See  also  Small's  Adm'r  v.  Lumpkin's  Ex'x,  28  Grat.  832,  835,  decided  by 
the  Court  of  Appeals  of  Virginia  in  1877. 

After  stating  the  effect  of  war  upon  intercourse,  Burks,  J.,  said: 

"Limited  agencies  in  the  enemy's  country  may  lawfully  continue,  provided 
they  can  be  and  are  exercised  without  intercourse  or  communication  between 
the  citizens  or  subjects  of  the  contending  powers — such  as  agencies  to  collect 
and  preserve,  but  not  to  transmit  monev  or  propej'ty.  Buchanan  v.  Curry, 
19  Johns.  (N.  T.)  137,  10  Am.  Dec.  200  [1821] ;  Ward  v.  Smith,  7  Wall.  447,  19 
L  Ed.  207  [ISeS] ;  Manhattan  Life  Ins.  Co.  v.  Warwick,  20  Grat.  614,  3  Am. 
Rep.  21.*^,  [1S71];  Hale  v.  Wall,  22  Grat.  424  [1872];  Mutual  Benefit  Life  Ins. 
Co.  V.  Atwood's  Adm'x,  24  Grat.  497,  18  Am.  Rep.  652  [1874] ;  N.  Y,  Life  Ins. 
Co.  V.  Hendren,  24  Grat.  (Va.)  536  [1S74']. 

"Such  agencies,  however,  to  be  lawful,  must,  it  seems,  be  created  before 
the  war  beeins,  for  there  is  no  power  it  is  said  to  appoint  any  agent  for  any 
purpose  after  hostilities  have  actually  commenced,  and  that  to  this, effect 
are  all  lln  authorities.  ITnited  States  v.  Grossmayer,  9  Wall.  72.  19  L.  Ed. 
627  [1S69];  United  States  v.  Lapeue,  17  Wall.  601,  21  L.  Ed.  693  [1873]." 


Ch.  6)  PRIVATE   RIGHTS  AND   CONTRACTS  585 

CHAPTER  VI 
PRIVATE  RIGHTS  AND  CONTRACTS  * 


FURTADO  V.  ROGERS. 

(Court  of  Common  Pleas,  1802.    3  Bos.  &  P.  191.) 

This  was  the  case  of  the  ship  PetronelH,  which  sailed  from  Bayonne 
in  France,  October,  1792,  for  Martinique  insured  in  an  English  com- 
pany, the  poHcy  dating  19th  October,  1792.  The  next  year,  while  the 
ship  was  still  at  Martinique  the  war  between  France  and  England  broke 
out ;  and  the  island  of  Martinique  with  all  the  shipping  in  the  harbors 
was  captured  by  the  English.  After  the  peace  of  Amiens  in  1802,  the 
owner  of  the  ship  brought  suit  in  Common  Pleas  in  England,  to  recover 
the  insurance  on  the  ship.^ 

The  opinion  of  the  court  was  now  delivered  by  Lord  Alvani^^ 
C.J.:  ^— ' 

As  it  is  of  infinite  importance  to  the  parties  that  this  case  should 
be  decided  as  speedily  as  possible,  and  as  we  entertain  no  doubts  upon 
the  subject,  we  think  it  right  to  deliver  the  judgment  of  the  court 
without  any  further  delay ;  at  the  same  time  considering  the  magnitude 
of  the  question,  we  shall  allow  the  parties  to  convert  this  case  into  a 
special  verdict,  in  order  that  the  opinion  of  the  highest  court  in  this 
kingdom  may  be  taken,  if  it  should  be  thought  necessary.  There  are 
two  questions  for  our  consideration:  1st,  whether  it  be  lawful  for  a 
British  subject  to  insure  an  enemy  from  the  efifect  of  capture  made  by 
his  own  government?  2dly,  whether,  if  that  be  illegal,  the  insurance  in 
this  case  having  been  made  previous  to  the  commencement  of  hostilities 
will  make  any  difference?  As  to  the  first  point,  it  has  been  under- 
stood for  some  years  past  to  have  been  the  opinion  of  all  Westminster 
Hall,  and  I  believe  of  the  nation  at  large,  that  such  insurances  are  not 
strictly  legal  or  capable  of  being  enforced  in  a  court  of  justice. 

The  cases  upon  the  subject  are  all  brought  into  a  small  compass  in 
the  two  valuable  books  of  Mr.  Park  and  my  Brother  Marshall.  Mr. 
Park  seems  to  consider  the  cases  of  Brandon  v.  Nesbitt  and  Bristow 
V.  Towers  as  having  decided  the  point ;  ^  but  after  looking  very  ac- 
curately into  all  the  cases,  I  am  ready  to  admit  that  there  is  no  direct 
determination.  The  above  two  cases  proceeded  on  the  short  ground  of 
alienage,  which  was  sufficient  to  support  the  decision  of  the  court 
without  entering  into  the  other  question;    and  I  do  not  think  the  lat- 

1  On  thi^  subject-matter  of  the  present  chapter,  see  Coleman  Phillipson's  "Ef- 
fect of  War  on  Contracts"  (1909) . 

2  A  shortened  statement  has  been  substituted  for  that  of  the  original  report. 
8  See  Park  on  Insurance  pp.  14,  240. 


586  RIGHTS   AND   DUTIES   OP   NATIONS   IN   TIME   OF   WAR         (Patt  3 

ter  words  of  Lord  Kenyon  in  Brandon  v.  Nesbitt,  applied  as  they  are 
to  the  case  of  Ricord  v.  Bettenham,  support  the  inference  which  has 
been  drawn  by  my  Brother  Marshall,  in  his  book,  the  Law  of  Insur- 
ance, pp.  37,  600,  viz.  that  his  Lordship  thought  that  a  policy  effected 
previous  to  the  war  might  be  sued  upon  in  the  event  of  peace,  even 
though  the  loss  sustained  by  the  assured  arose  from  British  capture. 
It  is  well  known  that  for  a  considerable  time,  not  only  some  politicians 
entertained  an  opinion  that  insurances  on  enemy's  property  were  bene- 
ficial, but  that  a  great  Judge  went  so  far  as  to  try  causes  in  which  this 
point  directly  appeared,  and  permitted  foreigners  in  their  own  names, 
and  for  their  own  benefit  during  the  war,  to  recover  oh  policies  of 
insurance  on  foreign  goods  against  British  capture.  The  opinion  of 
that  learned  judge,  as  to  the  policy  of  such  insurances,  is  well  known, 
and  it  was  supposed  he  would  not  have  sanctioned  them  unless  his 
opinion  in  point  of  law  had  been  equally  favorable.  But  we  have  now 
the.  best  evidence^  that  his  sentiments  in  that  respect  were  different 
from  what  they  were  supposed  to  be.  Though  he  did  try  causes  upon 
such  insurances,  he  always  entertained  doubts  upon  the  law,  and  en- 
deavored to  keep  out  of  sight  a  question  which  might  oblige  him  to 
decide  against  what  he  thought  for  the  benefit  of  the  country.  This 
takes  off  materially  from  the  effect  of  those  cases  which  have  been 
cited,  to  induce  a  supposition  that  the  law  of  England  had  tolerated 
such  insurances.  How  far  it  is  consistent  with  good  faith,  after  so  long 
an  acquiescence,  to  set  up  a  defence  which  the  foreiger  may  say  he 
had  no  reason  to  expect,  is  a  question  for  the  decision  of  Defendant 
and  not  that  of  the  court.  We  can  only  say,  that  although  many  per- 
sons have  recovered  in  such  actions  it  is  equally  true  that  doubts  have 
been  entertained  by  many  persons  as  to  their  right  to  recover,  and  that 
most  of  those  who  were  informed  upon  the  subject  were  firmly  per- 
suaded that  the  objection  might  have  been  made  with  success.  This 
affords  a  sufficient  vindication  to  the  courts  of  this  country  in  now  de- 
ciding this  point  against  a  foreigner. 

In  the  year  1748  an  act,  21  Geo.  II,  c.  4,  passed  prohibiting  the  in- 
surance of  French  ships  and  goods  during  the  war ;  this  was  at  least 
a  legislative  declaration  of  the  impolicy  of  such  insurances  at  that  time. 
From  the  expiration  of  that  act  to  the  passing  of  the  33  Geo.  Ill,  c. 
27,  §  4,  no  legislative  interference  upon  the  subject  ever  took  place, 
and  previous  to  the  last  mentioned  act  the  policy  in  question  was  ef- 
fected. By  the  terms  of  the  policy  the  underwriters  certainly  under- 
take to  indemnify  the  plaintiff  against  all  captures  and  detentions  of 
princes,  without  any  exception  in  respect  of  the  acts  of  the  govern- 
ment of  their  own  nation.  The  question  then  is,  whether  the  law 
does  not  make  that  exception,  and  whether  it  be  competent  to  an  Eng- 
lish underwriter  to  indemnify  persons  who  may  be  engaged  in  war 
with  his  own  sovereign  against  the  consequences  of  that  war?     We 

*  See  what  is  said  by  Buller,  J.,  1  Bos.  &  P.  354. 


Ch.  6)  PRIVATE   RIGHTS   AND   CONTRACTS  587 

are  all  of  opinion  that  on  the  principles  of  the  English  law  it  is  not 
competent  to  any  subject  to  enter  into  a  contract  to  do  anything  which 
may  be  detrimental  to  the  interests  of  his  own  country ;  and  that  such 
a  contract  is  as  much  prohibited  as  if  it  had  been  expressly  forbidden 
by  act  of  Parliament.  It  is  admitted  that  if  a  man  contract  to  do  a 
thing  which  is  afterwards  prohibited  by  act  of  parliament,  he  is  not 
bound  by  his  contract.  This  was  expressly  laid  down  in  Brewster  v. 
Kitchell,  1  Salk.  198.  And  on  the  same  principle,  where  hostilities 
commence  between  the  country  of  the  underwriter  and  the  assured,  the 
former  is  forbidden  to  fulfil  his  contract.  With  respect  to  the  expedi- 
ency of  these  insurances,  it  seems  only  necessary  to  cite  a  single  line 
from  Bynkershoek  (Quaest.  Juris.  Pub.  lib.  1,  c.  21 ;  Marshall,  p.  31), 
and  part  of  a  passage  in  Valin  (Marshall,  p.  32).  The  former  says, 
"Hostium  pericula  in  se  suscipere  quid  est  aliud  quam  eorum  commercia 
maritima  promovere,"  and  the  latter,  speaking  of  the  conduct  of  the 
English  during  the  war  of  1756,  who  permitted  these  insurances,  says, 
"The  consequence  was,  that  one  part  of  that  nation  restored  to  us  by 
the  effect  of  insurance,  what  the  other  took  from  us  by  the  rights 
of  war."  Lord  Hardwicke  indeed,  in  Henckle  v.  The  Royal  Exchange 
Assurance  Company,  1  Ves.  320,  uses  these  words :  "No  determina- 
tion has  been  that  insurance  on  enemies'  ships  during  the  war  is  un- 
lawful ;  it  might  be  going  too  far  to  say  all  trading  with  enemies  is  un- 
lawful, for  that  general  doctrine  would  go  a  great  way,  even  where 
only  English  goods  are  exported,  and  none  of  the  enemies'  imported, 
which  may  be  very  beneficial.  I  do  not  go  on  a  foundation  of  that 
kind,  and  there  have  been  several  insurances  of  this  sort  during  the 
war  which  a  determination  upon  that  point  might  hurt."  This  how- 
ever is  but  a  doubtful  opinion  as  to  the  legality  of  suqh  insurances,  and 
not  very  favorable  to  them.  In  Planche  v.  Fletcher,  Lord  Mansfield 
is  certainly  reported  to  have  said,  "It  is  indifferent  whether  the  goods 
were  English  or  French,  the  risk  insured  extends  to  all  captures,"  which 
seems  at  first  to  go  a  great  way  towards  giving  effect  to  insurances 
against  British  capture.  But  we  must  suppose  this  to  have  been  said 
because  the  defendant  did  not  press  the  objection;  and  if  the  party 
acquiesced,  the  expression  gives  no  more  weight  to  the  case  than  be- 
longs to  any  of  the  other  cases  which  have  been  cited,  such  as  Bermon 
V.  Woodbridge,  Eden  v.  Parkinson,  and  Tyson  v.  Gurney,  in  which 
the  question  was  not  raised  at  all.  On  the  other  hand,  the  cases  of 
Brandon  v.  Nesbitt  and  Bristow  v.  Towers  certainly  proceeded  on  the 
ground  of  alienage.  There  is  no  express  declaration  therefore  of  the 
Court  of  King's  Bench,  either  for  or  against  the  legality  of  such  in- 
surances, and  the  question  comes  now  to  be  decided  for  the  first  time. 
We  are  all  of  opinion  that  to  insure  enemies'  property  was  at  com- 
mon law  illegal,  for  the  reasons  given  by  the  two  foreign  jurists  [Byn- 
kershoek and  Valin]  to  whom  I  have  referred.  If  this  be  so,  a  con- 
tract of  this  kind  entered  into  previous  to  the  commencement  of  hos- 


588  RIGHTS   AND    DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

tilities  must  be  equally  unavailable  in  a  court  of  law,  since  it  is  equally 
injurious  to  the  interests  of  the  country;  for  if  such  a  contract  could 
be  supported,  a  foreigner  might  insure  previous  to  the  war  against  all 
the  evils  incident  to  war.  But  it  is  said  that  the  action  is  suspended, 
and  that  the  indemnity  comes  so  late  that  it  does  not  strengthen  the 
resources  of  the  enemy  during  the  war.  The  enemy  however  is  very 
little  injured  by  captures  for  which  he  is  sure  at  some  period  or  other 
to  be  repaid  by  the  underwriter.  Since  the  case  of  Bell  v.  Potts,  it 
has  been  universally  understood  that  all  commercial  intercourse  with 
the  enemy  is  to  be  considered  as  illegal  at  common  law  (though  previ- 
ous to  that  case  a  very  learned  judge,  Mr.  Justice  Buller,  in  Bell  v, 
Gilson,  1  Bos.  &  Pull.  345,  appears  to  have  entertained  doubts  on  that 
subject)  and  that  consequently  all  insurances  founded  on  such  inter- 
course are  also  illegal.  Why  are  they  illegal?  Because  they  are  in 
contravention  of  his  Majesty's  object  in  making  war,  which  is  by  the 
capture  of  the  enemies'  property,  and  by  the  prohibition  of  any  bene- 
ficial intercourse  between  them  and  his  own  subjects  to  cripple  their 
commerce.  The  same  reasoning  which  influenced  the  Court  of  King's 
Bench  in  their  decision  in  Bell  v.  Potts,  seems  decisive  in  the  present 
case.  For  it  being  determined  that  during  war  all  commercial  inter- 
course with  the  enemy  is  illegal  at  common  law,  it  follows  that  what- 
ever contract  tends  to  protect  the  enemy's  property  from  the  calamities 
of  war,  though  effected  antecedent  to  the  war,  is  nevertheless  illegal. 
It  has  been  supposed  that  the  doctrine  which  has  prevailed  respecting 
ransom  bills  tends  to  favor  these  insurances ;  but  no  action  was  ever 
maintained  upon  a  ransom  bill  in  a  court  of  common  law  until  the 
case  of  Ricord  v.  Bettenham,  3  Bur.  1734,  1  Bl.  563,  and  I  have  the 
authority  of  Sir  William  Scott  for  saying,  that  in  the  Admiralty  Court 
the  suit  was  always  instituted  by  the  hostage.  The  case  of  Ricord  v. 
Bettenham,  however,  certainly  tended  to  show  that  such  an  action  might 
be  maintained  in  the  courts  of  common  law  at  the  suit  of  an  alien  en- 
emy. In  consequence  of  this  a  similar  action  was  brought  in  Cornu 
v.  Blackburn,  Doug.  641,  and  after  argument  the  Court  of  King's 
Bench  held  that  it  might  be  sustained.  But  in  Anthon  v.  Fisher,  Doug. 
649,  650,  in  notis,  the  contrary  was  expressly  determined  upon  a  writ 
of  error  in  the  Exchequer  Chamber.  I  forbear  to  enter  into  the  argu- 
ment suggested  at  the  bar  in  favor  of  the  defendant,  that  the  law 
will  not  enforce  a  contract  founded  on  a  transaction  detrimental  to  the 
public  policy  of  the  state.  The  ground  upon  which  we  decide  this 
case  is,  that  when  a  British  subject  insures  against  captures,  the  law 
infers  that  the  contract  contains  an  exception  of  captures  made  by  the 
government  of  his  own  country;  and  that  if  he  had  expressly  insured 
against  British  capture,  such  a  contract  would  be  abrogated  by  the  law 
of  England.  With  respect  to  the  argument  insisted  upon  by  way  of 
answer  to  the  public  inconvenience  likely  to  arise  from  permitting  such 
contracts  to  be  enforced,  viz.  that  all  contracts  made  with  an  enemy 


Ch.  6)  PRIVATE   RIGHTS  AND   CONTRACTS  589 

enure  to  the  benefit  of  the  King  during  the  war,  and  that  he  may  en- 
force payment  of  any  debt  due  to  an  alien  enemy  from  afiy  of  his 
subjects,  we  think  it  is  not  entitled  to  much  weight.  Such  a  course  of 
proceeding  never  has  been  adopted ;  nor  is  it  very  probable  that  it  ever 
will  be  adopted,  as  well  from  the  difficulties  attending  it,  as  the  dis- 
inclination to  put  in  force  such  a  prerogative.  The  plaintiff,  I  am 
sorry  to  say,  is  not  entitled  to  a  return  of  premium,  because  the  con- 
tract was  legal  at  the  time  the  risk  commenced,  and  was  a  good  insur- 
ance against  all  other  losses  but  that  arising  from  capture  by  the  forces 
of  Great  Britain. 

Judgment  for  the  defendant.^ 


JANSON  V.  DRIEFONTEIN  CONSOLIDATED  MINES,  Ltd. 

(House  of  Lords,  1902.     L.  R.  [1902]  App.  Cas.  484.) 

The  respondents,  a  company  registered  under  the  law  of  the  South 
African  Republic,  in  August,  1899,  insured,  with  the  appellant  and 
other  underwriters,  gold  against  (inter  alia)  "arrests,  restraints,  and 
detainments  of  all  kings,  princes,  and  people,"  during  ite  transit  from 
the  gold  mines  near  Johannesburg  in  the  Transvaal  to  the  United  King- 
dom. On  October  2,  1899,  the  gold  was  during  its  transit  seized  on 
the  frontier  by  order  of  the  government  of  the  South  African  Repub- 
lic. On  October  11,  at  5  p.  m.,  a  state  of  war  began  between  the 
British  government  and  the  government  of  the  Republic.  At  the  time 
of  the  seizure  war  was  admitted  to  be  imminent. 

The  respondent  company  had  a  London  office,  but  its  head  office  was 
at  Johannesburg.  Most  of  its  shareholders  were  resident  outside  the 
Repubhc  and  were  not  subjects  thereof. 

The  respondent  company  having  brought  an  action  against  the  ap- 
pellant upon  the  policy,  it  was  agreed  between  the  parties  that  the 
action  should  be  treated  as  if  brought  at  the  conclusion  of  the  war,  and 
that  the  Blue  Book  might  be  referred  to  for  evidence  as  to  the  facts. 
The  action  was  tried  without  a  jury  before  Mathew,  J.,  who  held  that 

B  See,  further,  the  excellent  case  of  Brandon  v.  Curling,  4  East,  410,  (1803) 
in  which  Ellenborouph,  C.  J.,  held  that  an  insurance  on  goods  from  London 
to  Bayonne  in  France,  shipped  on  board  a  neutral  ship  on  account  and  at  the 
risk  of  Frenchmen  before  the  declaration  of  hostilities  between  Great  Britain 
and  France,  but  exported  afterwards,  cannot  be  enforced  against  the  under- 
writer even  after  the  restoration  of  peace,  to  recover  a  loss  by  capture  of  a 
co-belligerent  (though  not  stated  to  be  an  ally)  during  the  war ;  that  every 
insurance  on  alien  property  by  a  British  subject  must  be  understood  with  this 
implied  exception  thnt  it  shall  not  extend  to  cover  any  loss  happening  during 
the  existence  of  hostilities  between  the  respective  countries  of  the  assured  and 
assurer.  Of  this  case,  Mr.  Duer  says  (1  The  Law  and  Practice  of  Marine  In- 
surance, 473  [1845]):  "Thus,  it  was 'finally  determined,  that  a  supervening 
war  between  the  countries  of  the  assurers  and  the  assured,  from  the  time  that 
it  occurs,  renders  a  prior  insurance  illegal  and  void,  precisely  for  the  same 
reasons  that  render  the  contract  illegal  in  its  origin,  when  made  during  a 
war." 


590  RIGHTS  AND  DUTIES  OF  NATIONS   IN  TIME  OP  WAR         (Part  3 

the  appellant  was  liable.  [1900]  2  Q.  B.  339.  This  decision  was  af- 
firmed by  the  Court  of  Appeal  (A.  L.  Smith,  M.  R.,  and  Romer,  L.  J., 
Vaughan  Wilhams,  L.  J.,  dissenting)  [1901]  2  K.  B.  419.     *     *     *« 

Lord  Brampton  (read  by  Lord  Lindley).  My  Lords,  I  am  of 
opinion  that  the  respondent  is  entitled  to  your  Lordships'  judgment. 
At  first  sight  the  case  may  appear  to  be  fraught  with  difficulty;  but 
when  the  material  facts,  which  are  few  and  simple,  are  ascertained  and 
understood,  the  difficulty  will,  as  I  think,  be  found  to  be  more  apparent 
than  real. 

The  plaintiff  is  a  company  incorporated  under  the  laws  of  the  South 
African  Republic  for  the  purpose  of  working  gold  mines  therein.  The 
majority  of  its  shareholders  are  subjects  of  the  United  Kingdom.  The 
company  has  an  office  and  a  committee  of  management  in  England,  and 
it  was  a  custom  of  the  company  to  transmit  to  this  country  gold  bullion 
for  sale  and  distribution  of  the  profits  amongst  its  shareholders.  The 
company  clearly  must  be  treated  as  a  subject  of  the  Republic,  notwith- 
standing the  nationality  of  its  shareholders. 

In  the  early  autumn  of  1899  the  company  was,  in  the  ordinary  course 
of  business,  about  to  send  to  the  United  Kingdom  a  large  amount  of 
such  bullion,  and  on  August  1  it  effected  a  policy  of  insurance  on  its 
transit  from  the  mines  to  England  with  underwriters  at  Lloyd's,  the 
defendant,  a  British  subject,  being  one.  On  October  2  the  bullion 
was  placed  in  the  mail  train  at  Johannesburg  for  conveyance  to  Cape 
Town  en  route  for  its  destination.  It  reached  Vereeniging,  the  frontier 
station  of  the  Republic,  in  safety;  but  on  its  arrival  there  it  was 
seized  and  appropriated  by  the  then  government  of  the  Republic,  and 
became  totally  lost  to  the  plaintiff.  When  the  bullion  was  so  seized 
there  can  be  no  doubt  that  the  friendly  relations  between  this  coun- 
try and  the  South  African  Republic  were  much  strained;  but  both 
countries  were  negotiating  for  a  settlement  of  their  differences,  and 
it  was  not  until  the  afternoon  of  October  11  that  war  was  declared 
between  them,  from  which  date  they  continued  in  open  hostility  until 
the  end  of  May,  1902.  The  action  was  commenced  on  January  30, 
1900,  the  crucial  issue  between  the  parties  being  whether  war  had  been 
commenced,  or  a  state  of  hostility  equivalent  to  a  state  of  war,  so  far 
as  the  insurance  was  affected,  was  in  existence  between  the  two  coun- 
tries when  the  seizure  was  made  on  October  2,  1899.  If  the  answer 
was  in  the  affirmative,  the  plaintiff,  as  a  subject  of  the  Republic,  could 
not  recover  upon  his  policy  against  the  defendant,  an  English  subject 
and  an  alien  enemy  of  the  plaintiffs'  country ;  for,  although  covered 
by  the  words  of  the  policy,  it  would  have  been  a  loss  happening  dur- 
ing the  existence  of  hostilities,  and  within  the  proviso  which,  according 
to  the  language  of  Lord  Ellenborough  in  Brandon  v.  Curling  (1803) 
4  East,  417;  7  R.  R.  592.  is  in  all  cases  considered  as  engrafted  in  ev- 
ery insurance,  namely,  "that  this  insurance  shall  not  extend  to  cover 

6  The  opinion  of  Halsbury,  L.  C.,  is  omitted,  as  is  a  part  of  ttiat  by  I/ord 
Lindley. 


Ch.  6)  PRIVATE   RIGHTS   AND   CONTRACTS  591 

any  loss  happening  during  the  existence  of  hostilities  between  the  re- 
spective countries  of  the  assured  and  the  assurer."  The  reason  he 
assigns  for  this  is,  "because,  during  the  existence  of  such  hostilities, 
the  subjects  of  the  one  country  cannot  allowably  lend  their  assistance 
to  protect  by  insurance  the  property  and  commerce  of  the  subjects  of 
the  other."  The  law  is  in  other  words  also  explained  by  Willes,  J.,  in 
delivering  the  judgment  of  the  Exchequer  Chamber  in  Esposito  v.  Bow- 
den,  7  E.  &  B.  779:  "It  is  now  fully  established  that  the  presumed 
object  of  war  being  as  much  to  cripple  the  enemy's  commerce  as  to  cap- 
ture his  property,  a  declaration  of  war  imports  a  prohibition  of  com- 
mercial intercourse  and  correspondence  with  the  inhabitants  of  the 
enemy's  country,  and  that  such  intercourse,  except  with  the  license  of 
the  Crown,  is  illegal."  If,  however,  the  answer  to  the  issue  between 
the  parties  ought  to  be,  as  I  think  it  was,  rightly  found  by  Mathew, 
L.  J.,  in  the  negative,  the  plaintiff  company  was  clearly  entitled  (subject 
to  a  point  which  was  waived)  to  recover  its  loss  from  the  defendant, 
for  both  the  making  of  the  contract  of  indemnity  and  insurance  and 
the  loss  by  seizure — which  was  simply  an  outrage  by  the  Republic  upon 
its  own  subject — occurred  before  the  declaration  of  war. 

By  way  of  defence  it  was  urged  that  the  seizure  of  the  bullion  by 
the  government  of  the  Republic  was  incidental  to  actual  or  expected 
hostilities  against  Her  Majesty  Queen  Victoria,  and  for  the  purpose 
of  supplying  the  Republic  with  funds  to  levy  war  upon  Her  Majesty, 
and  that,  coupled  with  the  actual  declaration  of  war  which  followed, 
created  a  state  of  hostility  against  Her  Majesty,  and  rendered  the  plain- 
tiff's claim  for  indemnity  contrary  to  public  policy  and  irrecoverable. 

This  contention,  though  very  ingenious  and  exceedingly  well  argued 
by  the  learned  counsel,  affords,  in  my  opinion,  no  bar  to  this  action. 
It  was  an  endeavour  to  extend  the  well-established  principle  described 
by  Lord  EHenborough  so  as  to  meet  the  circumstances  of  this  case,  in 
which  undoubtedly  hostile  intentions  were  made  manifest  by  word  and 
by  action  during  the  time  negotiations  for  peace  were  being  carried 
on,  though  no  declaration  or  act  of  war  was  made  or  done  until  after 
the  British  government  had  signified  by  silence,  on  October  11,  the  non- 
acceptance  of  the  ultimatum  of  the  Republic  received  on  the  previous 
day.  No  decided  authority  supporting  this  contention  was  cited  to 
your  Lordships,  while,  in  my  opinon^  reason  and  good  sense  are 
against  it. 

Every  prudent  government  naturally  endeavours  and  takes  steps  to 
place  itself  in  a  condition  to  uphold  its  own  country  in  the  possible 
event  of  a  state  of  hostility  arising  with  any  other  power,  and  it  would 
indeed  be  strange  that  a  declaration  of  war  should  be  held  to  have  re- 
lation back  to  an  indefinite  period  of  time  during  which  both  the  hostile 
countries  believed  themselves  to  be  and  conducted  themselves  towards 
each  other  as  in  a  condition  of  amity,  and  were  negotiating  with  a 
view  to  avoid  any  rupture  of  a  then  existing  state  of  peace.  I  do  not 
think  it  necessary  to  say  more. 


592  RIGHTS  AND   DUTIES  OF  NATIONS   IN  TIME  OP  WAR         (Part  3 

In  my  opinion  the  judgments  of  Mathew,  L.  J.,  and  of  the  majority 
of  the  Court  of  Appeal  ought  to  be  upheld,  and  this  appeal  dismissed 
with  costs.     *     *    * 

Lord  Lindi.Ey,  *  *  *  My  Lords,  one  ground,  and  one  ground 
only,  is  invoked  to  shew  that  it  is,  and  that  ground  is  the  ground  of 
public  policy.  A  contract  or  other  transaction  which  is  against  public 
policy,  i.  e.,  the  general  interest  of  this  country,  is  illegal  (4  H.  L.  C. 
161,  195,  196) ;  but  public  policy  is  a  very  unstable  and  dangerous 
foundation  on  which  to  build  until  made  safe  by  decision.  On  this 
point  I  venture  to  remind  your  Lordships  of  the  weighty  observations 
of  Alderson,  B.,  and  Parke,  B.,  in  Egerton  v.  Brownlow,  4  H.  L.  C. 
106,  123. 

The  seizure  of  the  gold  in  the  present  case  was  a  distinct  gain  to 
the  captors.  To  indemnify  the  owner  of  the  gold  against  the  loss  of 
such  gold  is  clearly  a  benefit  to  the  owner,  and  such  an  indemnity  is 
a  benefit  to  a  person  who  is  regarded  as  an  enemy  as  soon  as  war  breaks 
out.  But  he  was  not  an  enemy  when  the  policy  was  effected  nor  when 
the  gold  was  seized,  and  how  it  can  be  against  the  policy  of  this  coun- 
try to  keep  faith  with  him  when  the  war  is  over  I  fail  to  see.  He  can- 
not, of  course,  sue  in  this  country  during  the  war  if  the  defendants 
raise  that  objection;  but  they  do  not.  The  contention  is  that  if  the 
war  were  over  this  action  could  not  be  maintained. 

Reference  was  made  in  the  argument  to  such  cases  as  The  Jan 
Frederick,  5  C.  Rob.  129,  and  The  Boedes  Lust  (1804)  5  C.  Rob.  233, 
to  shew  that  contracts  made  before  war  breaks  out,  but  in  contempla- 
tion of  it,  for  the  protection  of  enemy's  property  against  British  cap- 
ture, will  not  be  recognized  in  this  country.  This  is  intelligible  enough ; 
for  to  recognize  such  contracts  would  be  to  defeat  the  object  of  this 
country  in  effecting  the  capture.  It  would  be  to  undo  by  means  of 
British  tribunals  the  work  done  for  the  British  nation  by  its  naval  or 
military  forces.  Artything  which  would  produce,  or  be  calculated  to 
produce,  such  an  effect  as  that  would  be  clearly  against  public  policy, 
and  be  judicially  dealt  with  accordingly.  I  am  unable  myself  to  bring 
the  present  case  within  this  principle.  The  view  that  public  policy  re- 
quires an  extension  of  rules  already  recognized  so  as  to  meet  the  pres- 
ent case  has  been  very  clearly  presented  by  Vaughan  Williams,  L.  J., 
in  his  judgment.  I  am  unable,  however,  to  arrive  at  the  same  conclu- 
sion. His  view  appears  to  me  to  be  based  on  the  doctrine  which  iden- 
tifies every  subject  of  a  State  with  its  own  Government.     *     *     * 

War  produces  a  state  of  things  giving  rise  to  well-known  special 
rules.  It  prohibits  all  trading  with  the  enemy  except  with  the  Royal 
licence,  and  dissolves  all  contracts  which  involve  such  trading.  See 
Esposito  v.  Bowden,  7  E.  &  B.  781  et  seq.  But  threatened  war  or  an- 
ticipated war  or  imminent  war  is  peace,  which  may  not  after  all  result 
in  war ;  and  to  apply  the  rules  of  war  to  insurances  against  loss  be- 
fore war  breaks  out  would  paralyze  commerce,  and  often  without  any 


Ch.  6)  PRIVATE   RIGHTS   AND   CONTRACTS  593 

real  necessity.  Is  it  for  the  interest  of  this  country  to  dislocate  trade 
because  international  relations  are  strained  and  war  appears  probable 
to  the  public,  who  do  not  know  and  cannot  know  the  real  views  and 
resolutions  of  the  Governments  concerned?  It  must  be  remembered 
that  contracts  of  insurance  are  not  by  any  means  the  only  contracts 
which  have  to  be  considered  in  this  connection ;  what  affects  them 
affects  contracts  of  sale  and  contracts  of  carriage  both  by  land  and 
sea,  and  in  fact  affects  the  whole  external  commerce  of  the  country. 
Romer,  L.  J.,  saw  this,  as  is  apparent  from  his  judgment. 

My  Lords,  where  a  policy  of  insurance  is  not  void  ab  initio,  and  a 
loss  from  one  of  the  perils  insured  against  happens  before  war  is  de- 
clared or  breaks  out,  what  defence  can  be  offered  to  an  action  upon  it  ? 
I  know  of  none  except  where  the  loss  is  occasioned  by  British  capture 
followed  by  war.  Of  course,  if  war  breaks  out  before  the  action  is 
brought  or  before  it  is  over,  the  war  suspends  its  prosecution,  for  an 
alien  enemy  cannot  sue  in  this  country.  Le  Bret  v,  Papillon  (1804)  4 
East,  502,  7  R.  R.  618.  Your  Lordships  are  asked  to  invent  a  new 
defence  unheard  of  before,  and  to  say  that  every  policy  on  a  foreigner's 
property  abroad  is  subject  to  the  implied  condition  that  it  shall  not  be 
seized  by  his  own  government  in  order  to  be  used  against  this  country 
if  war  breaks  out.  Such  a  doctrine,  I  venture  to  think,  would  paralyze 
legitimate  trade  and  be  entirely  against  the  interests  of  this  country. 

In  my  opinion  the  order  and  judgment  appealed  from  should  be 
affirmed  and  the  appeal  be  dismissed  with  costs. 

Order  of  the  Court  of  Appeal  affirmed  and  appeal  dismissed  with 
costs.' 

T  In  15  Harv.  Law  Rev.  237  (1901)  the  following  criticism  appears  of  the 
principal  case:  "Acts  done  in  contemplation  of  war  are,  if  war  ensues,  re- 
pirded  as  if  done  in  time  of  war.  The  Jan  Fredericls,  5  Rob.  128  [1804] ;  The 
Boedes  Lust,  5  Rob.  233  [1804].  The  question,  then,  is  whether  it  is  against 
public  policy  for  an  insurance  company  to  insure  an  alien  enemy  against 
seizure  of  his  property  by  his  own  government.  No  decided  case  covers  this. 
It  has  been  held  that  insurance  of  an  enemy's  subject  against  capture  of  his 
goods  bv  ships  of  the  insurer's  government  is  void.  Furtado  v.  Rogers,  3  Bos. 
&  P.  191  [1802];  Gamba  v.  Le  Mesurier,  4  East,  407  [1803].  The  ground  of 
the  decisions  was  that  a  state  could  not  put  the  same  pressure  on  its  enemy 
if  the  enemy  knew  it  would  be  recouped  at  the  end  of  the  war  by  subjects  of 
that  state.  This  principle  applies  with  equal  if  not  greater  force  to  insur- 
ance on  goods  seized  by  the  government  of  the  assured.  Payment  of  such  in- 
surance would  be  relieving  the  enemy's  subject  from  the  pressure  put  upon 
him  by  his  own  government  to  carry  on  the  war,  and  would  in  effect  be  pay- 
ing tlie  enemy's  expenses.  On  principle  and  authority  the  case  is  wrong, 
though  it  has  the  practical  advantage  of  affording  relief  to  commerce." 
Scott  Int.Law— 38 


594  RIGHTS  AND   DUTIES  OF  NATIONS   IN  TIME  OF  WAR         (Part  3 


HUGH  STEVENSON  &  SONS,  Limited,  v.  AKTIENGESELL- 
SCHAFT   FiJR   CARTON NAGEN-INDUSTRIE. 

(House  of  Lords,  1918.    L.  R.  [1918]  App.  Cas.  239.) 

Lord  Finlay,  L.  C.*  My  Lords,  the  appellants  are  a  limited  com- 
pany incorporated  under  English  law,  and  the  respondents  are  a  Ger- 
man trading  corporation.  The  two  companies  traded  in  England  in 
partnership  and  carried  on  a  business  described  as  a  clamp  factory. 
It  consisted  in  the  manufacture  and  sale  of  metal  edges  for  securing 
cardboard  boxes.  The  partnership  business  was  carried  on  under  an 
agreement  in  writing  dated  November  22,  1906.  Clause  2  provided  for 
its  remaining  in  force  for  five  years  from  January  1,  1907,  and  there- 
after till  the  expiration  of  six  months'  notice  by  either  party.  Clauses 
3,  4,  5,  6,  and  7  related  to  an  agency  business  quite  distinct  from  the 
partnership  business  with  which  alone  the  present  case  is  concerned. 
The  partnership  business  was  regulated  by  clauses  8  to  15.  Nothing 
turns  on  the  details  of  these  arrangements,  and  it  is  only  necessary 
to  observe  that  clause  12,  as  to  the  sale  of  the  machinery  on  dissolu- 
tion, has  no  application  in  the  present  case,  as  the  operation  of  that 
clause  is  confined  to  dissolution  by  effluxion  of  time  or  notice  under 
clause  2.  The  remaining  provisions  of  the  agreement  are  for  the  pres- 
ent purpose  immaterial. 

On  August  4,  1914,  war  broke  out  between  this  country  and  Ger- 
many, and  it  is  admitted  that  the  effect  of  the  war  was  to  dissolve  the 
partnership  at  once. 

The  dispute  in  the  present  case  turns  on  the  question  what  is  to  be 
done  in  respect  of  the  respondents'  share  in  the  machinery  belonging 
to  the  partnership  and  used  in  carrying  it  on. 

The  appellants  continued  to  carry  on  the  business  which  had  been 
that  of  the  partnership  and  used  the  machinery  for  the  manufacture 
of  the  clamps.  On  June  21,  1915,  the  appellants  commenced  an  action 
under  the  Legal  Proceedings  against  Enemies  Act,  1915  (5  Geo.  V,  c. 
36),  asking  for  a  declaration  that  the  plaintififs  should  account  for  the 
machinery  at  the  price  at  which  it  stood  in  the  books  of  the  partner- 
ship on  August  4,  1914,  or,  alternatively,  at  its  value  on  that  date. 

The  case  was  tried  by  Atkin,  J.,  on  February  8,  1916.  He  gave 
judgment,  making  the  following  declaration  with  regard  to  the  partner- 
ship :  "That  the  partnership  constituted  by  the  said  contract  was  dis- 
solved on  the  said  August  4,  1914;  that  the  defendants  are  entitled 
to  the  value  of  their  share  in  the  said  partnership  including  the  good 
will,  if  any,  as  of  the  date  of  August  4,  1914;  that  clause  12  of  the 
said  contract  is  not  applicable;  and  that  the  defendants  are  not  en-: 
titled  to  any  of  the  pr6fits  of  or  interest  in  the  capital  of  the  partner- 
ship since  August  4,  1914." 

8  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 

Scott  Int.Law 


Ch.  6)  PRIVATE   RIGHTS  AND   CONTRACTS  595 

The  effect  of  Atkin,  J.'s  judgment  was  that  he  held  that  the  respond- 
ents were  entitled  to  the  value  of  their  share  in  the  property  of  the 
partnership  as  on  August  4,  1914,  but  were  not  entitled  to  any  of  the 
profits  of  or  interest  in  the  capital  of  the  partnership  since  August  4, 
1914.  In  other  words,  he  held  that  the  English  company  were  entitled 
to  use  the  machinery  for  the  purposes  of  the  business  without  making 
any  allowance  to  the  German  partner  for  the  use  of  his  interest  therein. 

The  German  partner  is,  of  course,  not  entitled  to  any  payment  so 
long  as  the  war  lasts,  but  the  declaration  of  Atkin,  J,,  if  it  stands, 
would  prevent  his  getting  on  the  conclusion  of  peace,  anything  beyond 
the  capital  value  of  his  interest  in  the  machinery  at  the  date  of  disso- 
lution. 

The  Court  of  Appeal  were  divided  in  opinion.  A.  T.  Lawrence,  J., 
agreed  with  Atkin,  J.,  while  Swinfen  Eady,  L.  J.,  and  Bankes,  L.  J., 
held  that  the  right  to  some  allowance  in  respect  of  the  use  by  the 
plaintiffs  of  the  German  company's  interest  in  the  machinery  should 
not  be  excluded  altogether.  The  Court  of  Appeal  accordingly  re- 
versed Atkin,  J.'s  judgment  and  substituted  for  the  declaration  made 
by  him,  and  above  quoted  by  me,  the  following:  "Declaration  3.  That 
the  partnership  constituted  by  the  said  contract  was  dissolved  on  the 
said  August  4,  1914,  that  the  defendants  are  entitled  to  their  share  in 
the  said  partnership,  including  the  good  will  (if  any),  and  that  clause 
12  of  the  said  contract  is  not  applicable." 

From  that  decision  the  present  appeal  has  been  brought. 

In  my  opinion  the  decision  of  the  majority  of  the  Court  of  Appeal 
is  right.  It  is  not  the  law  of  this  country  that  the  property  of  enemy 
subjects  is  confiscated.  Until  the  restoration  of  peace  the  enemy  can, 
of  course,  make  no  claim  to  have  it  delivered  up  to  him,  but  when  peace 
is  restored  he  is  considered  as  entitled  to  his  property  with  any  fruits 
which  it  may  have  borne  in  the  meantime.  The  question  to  be  deter- 
mined in  the  present  case  does  not  depend  upon  any  contract,  but  on 
the  rights  of  property  which  both  partners  have  in  the  assets  of  the 
firm.  The  enemy  partner  was  entitled  to  the  value  of  his  share  in 
the  machinery.  If  that  amount  had  been  ascertained  on  August  4,  1914, 
it  would  have  been  retained  in  custody,  and  if  it  had  been  invested,  as 
in  ordinary  course  it  would  have  been,  the  enemy  partner  would  on 
the  conclusion  of  peace  have  been  entitled  to  the  principal  with  any 
interest  or  dividends  which  had  accrued  in  the  meantime. 

What  took  place  here  was  that  the  English  partner  continued  the 
business,  using  the  machinery  to  earn  profits.  The  German  partner 
is,  of  course,  not  entitled  to  any  share  of  the  profits  attributable  to  the 
skill  or  industry  of  the  English  partner,  but  some  portion  of  the  profits 
may  be  attributable  to  the  machinery  used,  and  the  enemy  partner 
would  be  entitled  to  some  allowance  in  respect  of  his  interest  therein. 
Or  to  put  the  matter  in  another  way,  some  allowance  may  be  made  in 
lieu  of  interest  on  its  value  in  respect  of  the  use  by  the  English  part- 
ner of  the  German  share  in  the  machinery. 


596  RIGHTS   AND   DUTIES  OF  NATIONS   IN  TIME  OF   WAR         (Part  3 

This  appears  to  me  to  follow  from,  the  principle  that  the  property 
of  an  enemy  is  not  confiscated,  though  his  right  to  have  it  back  is  sus- 
pended during  war.  It  was  strenuously  contended  that  in  the  case  of 
a  debt  to  a  foreigner  bearing  interest  no  interest  could  accrue  during 
the  existence  of  hostilities  between  the  countries  of  the  debtor  and  cred- 
itor, and  in  support  of  this  proposition  two  American  cases  were 
cited,  Hoare  v.  Allen,  2  Dall.  102,  1  L.  Ed.  307,  and  Brown  v.  Hiatts, 
15  Wall.  177,  21  L.  Ed.  128,  the  latter  a  decision  of  the  Supreme 
Court  of  the  United  States. 

These  decisions  seem  to  me  not  to  be  in  conformity  with  English 
law.  The  rule  of  international  law  on  this  point,  in  the  view  of  the 
courts  of  this  country,  does  not  appear  to  have  formed  the  subject  of 
any  express  decision  in  England.  The  judgment  of  Lord  Ellenbor- 
ough,  however,  in  Wolff  v,  Oxholm,  6  M.  &  S.  92,  appears  to  me  to 
imply  that,  in  the  view  of  Lord  EUenborough,  interest  on  such  a  debt 
would  not  cease  to  run  during  the  continuance  of  the  war,  but  the 
point  does  not  appear  to  have  been  argued.  It  is  difficult  to  see  on  what 
principle  the  interest  is  to  be  forfeited  if  private  property  is  to  be  re- 
spected. 

But  in  any  case,  even  if  these  American  decisions  were  right,  the  con- 
sequences contended  for  by  the  appellants  would  not,  in  my  opinion, 
follow.  The  question  here  is  not  of  contract,  but  of  property,  and 
what  is  equitable  as  between  two  partners  in  respect  of  the  property  of 
the  firm.  If  the  English  partner  uses  the  machinery  which  was  in 
part  the  property  of  the  enemy  partner,  why  should  not  he  in  justice 
make  some  allowance  in  respect  of  this  use?  The  price  representing 
the  value  of  the  interest  of  the  machinry  has  not  been  paid,  and  I  do 
hot  think  that  it  would  be  in  accordance  with  law  to  allow  a  declara- 
tion to  stand  which  would  bar  all  right  to  share  in  any  profits  which 
may  be  found  to  be  attributable  to  the  use  of  the  machinery,  or  some 
allowance  by  way  of  interest  on  the  value  of  the  German  partner's 
share  in  it. 

I  agree  with  the  reasons  given  by  the  majority  of  the  Court  of  Ap- 
peal, and  think  that  this  appeal  should  be  dismissed  with  costs.     *     *     * 

Order  of  the  Court  of  Appeal  affirmed  and  appeal  dismissed  with 
costs. 


Ch.  6)  PRIVATE   RIGHTS   AND   CONTRACTS  597 

ERTEL  BIEBER  &  CO.  v.  RIO  TINTO  CO. 

DYNAMIT  ACTIEN-GESELLSCHAFT  v.  SAME. 

VEREINIGTE  KOENIGS  UND  LAURAHUETTE  ACTIEN- 
GESELLSCHAFT  V.  SAME. 

(House  of  Lords,  1918.    L.  R.  [1918]  App.  Cas.  260.) 

Appeals  from  three  orders  of  the  Court  of  Appeal  affirming  judg- 
ments of  Sankey,  J. 

The  several  appellants  were  German  companies  carrying  on  business 
in  Germany.  The  respondent  company  was  incorporated  in  England 
an'd  owned  large  mines  of  cupreous  sulphur  ore  in  Spain. 

These  appeals  related  to  contracts  entered  into  before  the  war  for 
the  supply  by  the  respondents  of  cupreous  sulphur  ore  to  the  several  ap- 
pellants, and  the  question  for  determination  was  whether  such  contracts 
had  been  entirely  abrogated  and  avoided  or  whether  they  were  merely 
suspended  during  the  period  of  the  war. 

The  facts  are  fully  stated  by  Lord  Dunedin  in  his  judgments  in  the 
first  and  second  cases.  The  third  case  was  admittedly  covered  by  the 
second  and  was  not  argued.     *     *     * 

Lord  Dunedin.^  My  Lords,  the  respondents,  whom  I  shall  here- 
after call  the  plaintiffs,  taking  advantage  of  the  provisions  of  the 
Legal  Proceedings  against  Enemies  Act,  1915,  have  raised  this  action 
to  obtain  a  declaration  as  against  the  appellants,  whom  I  shall  hereafter 
call  the  defendants,  that  by  the  existence  of  a  state  of  war  between 
Great  Britain  and  Germany  on  August  4,  1914,  two  contracts  of  dates 
January  27,  1910,  and  October  9,  1913,  with  indorsements  on  the  first 
mentioned  of  March  15  and  October  8,  1912,  were  abrogated  and 
avoided;  and  that  they  were  relieved  from  any  duties  or  obligations 
under  the  contracts,  without  prejudice  to  liabilities  already  incurred  at 
the  aforesaid  date  of  August  4,  1914. 

The  plaintiffs  are  an  English  company  owning  extensive' mines  of 
cupreous  ore  situate  in  Spain.  The  defendants  are  a  German  firm  who 
deal  in  such  ore  and  resell  to  various  customers  in  Germany.  Both  con- 
tracts were  for  a  very  large  quantity  of  ore.  The  first  was  for  1,280,- 
000  tons,  15  per  cent,  more  or  less  in  buyers'  option,  a  quantity  which 
by  two  indorsements  was  increased  to  1,592,750  tons.  The  ore  was  to 
be  delivered  in  approximately  equal  quantities  between  February  1  and. 
November  30  in  the  years  1911  to  1914.  It  was  to  be  shipped  from 
Huelva  in  Spain,  and  delivered  ex  ship  at  Rotterdam,  Hamburg,  Stet- 
tin, and  /or  other  European  continental  ports  except  ports  in  Great 
Britain,  France,  Belgium,  Spain  and  Portugal.  There  were  minute  ar- 
rangements as  to  quality  and  price,  and  various  other  clauses,  to  some 
of  which  I  shall  presently  advert.    The  second  contract  was  for  2,200,- 

e  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


598  RIGHTS  AND   DUTIES   OF  NATIONS   IN   TIME   OF   WAR         (Part  3 

OCX)  tons,  15  per  cent,  more  or  less  in  buyers'  option,  to  be  delivered 
in  equal  portions  from  February  1,  1915,  up  to  November  30,  1919, 
at  same  ports  as  in  the  first  contract.  When  war  broke  out  between 
Great  Britain  and  Germany  on  August  4,  1914,  all  deliveries  had  been 
made  under  the  first  contract  except  about  200,000  to  300,000  tons. 
Obviously  no  deliveries  had  begun  under  the  second  contract.  No  de- 
liveries have  been  made  since  the  war  begun.  Sankey,  J.,  gave  the 
plaintiffs  the  declaration  they  asked,  and  his  judgment  was  afiirmed 
by  the  Court  of  Appeal.  Against  these  orders  the  present  appeal  is 
brought. 

My  Lords,  the  proposition  of  law  on  which  the  judgment  of  the 
courts  is  based  is  that  a  state  of  war  between  this  kingdom  and  an- 
other country  abrogates  and  puts  an  end  to  all  executory  contracts 
which  for  their  further  performance  require,  as  it  is  often  phrased, 
commercial  intercourse  between  the  one  contracting  party,  subject  of 
the  king,  and  the  other  contracting  party,  an  alien  enemy,  or  any  one 
voluntarily  residing  in  the  enemy  country.  I  use  the  expression  "often 
phrased  commercial  intercourse"  because  I  think  the  word  "intercourse" 
is  sufficient  without  the  epithet  "commercial."  As  to  this  I  agree  with 
the  judgment  of  the  Court  of  Appeal  in  the  case  of  Robson  v.  Premier 
Oil  &  Pipe  Line  Co.  [1915]  2  Ch.  124,  136,  where  Pickford,  L.  J., 
delivering  the  judgment  of  the  court,  Lord  Cozens-Hardy,  M.  R., 
himself,  and  Warrington,  L.  J.,  said:  "The  prohibition  of  intercourse 
with  alien  enemies  rests  upon  public  policy,  and  we  can  see  no  ground 
either  on  principle  or  authority  for  holding  that  a  transaction  between 
an  alien  enemy  and  a  British  subject  which  might  result  in  detriment 
to  this  country  or  advantage  to  the  enemy  is  permissible  because  it 
cannot  be  brought  within  the  definition  of  a  commercial  transaction." 
That  so  expressed  it  is  an  incontrovertible  proposition  admits,  I  think, 
upon  the  authorities,  of  no  doubt.     *     *     * 

The  real  defence  to  the  action  is  to  be  found  in  a  clause  which  I 
have  not  yet  mentioned.  There  is  a  clause  in  practically  identical  terms 
in  both  contracts.  I  will  therefore  take  that  in  the  later  contract.  It 
is  clause  15,  which  is  in  the  following  terms: 

"15.  If  owing  to  strikes,  war,  or  any  other  cause  over  which  the 
sellers  have  no  control,  they  should  be  prevented  from  shipping  the 
ore  from  Huelva,  or  delivering  same  to  the  buyers,  the  obligation  to 
ship  and  /or  deliver  shall  be  suspended  during  the  continuance  of  such 
impediment,  and  for  a  reasonable  time  afterwards,  to  allow  the  sellers 
time  to  resume  shipments,  and  /or  deliveries,  and  if  one  or  more  works 
of  buyers'  clients  should  be  destroyed  or  materially  damaged  by  fire, 
or  should  war  or  any  other  cause,  over  which  the  buyers,  or  their  cli- 
ents, have  no  control,  prevent  their  receiving  such  ore,  the  obligation 
to  receive  under  this  contract  shall  be  reduced  in  proportion,  or  sus- 
pended during  the  continuance  of  such  impediment  and  for  a  rea- 
sonable time  afterwards,  to  allow  the  buyers  time  to  recommence  re- 
ceipts." 


Ch.  G)  PRIVATE   RIGHTS   AND   CONTRACTS  599 

The  defendants  argue  that  the  effect  of  this  clause  is  to  remove  from 
the  contract  all  necessity  for  the  forbidden  thing  (intercourse  during 
the  war),  and  that  the  ratio  decidendi  of  Esposito  v.  Bowden,  7  E.  & 
B.  763,  is  therefore  gone,  and  that  there  is  no  reason  why  the  contract 
to  deliver  after  the  war  should  not  be  good. 

The  learned  judges  of  the  courts  below  have  treated  this  clause  by 
the  method  of  what  may  be  termed  confession  and  avoidance.  The 
clause  only  purports  to  suspend  deliveries — nothing  else.  But,  say 
they,  there  were  other  duties  under  the  contract  besides  deliveries. 
These  duties  still  remain  and  entail  intercourse,  so  that  again  the  case 
is  brought  within  the  principle  of  Esposito  v.  Bowden,  7  E.  &  B.  763. 
In  particular  they  cite  clauses  12,  18,  and  19,  and  they  say  that  the 
case  in  respdct  of  these  clauses  falls  directly  within  the  decision  of 
the  Court  of  Appeal  which  binds  them,  in  the  case  of  Zinc  Corpora- 
tion V.  Hirsch  [1916]  1  K.  B.  541.  To  which  the  defendants  before 
your  Lordships'  House  reply  that  the  clauses  are  not  analogous,  and, 
further,  that  the  Zinc  Corporation  Case  [1916]  1  K.  B.  541,  was  ill 
decided. 

My  Lords,  I  do  not  think  it  can  be  gainsaid  that,  Esposito  v.  Bow- 
den, 7  E.  &  B.  763,  being,  as  I  have  already  said,  good  law,  then,  if 
there  are  duties  which  remain  unaffected  by  the  suspensory  clause  and 
these  duties  involve  intercourse,  the  contract  must  be  avoided.  In  so 
far  as  the  Zinc  Corporation  Case  [1916]  1  K,  B.  541,  laid  down  this 
proposition  it  was,  in  my  opinion,  right ;  and  it  is  useless  to  examine 
the  clauses  in  that  case.  It  is  necessary,  however,  to  examine  what  the 
duties  are  under  this  contract.  In  order  to  make  clause  12  intelligible 
it  is  necessary  first  to  quote  clause  2,  which  is  in  these  terms : 

"2.  One-fifth  of  the  above  2,200,000  tons,  viz.,  440,000  tons,  15  per 
cent,  more  or  less,  is  to  be  shipped  in  each  year,  during  the  period  be- 
tween 1st  February  and  30th  November,  and  spread  as  nearly  as  sellers 
can  arrange  uniformly  over  this  period.  The  sizes  of  cargoes  for 
Rotterdam,  Hamburg  and  Stettin  shall  be  in  sellers'  discretion,  but  for 
other  ports  sellers  shall  arrange  as  far  as  possible  for  such  reasonably- 
sized  cargoes,  but  not  exceeding  3,000  tons,  as  buyers  desire.  About 
one-half  of  the  ore  is  to  be  lumps  and  about  one-half  is  to  be  fines, 
viz.,  ore  which  has  passed  through  a  half-inch  square  mesh  screen." 

Clause  12,  so  far  as  material,  is  as  follows :  "The  buyers  are  to  de- 
clare in  writing  not  later  than  1st  January  of  each  year  the  total  quan- 
tity of  fines  and  lumps  separately  which  they  desire  delivered  during 
that  year,  and  what  quantity  of  each  size  is  to  l>e  delivered' at  each  port." 

The  defendants  contend  that  there  is  here  no  duty,  but  a  mere  op- 
tion on  their  part.  If  tliey  do  not  declare,  all  that  ensues  is  that  the 
ore  falls  to  be  divided  equally  between  fines  and  lumps.  I  do  not  agree 
with  the  defendants'  view.  It  is  not  alone  the  proportion  as  between 
fines  and  lumps  but  the  total  quantity  that  has  to  be  determined,  i.  e., 
the  decision  as  to  the  15  per  cent,  more  or  less.  Moreover,  evidence 
has  been  led,  which  there  is  no  reason  to  disbelieve,  by  which  it  is 


600  RIGHTS  AND   DUTIES   OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

shown  that  from  the  sellers'  point  of  view  it  is  necessary  to  have  these 
two  matters  fixed  in  order  to  settle  the  programme  for  working  the 
mine  during  the  ensuing  year.  And  this  yearly  duty  seems  to  me 
quite  independent  of  delivery.  I  am  therefore  prepared  to  agree  with 
the  Court  of  Appeal  on  this  ground  of  judgment. 

As  regards  clauses  18  and  19,  I  confess  I  am  doubtful.  Clause  18  is 
an  arbitration  clause.  Now,  though  I  agree  with  the  learned  judge 
who  says  that  arbitration  cannot  be  conducted  without  intercourse,  it 
seems  to  me  that  arbitration  is  not  a  necessary,  nor  indeed  a  usual,  part 
of  the  performance  at  a  time  when  ex  hypothesi  all  deliveries  under 
the  contract  are  suspended.  There  is  nothing  for  the  time  being  to 
arbitrate  about.  So  also  as  regards  clause  19.  This  is  a  very  special 
matter,  providing,  in  the  event  of  a  Mr.  Julius  Ertel  ceasing  to  be  a 
member  of  the  firm  of  Ertel,  Bieber  &  Co.,  Tna.t  his  place  in  the  active 
administration  should  be  filled  in  a  certain  way.  But  Mr.  Julius  Ertel 
has  not,  so  far  as  known,  ceased  to  be  a  member  of  the  firm,  and  active 
administration  on  the  afore-mentioned  hypothesis  of  suspended  deliv- 
eries is  at  a  standstill. 

My  Lords,  while  the  construction  which  I  put  on  clause  12  affords, 
as  I  have  said,  sufficient  ground  to  enable  me  to  say  that  the  judgment 
of  the  Court  of  Appeal  should  be  affirmed,  it  is,  I  think,  desirable 
that  our  judgment  should  be  also  based  on  rather  broader  grounds. 
It  is  the  more  necessary  to  express  an  opinion  on  this  point,  because, 
as  I  shall  hereafter  have  to  say,  I  think  the  argument  on  clause  12 
fails  to  be  applicable  in  the  two  other  cases  which  your  Lordships 
will  presently  consider. 

My  Lords,  I  confess  I  cannot  read  clause  15  without  coming  to 
the  conclusion  that,  although  war  is  mentioned  eo  nomine  in  that 
clause,  it  is  not  war  between  Great  Britain  and  Germany,  with  the 
legal  consequences  thereon  ensuing,  that  is  envisaged,  but  war  between 
other  powers,  of  whom  Great  Britain  or  Germany  may  be  one,  and 
which  acts  as  a  practical  impediment  via  facti  in  stopping  the  possi- 
bility of  delivery.  But  it  is  not  necessary,  in  my  view,  to  decide  this 
question,  for  the  simple  reason  that  the  respondents  seem  to  me  to  be 
involved  in  a  dilemma.  Either  the  war  which  is  to  suspend  delivery 
does  not  include  a  war  between  Great  Britain  and  Germany,  in  which 
case  the  clause  does  not  apply,  or  if  it  does  mean  such  a  war,  with  the 
legal  consequences  following  thereon,  then,  in  my  view,  the  clause 
is  void  as  against  public  policy.  I  apprehend  that  in  saying  this  I  am 
not  inventing  a  new  head  of  public  policy.  I  respectfully  subscribe 
to  the  remarks  made  on  this  subject  by  the  Earl  of  Halsbury  in  Janson 
V.  Driefontein  Consolidated  Mines  [1902]  A.  C.  484,  491.  I  take 
my  view  of  what  is  against  public  policy  from  what  has  been  said 
in  a  series  of  cases  which  have  certainly  become  the  law  of  England. 

Let  me  revert  to  the  leading  cases,  which  I  have  already  cited.  The 
case  of  The  Hoop,  1  C.  Rob.  196,  was  a  case  where  the  goods  from 


Ch.  6)  PRIVATE   RIGHTS   AND   CONTRACTS  601 

an  enemy  country,  which  had  been  consigned  to  British  subjects  and 
under  contract  became  his  property,  were  confiscated  by  capture  by  a 
British  ship.  The  contract  with  the  enemy  subject  by  which  the  prop- 
erty in  the  goods  passed  was  made  pendente  bello.  The  ground  of 
judgment  was  that  all  trading  with  the  enemy  is  unlawful  at  common 
law  as  against  public  policy.  Why?  Not  because  of  the  terms  of 
the  particular  contract,  but  because  contract  in  general  might  enhance 
the  resources  of  the  enemy  or  cripple  those  of  the  subjects  of  the  king. 

The  case  of  Furtado  v.  Rogers,  3  Bos.  &  P.  191,  198,  199,  advanced 
the  application  of  the  rule  a  step  further.  Here  the  contract,  which 
was  one  of  insurance  to  indemnify  for  losses  by  war  was  entered  into 
when  the  countries  were  at  peace.  It  was  held  that  to  allow  such  a 
contract,  if  war  meant  war  between  the  insurer's  country  and  this 
country,  was  unlawful.  The  ground  on  which  this  is  put  is  very  im- 
portant. "We  are  all  of  opinion,"  said  Lord  Alvanley,  "that  on  the 
principles  of  the  English  law  it  is  not  competent  to  any  subject  to  en- 
ter into  a  contract  to  do  anything  which  may  be  detrimental  to  the 
interests  of  his  own  country ;  and  that  such  a  contract  is  as  much  pro- 
hibited as  if  it  had  been  expressly  forbidden  by  act  of  Parliament.  It 
is  admitted  that  if  a  man  contract  to  do  a  thing  which  is  afterwards 
prohibited  by  act  of  Parliament,  he  is  not  bound  by  his  contract.  This 
was  expressly  laid  down  in  Brewster  v.  Kitchell,  1  Salk.  198.  And 
on  the  same  principle,  where  hostilities  commence  between  the  coun- 
try of  the  underwriter  and  the  assured,  the  former  is  forbidden  to  ful- 
fil his  contract."  He  then  cites  a  passage  from  Bynkershoek's  Quaes- 
tiones  Juris  Publici,  "Hostium  pericula  in  se  suscipere  quid  est  aliud 
quam  eorum  commercia  maritima  promovere,"  and  another  from  Valin, 
who,  speaking  of  the  conduct  of  the  English  during  the  war  of  1756, 
who  at  that  time  permitted  these  insurances,  said,  "The  consequence 
was,  that  one  part  of  that  nation  restored  to  us  by  the  effect  of  insur- 
ance what  the  other  took  from  us  by  the  rights  of  war."  And  then  he 
goes  on  to  deal  with  another  argument  in  a  way  which  seems  to  apply 
directly  to  some  of  the  arguments  used  in  this  case.  "But  it  is  said  that 
the  action  is  suspended,  and  that  the  indemnity  comes  so  late  that  it 
does  not  strengthen  the  resources  of  the  enemy  during  the  war.  The 
enemy  however  is  very  little  injured  by  captures  for  which  he  is  sure 
at  some  period  or  other  to  be  repaid  by  the  underwriter." 

Then  came  Esposito  v.  Bowden,  7  E.  &  B.  763,  which  applied  the 
doctrine  to  a  contract  executory  and  as  yet  unfulfilled. 

From  these  cases  I  draw  the  conclusion  that  upon  the  ground  of 
public  policy  the  continued  existence  of  contractual  relation  between 
subjects  and  alien  enemies  or  persons  voluntarily  residing  in  the  en- 
emy country  which  (1)  gives  opportunities  for  the  conveyance  of  in- 
formation which  may  hurt  the  conduct  of  the  war,  or  (2)  may  tend 
to  increase  the  resources  of  the  enemy  or  cripple  the  resources  of  the 
king's  subjects,  is  obnoxious  and  prohibited  by  our  law.  I  do  not  quote 
the  recent  dicta  of  learned  judges  in  the  cases  already  cited  of  Porter 


602  RIGHTS  AND   DUTIES   OF  NATIONS   IN   TIME   OP   WAR         (Part  3 

[1915]  1  K.  B.  857,  Robson  [1915]  2  Ch.  124,  and  Zinc  Corporation 
[1916]  1  K.  B.  541,  because,  although  they  are  to  the  same  effect  and 
I  agree  with  them,  the  recent  cases  are  in  one  sense  submitted  in  this 
case  to  the  review  of  your  Lordships'  House.   • 

Let  me  now  apply  this  rule  to  clause  15  on  the  hypothesis  that  it 
does  suspend  delivery  during  the  war.  But  for  it  the  contract  would 
immediately  end,  by  it  the  contract  is  kept  alive,  and  that  not  for  the 
purpose  of  making  good  rights  already  accrued,  but  for  the  purpose 
of  securing  rights  in  the  future  by  the  maintenance  of  the  commercial 
relation  in  the  present.  It  hampers  the  trade  of  the  British  subject, 
and  through  him  the  resources  of  the  kingdom.  For  he  cannot,  in 
view  of  the  certainly  impending  liability  to  deliver  (for  the  war  can- 
not last  forever),  have  a  free  hand  as  he  otherwise  would.  He  must 
either  keep  a  certain  large  stock  undisposed  of,  and  thus  unavailable  for 
the  needs  of  the  kingdom,  or,  if  he  sells  the  whole  of  the  present  stock, 
he  cannot  sell  forward,  as  he  would  be  able  to  do  if  he  had  not  the 
large  demand  under  the  contract  impending.  It  increases  the  resources 
of  the  enemy,  for  if  the  enemy  knows  that  he  is  contractually  sure  of 
getting  the  supply  as  soon  as  war  is  over,  that  not  only  allows  him  to 
denude  himself  of  present  stocks,  but  it  represents  a  present  value  which 
may  be  realized  by  means  of  assignation  to  neutral  countries. 

For  these  reasons  I  come  to  the  conclusion  that  clause  15  is  void 
as  against  public  policy  and  cannot  receive  effect.  Without  clause  15 
there  is  an  obvious  necessity  for  intercourse,'  and  the  contract  is  there- 
fore avoided  as  a  whole.  I  am  of  opinion  that  the  appeal  should  be 
dismissed  with  costs.     *     *     *  lo 


HOARE  V.  ALLEN  et  al. 

(Supreme  Court  of  Pennsylvania,  1789.    2  Dall.  102,  1  L.  Ed.  307.) 

This  was  a  scire  facias  on  a  mortgage  given  on  the  4th  of  December, 
1773,  for  securing  the  payment  of  £16,000  sterling,  with  interest.  It 
was  tried  at  Chester,  nisi  prius,  on  the  4th  May,  1789,  before  the 
Chief  Justice  [McKean],  Atlee  and  Bryan,  Justices;  when  it  appeared 
that  the  plaintiff  was  a  British  subject,  resident  in  London;  that  Amos 
Strettle  was  his  attorney  in  fact,  at  the  time  of  the  execution  of  the 

10  Esposito  V.  Bowden,  cited  in  the  text,  is  a  leading  case  on  the  subject  of 
trading  with  the  enemy,  in  which  English  authorities  are  enumerated  and 
analyzed.    In  the  course  of  his  opinion  Mr.  Justice  Willes  said: 

"It  is  now  fully  established  that,  the  presumed  object  of  war  being  as  much 
to  cripple  the  enemy's  commerce  as  to  capture  his  property,  a  declaration  of 
war  imports  a  prohibition  of  commercial  intercourse  and  correspondence  with 
the  iu'habitants  of  the  enemy's  country,  and  that  such  intercourse,  except  with 
the  license  of  the  crown,  is  illegal.  *  *  *  As  to  the  mode  of  operation  of 
war  upon  contracts  of  affreightment,  made  before,  but  which  remain  unexpect- 
ed at,  the  time  it  is  declared,  and  of  which  it  makes  the  further  execution  un- 
lawful or  impossible,  the  authorities  establish  that  the  effect  is  to  dissolve  the 
contract,  and  to  absolve  both  parties  from  further  performance  of  it.  7  Ellis 
&  BL,  763,  779,  783  (1857). 


Ch.  6)  PRIVATE   RIGHTS  AND   CONTRACTS  603 

mortgage  and  after ;  but  it  did  not  .appear,  whether  he  continued  to 
act  as  such  subsequently  to  the  war.     He  resided  in  the  State  till  his 

death,  which  was  about .    The  question  that  was  made  in  this 

cause  was,  whether  interest  should  run  during  the  war?     *     *     * 

By  THTJ  Court.  This  action  is  brought  on  a  mortgage  for  £16,000, 
payable  on  4th  December,  1774.  No  suit  could  be  brought  on  the 
mortgage  before  the  4th  December,  1775.  Before  that  period  the  war 
commenced,  and  on  the  10th  September,  1775,  the  Congress  prohibited 
the  exportation  of  commodities,  etc.,  to  Great  Britain,  or  any  of  her 
dominions.  This  was  obligatory  on  their  constituents,  and  it  became 
unlawful  to  make  any  remittances  after  this  to  the  enemy.  During 
a  war  all  civil  actions  between  enemies  are  suspended;  debts  are  sus- 
pended also,  but  restored  by  the  peace.  For  the  term  of  seven  and  a 
half  years,  viz.,  from  the  10th  September,  1775,  to  the  10th  March, 
1783,  the  defendant  could  not  have  paid  this  money  to  the  plaintiff, 
who  was  an  alien  enemy  without  a  violation  of  the  positive  laws  of  this 
country  and  of  the  laws  of  nations.  They  ought  not,  therefore,  to  suf- 
fer for  their  moral  conduct,  and  their  submission  to  the  laws. 

Interest  is  paid  for  the  use  or  forbearance  of  money.  But  in  the 
case  before  us,  there  could  be  no  forbearance ;  because  the  plaintiff 
could  not  enforce  the  payment  of  the  principal ;  nor  could  the  defend- 
ants pay  him,  consistent  with  law ;  nor  could  they  pay  it  without  go- 
ing into  the  enemy's  country,'  where  the  plaintiff'  was.  Where  a  per- 
son is  prevented,  by  law,  from  paying  the  principal,  he  shall  not  be 
compelled  to  pay  interest  during  the  prohibition,  as  in  the  case  of  a 
garnishee,  in  a  foreign  attachment. 

It  is  urged,  that  a  remittance  in  bills  of  exchange  furnished  the  en- 
emy with  no  money.  Yet,  it  is  clear  that  it  would  furnish  the  enemy 
with  the  means  of  carrying  on  the  war,  within  the  bowels  of  the  coun- 
try, without  bringing  any  money  into  it.  It  is  well  known  that  the 
bills  drawn  by  the  British  army  were  the  principal  bills  that  were 
bought  and  sold;  those  drawn  by  American  citizens  were  generally 
protested. 

It  has  been  said  that  it  might  have  been  paid  to  Strettle;  but  that 
depended  upon  his  pleasure,  whether  he  chose  to  act  as  attorney  or 
not. 

I  have  searched  for  precedents  both  in  the  civil  law,  and  in  the 
books  of  reports;  but  could  find  none.  We,  therefore,  determine  on 
principle  and  analogy,  and  are  unanimously  of  opinion,  that  the  plain- 
tiff is  not  entitled  to  interest  from  the  10th  September,  1775,  to  10th 
March,  1783 ;  but  during  the  rest  of  the  time  he  must  be  allowed  full 
interest. 

The  jury  adopted  the  principles  of  the  charge;  but  struck  off  seven 
and  a  half  years'  interest.^^ 

II  In  the  Interesting  case  of  Foxcraft  &  Galloway  v.  Nagle,  2  Dall.  132,  1 
L.  Ed.  319  (1791),  it  appeared  that  Joseph  Galloway,  the  distinguished  Ameri- 


604  BIGHTS  AND   DUTIES   OF  NATIONS  IN  TIME   OF  WAR         (Part  3 

GRISWOLD  V.  WADDINGTON. 
(Court  of  Errors  of  New  York,  1819.    16  Johns.  438.) 

Before  the  breaking  out  of  the  war  between  the  United  States  and 
England,  in  1812,  Joshua  Waddington,  an  American  citizen  residing 
in  New  York,  and  Henry  Waddington,  a  British  subject  residing  in 
London,  were  partners  in  a  commercial  business.  During  the  war, 
N.  L/.  and  G,  Griswold  had  transactions  with  J.  Waddington,  in  the 
United  States.  After  the  close  of  the  war,  the  Griswolds  sued  to  re- 
cover a  balance  of  account  arising  out  of  those  transactions ;  and 
their  contention  was  that  H.  Waddington,  the  London  partner,  was 
liable  for  the  debt.^^ 

This  cause  came  before  this  court,  on  a  writ  of  error  to  the  Su- 
preme Court.     S.  c.  15  Johns.  57.     *     *     * 

The  Chancellor  [Kent].  The  plaintiffs  sue  for  the  balance  due 
upon  an  account  current  stated  and  signed  by  Henry  Waddington,  at 
London,  on  the  1st  of  January,  1815.  This  account  current  is  com- 
posed of  mercantile  transactions,  arising  during  the  year  1814,  and 
consists,  on  the  debit  side,  of  cash  paid,  and  of  portage  and  commis- 
sion charges ;  and  on  the  credit  side,  of  cash  and  bills  received  from 
or  on  behalf  of  the  plaintiffs.  This  H.  W.'  was  a  natural  born  sub-' 
ject  of  the  king  of  Great  Britain,  and  had  not  been  in  the  United 
States  since  the  year  1798 ;  he  was  married  and  settled  in  London, 
and  had  a  commercial  establishment  there;  and,  during  the  year  1814, 
was  in  great  credit,  and  carried  on  very  large  business.  The  plain- 
tiffs, on  the  other  hand,  were  citizens  of  the  United  States,  residing  in 
the  city  of  New  York;  and  one  of  them,  in  July,  1813,  went  to  Eng- 
land in  the  cartel  ship  Robert  Burns,  without  the  production  and  with- 
out the  requisite  evidence  of  any  passport  from  our  government.  He 
entered  himself  on  the  ship's  papers  as  a  steward,  and  told  a  witness 
that  he  was  going  out  in  that  capacity.  He  returned  to  the  United 
States,  in  May  or  June,  1814.  While  in  England,  he  was  at  the  count- 
ing-house of  H.  W.,  and  promised  him  to  make  good  the  balance  of 
his  account,  and  which  was  soon  done  by  the  cash  credited  in  the  ac- 
count current,  as  of  the  28th  of  February,  1814. 

can  loyalist,  was  with  the  enemy  (British  Army)  while  it  was  in  Philadelphia, 
and  that  Nagle,  the  defendant,  then  lived  within  three  miles  of  the  city  and 
might,  therefore,  have  gone  in  and  come  out  at  pleasure  (had  such  not  been 
expressly  forbidden  by  statute).     On  these  facts  and  allegations  it  was  held: 

"By  the  Court:  It  has  been  frequently  settled,  that  the  debt  being  sus- 
pended during  the  war,  no  interest  could  arise  upon  it.  *  *  *  If  the  plain- 
tiffs mean  to  make  it  a  point,  they  will  have  an  opportunity  so  to  do,  at  the  re- 
turn of  the  postea.  We  are  all  of  opinion,  however,  that  the  interest  during 
the  war  should  be  deducted;  that  is  for  seven  and  a  half  years.  Verdict  ac- 
cordinsrly." 

See,  also,  Thomas  v.  Hunter,  29  Md.  406  (1868) ;  Roberts  v.  Cocke,  28  Grat. 
(Va.)  207  (1877) ;    McVeigh  v.  Bk.  of  Old  Dominion,  26  Grat.  (Va.)  188  (1S75). 

12  Short  statement  substituted  for  that  of  the  report  and  part  of  the 
opinion  is  omitted. 


Ch.  6)  PRIVATE   RIGHTS  AND   CONTRACTS  605 

It  must  be  fresh  in  the  recollection  of  all,  that  during  the  years 
1813  and  1814,  there  was  open  war  between  England  and  the  United 
States.  The  plaintiffs,  therefore,  on  the  face  of  their  demand,  admit 
that  the  contract  which  they  now  attempt  to  enforce,  was  made  by 
them  voluntarily  with  one  of  the  public  enemies  of  their  country,  in 
time  of  war.  However,  writers  or  judges  may  differ,  as  to  the  nature 
or  kind  of  unlicensed  intercourse,  which  may  be  tolerated  or  endured, 
in  time  of  war,  between  the  subjects  of  the  hostile  states,  we,  in  this 
case,  are  relieved  from  the  necessity  of  drawing  distinctions.  The 
intercourse  in  this  case  was  commercial.  The  account  current,  and 
every  part  of  the  testimony,  show  that  the  dealing  here  was  between 
commercial  houses,  and  with  commercial  paper.  For  what  this  pa- 
per was  originally  given,  is  not  disclosed.  Some  of  it  was  British  gov- 
ernment paper,  and  we  may  well  presume  that  these  bills  were  the 
representative  of  commercial  products,  either  in  the  shape  of  goods, 
or  provisions,  or  other  materials,  which  the  parties  have  not  found  it 
convenient,  or  not  found  themselves  competent  to  trace. 

The  great  question,  then,  meets  us  at  the  very  threshold  of  this 
case.  Will  our  courts  sustain  a  suit  in  favor  of  a  citizen  on  his  con- 
tract made  with  an  enemy,  and  arising  out  of  his  commerce  with  the 
enemy  in  time  of  war? 

The  plaintiffs  seek  to  charge  the  defendant  as  a  partner  of  H.  W., 
with  whom  they  so  dealt  in  1814.  They  contend  that  the  partnership 
which  existed  between  the  defendant  and  H.  W.,  before  the  late  war, 
was,  in  judgment  of  law,  continued  in  force  during  the  war,  from  the 
want  of  due  notice  of  its  dissolution,  and  that  the  defendant  is  charge- 
able for  all  the  debts  of  H.  W.,  created  during  the  war.     *     *     * 

But  before  we  discuss  the  question  touching  the  obligation  of  the 
defendant  as  a  partner,  we  must  determine  whether  the  law  will  raise 
a  promise,  or  permit  the  plaintiffs  to  recover  upon  an  account  stated 
with  an  alien  enemy  in  war,  and  composed  of  commercial  transactions 
had  between  them  during  the  war.  If  I  do  not  entirely  deceive  myself, 
it  is  settled,  ypon  principles  of  public  policy,  and  declared  by  the  law 
of  nations,  by  the  law  of  England,  and  by  the  law  of  this  country, 
that  no  such  promise  can  be  raised,  and  no  such  action  can  be  sus- 
tained. 

On  the  18th  of  June,  1812,  Congress  by  law  declared,  that  war  ex- 
isted between  the  United  Kingdom  of  Great  Britain  and  Ireland  and 
the  United  States.  This  was  not  a  war  confined  to  the  two  govern- 
ments or  bodies  politic,  in  their  political  or  corporate  capacity.  Every 
man  is,  in  judgment  of  law,  a  party  to  the  acts  of  his  own  govern- 
ment ;  and  war  existed  between  all  the  individuals  of  the  one,  and  all 
the  individuals  of  which  the  other  nation  was  composed.  Govern- 
ment is  the  representative  of  the  wills  of  all  the  people.  This  is  the 
theory  in  all  governments,  and  the  matter  of  fact  in  all  free  govern- 
ments. The  war  was,  therefore,  declared  by  the  united  will  of  the 
people  of  the  United  States,  and  there  can  be  no  doubt  of  its  being  a 


606  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   WAR         (Part  3 

moral,  as  well  as  a  civil  duty,  in  every  individual,  to  obey  the  law. 
This  is  the  sound  and  fundamental  .principle  of  civil  government. 
Every  American  citizen  and  every  British  subject  resident  in  their  re- 
spective countries,  became,  by  the  declaration  of  war,  enemies  to  each 
other;  and  the  idea  that  any  commercial  intercourse  or  pacific  deal- 
ing could  lawfully  subsist  between  them,  without  the  clear  and  ex- 
press sanction  of  the  government,  is  utterly  inconsistent  with  the  new 
class  of  duties  growing  out  of  a  state  of  war.  The  point  would  ap- 
pear to  rest  on  the  obvious  dictates  of  reason,  as  well  as  the  plainest 
deductions  of  public  policy.  If  individuals  could  carry  on  a  friendly 
intercourse  while  the  government  was  at  war,  the  act  of  government 
and  the  acts  of  individuals  would  be  contradictory.  The  will  of  one 
or  of  a  few  would,  as  far  as  the  example  went,  contravene  the  declared 
will  of  the  whole.  Such  a  principle  is  certainly  the  parent  of  disor- 
der ;  it  inculcates  contempt  of  law ;  it  throws  obstacles  in  the  way  of 
the  public  efforts,  and  it  contains  within  itself  the  germ  of  treason  and 
rebellion. 

But  on  a  question  of  such  grave  and  vital  importance,  I  must  beg 
the  indulgence  of  the  court,  while  I  examine  the  authorities,  in  order 
to  discover  what  are  the  correct  opinions  and  decisions  of  the  enlight- 
ened -part  of  mankind.     *     *     * 

I  have  thus  given  the  question  arising  on  the  legality  of  the  contract 
on  which  this  suit  is  brought,  the  fullest  consideration  in  my  power; 
and  I  have  arrived  with  entire  satisfaction  at  the  conclusion,  that  it 
is  an  unlawful  cont^ract,  and  cannot  be  sustained  in  a  court  of 
law.     *     5^     * 

I  now  conclude  that,  as  the  contract  in  this  case  was  founded  upon 
dealings  during  the  late  war,  between  the  plaintiffs,  who  were  resident 
citizens  of  the  United  States,  and  Henry  W.,  who  was  a  natural  born, 
and  a  resident  subject  of  Great  Britain,  it  was  an  unlawful  contract, 
and  cannot  be  enforced  in  the  courts  of  this  country. 

In  this  view  of  the  subject,  it  becomes  unnecessary  to  discuss  the  oth- 
er point  in  the  cause,  whether  the  defendant  was,  or  was  not,  a  partner 
with  Henry  W.  during  the  war.  The  intercourse  and  trading  were 
not  with  him,  but  with  the  enemy  partner,  and  he  could  not  be  bound 
by  a  contract  which  was,  null  and  void  when  made  by  his  partner. 

But  as  the  other  point  was  largely  discussed  upon  the  argument,  and 
was,  indeed,  the  only  one  upon  which  the  decision  of  the  Supreme 
Court  was  placed,  and  as  I  cannot  know  how  far  it  may  be  deemed 
material  by  other  members  of  this  court,  I  feel  it  to  be  my  duty  to  ex- 
press an  opinion  also  upon  that  point. 

It  appears  to  me,  that  the  declaration  of  war  did,  of  itself,  work  a 
dissolution  of  all  commercial  partnerships,  existing  at  the  time,  be- 
tween British  subjects  and  American  citizens.  By  dealing  with  either 
party,  no  third  person  could  acquire  a  legal  right  against  the  other, 
because  one  alien  enemy  cannot,  in  that  capacity,  make  a  private  con- 
tract binding  upon  the  other.     This  conclusion  would  seem  to  be  an 


Ch.  6)  PRIVATE   RIGHTS   AND   CONTRACTS  607 

inevitable  result  from  the  new  relations  created  by  the  war.  It  is  a 
necessary  consequence  of  the  other  proposition,  that  it  is  unlawful  to 
have  communication  or  trade  with  an  enemy.  To  suppose  a  com- 
mercial partnership  (such  as  this  was)  to  be  continued,  and  recognized 
by  law  as  subsisting,  when  the  same  law  had  severed  the  subjects  of 
the  two  countries,  and  declared  them  enemies  to  each  other,  is  to  sup- 
pose the  law  chargeable  with  inconsistency  and  absurdity.  For  what 
use  or  purpose  could  the  law  uphold  such  a  connection,  when  all  fur- 
ther intercourse,  communication,  negotiation,  or  dealing  between  the 
partners,  was  prohibited,  as  unlawful?  Why  preserve  the  skeleton 
of  the  firm,  when  the  sense  and  spirit  of  it  has  fled,  and  when  the 
execution  of  any  one  article  of  it  by  either,  would  be  a  breach  of  his 
allegiance  to  his  country?  In  short,  it  must  be  obvious  to  every  one, 
that  a  state  of  war  creates  disabilities,  imposes  restraints,  and  exacts 
duties  altogether  inconsistent  with  the  continuance  of  that  relation. 
Why  does  war  dissolve  a  charter  party,  or  a  commercial  contract  for 
a  particular  voyage?  Because,  says  Valin  (torn.  1,  p.  626),  the  war 
interposes  an  insurmountable  obstacle  to  the  accomplishment  of  the 
contract ;  and  this  obstacle  'arising  from  a  cause  beyond  the  control 
of  the  party,  it  is  very  natural,  he  observes,  that  the  charter  party 
should  be  dissolved,  as  of  course.  Why  should  the  contract  of  part- 
nership continue  by  law,  when  equally  invincible  obstacles  are  created 
by  law  to  defeat  it?  If  one  alien  enemy  can  go  on  and  bind  his  hos- 
tile partner,  by  contracts  in  time  of  war,  when  the  other  can  have  no 
agency,  consultation,  or  control  concerning  them,  the  law  would  be 
as  unjust  as  it  would  be  extravagant.  The  good  sense  of  the  thing 
as  applicable  to  this  subject,  is  the  rule  prescribed  by  the  Roman  law, 
that  a  copartnership  in  any  business  ceased,  when  there  was  an  end 
put  to  the  business  itself.  "Item  si  alicujus  rei  societas  sit,  et  finis 
negotio  impositus  est,  finitur  societas."    Inst.  3,  26,  6. 

The  doctrine,  that  war  does  not  interfere  with  private  contracts,  is 
not  to  be  carried  to  an  extent  inconsistent  with  the  rights  of  war. 
Suppose  that  H.  &  J.  W.  had  entered  into  a  contract  before  the  war, 
which  was  to  continue  unfil  1814,  by  which  one  of  them  was  to  ship, 
half  yearly,  to  London,  consigned  to  the  other,  a  cargo  of  provisions, 
and  the  other,  in  return,  to  ship  to  New  York  a  cargo  of  goods.  The 
war  which  broke  out  in  1812,  would  surely  have  put  an  end  to  the 
further  operation  of  this  contract,  lawful  and  innocent  as  it  was  when 
made.  No  person  could  raise  a  doubt  on  this  point;  and  what  sanc- 
tity or  magic  is  there  in  a  contract  of  copartnership,  that  it  must  not 
yield  to  the  same  power  ? 

If  we  examine,  more  particularly,  the  nature  and  objects  of  com- 
mercial partnerships,  it  would  seem  to  be  contrary  to  all  the  rules  by 
which  they  are  to  be  construed  and  governed,  that  they  should  con- 
tinue to  exist,  after  the  parties  are  interdicted,  by  the  government, 
from  any  communication  with  each  other,  and  are  placed  in  a  state 
of  absolute  hostilitv.     It  is  of  the  essence  of  the  contract  that  each 


608  RIGHTS  AND   DUTIES   OP  NATIONS   IN  TIME  OF   WAR         (Part  3 

party  should  contribute  something  valuable,  as  money,  or  goods,  or 
skill  and  labor,  on  joint  account,  and  for  the  common  benefit;  and 
that  the  object  of  the  partnership  should  be  lawful  and  honest  busi- 
ness. Watson  on  Partnership,  pp.  5-7;  Code  Civil,  No.  1833;  Po- 
thier,  Traite  du  Contrat  de  Societe,  No.  1,  8,  10,  11,  14;  Ferriere 
sur  Inst.  3,  26.  But  how  can  the  partners  have  any  unity  of  inter- 
est, or  any  joint  object  that  is  lawful,  when  their  pursuits,  in  conse- 
quence of  the  war,  and  in  consequence  of  the  separate  allegiance 
which  each  owes  to  his  own  government,  must  be  mutually  hostile? 
The  commercial  business  of  each  country,  and  of  all  its  people,  is  an 
object  of  attack,  and  of  destruction  to  the  other.  One  party  may  be 
engaged  in  privateering,  or  in  supplying  the  fleets  and  armies  of  his 
country  with  provisions,  or  with  munitions  of  war ;  and  can  the  law 
recognize  the  other  partner  as  having  a  joint  interest  in  the  profits 
of  such  business?  It  would  be  impossible  for  the  one  partner  to  be 
concerned  in  any  commercial  business,  which  was  not  auxiliary  to  the 
resources  and  efforts  of  his  country  In  a  maritime  war.  And  shall 
the  other  partner  be  lawfully  drawing  a  revenue  from  such  employ- 
ment of  capital,  and  such  personal  services  directed  against  his  own 
country  ? 

We  cannot  contemplate  such  a  confusion  of  obligation  between  the 
law  of  partnership  and  the  law  of  war,  or  such  a  conflict  between  his 
interest  as  a  partner,  and  his  duty  as  a  patriot,  without  a  mixture  of 
astonishment  and  dread.  Shall  it  be  said  that  the  partnership  must  be 
deemed  to  be  abridged  during  war,  to  business  that  is  altogether  in- 
noxious and  harmless?  But  I  would  ask,  How  can  we  cut  down  a 
partnership  in  that  manner  without  destroying  it?  The  very  object 
of  the  partnership,  in  this  case,  was,  no  doubt,  commercial  business 
between  England  and  the  United  States,  and  which  the  hostile  state 
of  the  two  countries  interdicted ;  or  it  may  have  been  business  in  which 
the  personal  communication  and  advice  of  each  partner  was  deemed 
essential,  and  without  which  the  partnership  would  not  have  been 
formed.  It  is  one  of  the  principles  of  the  law  of  partnership,  that  it 
is  dissolved  by  the  death  of  any  one  of  its  members,  however  numer- 
ous the  association  may  be ;  and  the  reason  is  this :  the  personal  qual- 
ities of  each  partner  enter  into  the  consideration  of  the  contract,  and 
the  survivors  ought  not  to  be  held  bound  without  a  new  assent,  when, 
perhaps,  the  character  of  the  deceased  partner  was  the  inducement  to 
the  connection.  Pothier,  Traite  du  Contrat  de  Societe,  No.  146 ;  Inst. 
3,  26,  5 ;  Vinnjus,  h.  t.  Shall  we  say  that  the  partnership  continues, 
during  the  war,  in  a  quiescent  state,  and  that  the  hostile  partners  do 
not  share  in  each  other's  profits,  made  in  carrying  on  the  hostile  com- 
merce of  each  country?  It  would  be  then  most  unjust  to  make  the 
party  who  did  not  share  in  profit  to  share  in  loss,  and  to  be  bound  by 
the  other's  contracts ;  but  if  one  partner  does  not  share  in  profit,  that 
alone  destroys  a  partnership.  It  would  be  what  the  Roman  lawyers 
call  "societas  leonina,"  in  allusion  to  the  fable  of  the  lion,  who,  hav- 


Ch.  6)  PRIVATE   RIGHTS   AND   CONTRACTS  609 

ing  entered  into  a  partnership  with  the  other  animals  of  the  forest  in 
hunting  appropriated  to  himself  all  the  prey.  Dig.  17,  2,  29,  s.  2; 
Pothier,  Traite  du  Cont.  de  Soc.  n.  12. 

It  is  one  of  the  fundamental  principles  of  every  commercial  part- 
nership, that  each  partner  has  the  power  to  buy  and  sell,  and  pay  and 
receive,  and  to  contract  and  bind  the  firm.  But  then,  again,  as  a  nec- 
essary check  to  this  power,  each  partner  can  interfere  and  stop  any 
contract  about  to  be  made  by  any  one  of  the  rest.  This  is  an  elemen- 
tary rule,  derived  from  the  civil  law.  "In  re  pari  potiorem  causam 
esse  prohibentis  constat."  Pothier,  Traite  de  Cont.  de  Soc.  n.  90. 
But  if  the  partnership  continues  in  war  between  hostile  associates,  this 
salutary  power  is  withdrawn,  and  each  partner  is  left  defenceless.  If 
the  law  continues  the  connection,  after  it  has  destroyed  the  check,  the 
law  is  then  cruel  and  unjust. 

In  speaking  of  the  dissolution  of  partnerships,  the  French  and  civil 
law  writers  say,  that  partnerships  are  dissolved  by  a  change  of  the  con- 
dition of  one  of  the  parties  which  disables  him  to  perform  his  part  of 
the  duty,  as  by  a  loss  of  liberty,  or  banishment,  or  bankruptcy,  or  a 
judicial  prohibition  to  execute  his  business,  or  by  confiscation  of  his 
goods.  Inst.  3.  26.  s.  7.  8;  Vinnius,  h.  t.  3.  26.  4;  Huberus  in  Inst, 
lib.  3.  tit.  26.  s.  6;  Dig.  17.  2.  65;  Pothier,  Cont.  de  Soc.  n.  147,  148; 
Code  Civil,  No.  1865 ;  Diet,  du  Dig.  par  Thevenot  Dessaules,  Art. 
Societe,  No.  56.  The  English  law  of  partnership  is  derived  from  the 
same  source;  and  as  the  cases  arise,  the  same  principles  are  applied. 
The  principle  here  is,  that  when  one  of  the  parties  becomes  disabled  to 
act  or  when  the  business  of  the  association  becomes  impracticable,  the 
law  as  well  as  common  reason,  adjudges  the  partnership  to  be  dissolved. 

Pothier,  in  his  treatise  on  Partnership,  says,  that  every  partnership 
is  dissolved  by  the  extinction  of  the  business  for  which  it  was  formed. 
This  he  illustrates,  in  his  usual  manner,  by  a  number  of  easy  and  fa- 
miliar examples. 

Thus,  if  a  partnership  be  formed  between  two  or  more  persons,  for 
bringing  together,  and  selling  on  joint  account,  the  produce  of  their 
farms,  or  of  their  live  stock,  and  the  produce  or  the  stock  of  one  of 
them  should  happen  to  fail,  or  be  destroyed,  tlie  partnership  ceases  of 
course,  for  there  can  be  no  longer  any  partnership,  when  one  has  noth- 
ing to  contribute.  So,  if  two  persons  form  a  partnership  in  a  particu- 
lar business,  and  the  one  engages  to  furnish  capital,  or  the  raw  ma- 
terials, and  the  other  his  skill  and  labor,  and  the  latter  becomes  dis- 
abled by  the  palsy,  the  partnership  is  extinguished,  because  the  object 
of  the  partnership  cannot  be  fulfilled.  So,  again,  if  two  or  more  per- 
sons form  a  partnership  to  buy  and  sell  goods  at  a  particular  place,  the 
partnership  is  dissolved,  whenever  the  business  is  terminated.  Pothier, 
Traite  du  Cont.  de  Soc.  No.  140-143.  "Extincto  subject©,  tollitur  ad- 
junctum,"  is  the  observation  of  Huberus,  when  speaking  on  this  very 
point. 

Scott  Int. Law— 39  v 


610  RIGHTS  AND   DUTIES  OF  NATIONS   IN  TIME  OF  WAR         (Part  3 

We  can  easily  perceive  with  what  force  their  doctrines  apply  to 
this  case,  for  a  partnership,  formed  between  alien  friends,  must  at  once 
be  defeated,  when  they  become  alien  enemies.  They  can  no  more  as- 
sist each  other  than  if  they  were  palsied  in  their  limbs,  or  bereft  of 
their  understandings,  by  the  visitation  of  Providence.  I  have  selected 
these  principles  of  partnership  from  the  treatise  of  Pothier,  because  his 
reputation  and  great  authority  are  known  in  this  country.  He  has 
treated  of  the  law  of  partnership,  as  he  has  of  other  civil  contracts, 
with  a  clearness  of  perception,  a  precision  of  style,  and  a  fullness  of 
illustration,  above  all  praise,  and  beyond  all  example.  If  it  should  be 
asked.  Why  is  Pothier  silent,  like  the  EngUsh  law,  concerning  the  ef- 
fect of  war  on  a  partnership  between  the  subjects  of  the  two  belliger- 
ent states?  The  answer  may  be  given,  that  the  possibility  of  such  a 
question  never  could  have  occurred  to  a  French  lawyer,  since  it  has 
been  the  law  of  France,  for  ages,  that  all  intercourse,  communication 
and  commerce,  between  the  subjects  of  France  and  her  enemies,  was 
prohibited,  upon  pain  of  death. 

A  good  deal  of  stress  was  laid  by  the  counsel  for  the  plaintiffs,  upon 
the  affidavit  of  the  defendant,  made  on  the  9th  of  March,  1813,  in 
which  he  speaks  of  the  firms  of  J.,  W.  &  Co.  and  of  H.  W.  &  Co.,  as 
then  existing.  But  I  think,  that  the  criticism  is  susceptible  of  a  satis- 
factory explanation. 

Mr.  Ogden,  who  drew  the  affidavit,  says,  that  he  had  no  particular 
instructions  from  the  defendant,  and  that  his  attention  was  called  to  the 
persons  composing  the  firms,  in  relation  only  to  the  subject-matter 
of  the  petition.  It  is,  therefore,  exceedingly  probable,  that  the  atten- 
tion of  the  party  in  making  the  affidavit,  was  not  specially  drawn  to  the 
fact  of  the  continuance  of  the  partnership  down  to  that  day,  because 
that  was  not  a  point  material  to  the  object  of  the  petition.  Those  who 
are  obliged  to  examine  long  complicated  bills  and  answers  upon  oath, 
cannot  but  know,  that  we  are  to  look  to  the  object  and  purport  of  the 
pleading,  and  are  not  to  hold  responsible  the  conscience  of  the  party, 
for  a  mistake  or  error,  (perhaps  in  grammatical  expression,)  in  some 
immaterial  part  of  the  document.  There  is  no  doubt,  that  here  was, 
upon  the  construction  of  the  affidavit,  a  mistake  in  point  of  fact.  The 
partnership  of  H.  W.  &  Co.  did  not  continue,  in  the  common  meaning 
of  the  term,  down  to  the  9th  of  March;  for,  by  the  letter  of  H.  W. 
of  the  9th  of  January  preceding,  he  speaks  of  the  actual  dissolution  of 
the  partnership,  and  says,  that  "a  proper  line  was  struck  in  the  books 
and  cash,  and  that  the  defendant  was  no  longer  interested  in  any  losses 
or  profits  on  that  side." 

There  is  another  circumstance  in  the  case  that  is  important.  The 
goods  imported  were  by  the  firm  of  J.  W.  &  Co.,  and  the  firm  of  H, 
W.  &  Co.  was  a  distinct  one,  not  consisting  of  the  same  persons,  and  had 
no  concern  with  that  shipment.  The  mention  of  the  firm  of  H.  W.  & 
Co.  (and  which  is  the  only  firm  involved  in  the  present  case)  was  alto- 

ScoTT  Int.Law 


Ch.  6)  PRIVATE   RIGHTS  AND   CONTRACTS  611 

gather  unnecessary  in  the  affidavit,  and  was  mere  surplusage.  How 
unreasonable,  then,  would  it  be,  to  draw  an  unfavorable  inference 
against  the  rights  of  a  party,  from  such  a  mistake  in  an  immaterial 
part  of  a  paper?  But  in  another  sense,  and,  indeed,  in  the  true  sense, 
in  respect  to  the  object  of  the  petition  and  affidavit,  the  assertion  was 
true,  and  a  partnership  was  then  existing.  The  parties  were  still  part- 
ners as  to  those  goods  which  had  been  actually  purchased  by  them  be- 
fore the  war,  and  the  parties,  as  partners,  were  bound  to  account  to 
each  other  for  the  proceeds  of  those  goods,  and  equally  bound,  as  part- 
ners, to  pay  for  them,  if  not  already  paid  for.  A  dissolution  of  a 
partnership  only  has  respect  to  the  future.  The  parties  remain  bound 
for  all  antecedent  engagements.  The  partnership  may  be  said  to  con- 
tinue as  to  every  thing  that  is  past,  and  until  all  pre-existing  matters  are 
wound  up  and  settled.  In  Wood  v.  Bradick,  1  Taunt.  104,  it  was  ob- 
served by  one  of  the  judges,  that  when  a  partnership  is  dissolved,  it 
is  not  dissolved  with  regard  to  things  past,  but  only  with  regard  to 
things  future.  With  regard  to  things  past,  the  partnership  continues, 
and  always  must  continue.  In  reference,  therefore,  to  the  subject  to 
which  the  affidavit  applied,  they  were  still  partners,  bound  to  account, 
and  bound  to  pay,  as  partners,  for  that  shipment. 

And  after  all,  what  has  the  intention  of  the  defendant  to  do  with  the 
question  before  us?  If  the  law  holds  all  partnerships  in  war  between 
vthe  subjects  of  the  hostile  states  unlawful,  it  was  not  in  the  power  of 
the  parties  to  create,  or  to  continue,  a  partnership,  in  defiance  of  law. 
Suppose  two  or  more  persons  enter  into  a  partnership,  or  convert  an 
old  partnership  to  unlawful  purposes,  as,  for  instance,  to  9arry  on  a 
contraband  trade,  or  to  commit  piratical  depredations,  under  some  Mex- 
ican flag,  would  the  law  regard  such  an  association?  Nothing  can  be 
plainer  than  the  proposition,  that  if  parties  could  not  lawfully  form, 
or  carry  on  commercial  business  together,  during  the  war,  every  agree- 
ment for  such  a  purpose  would  be  null  and  void. 

Another  objection  was  raised,  from  the  want  of  notice  of  the  dis- 
solution of  the  partnership.  The  answer  to  this  is  extremely  easy, 
and  perfectly  conclusive.  Notice  is  requisite  when  a  partnership  is  dis- 
solved by  the  act  of  the  parties,  but  it  is  not  necessary  when  the  dis- 
solution takes  place  by  the  act  of  the  law.  The  declaration  of  war, 
from  the  time  it  was  duly  made  known  to  the  nations,  put  an  end  to 
all  future  dealings  between  the  subjects  and  citizens  of  the  two  coun- 
tries, and,  consequently,  to  the  future  operation  of  the  copartnership  in 
question.  The  declaration  of  war  was,  of  itself,  the  most  authentic 
and  monitory  notice.  Any  other  notice,  in  a  case  like  this,  between  two 
public  enemies,  who  had  each  his  domicil  in  his  own  country,  would 
have  been  useless.  All  mankind  were  bound  to  take  notice  of  the  war, 
and  of  its  consequence.  The  notice,  if  given,  could  only  be  given  by 
each  partner  in  his  own  country ;  and  there  it  would  be  useless,  as  his 
countrymen  could  not  hold  any  lawful  intercourse  with  the  enemy.    It 


612  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3" 

could  not  be  given  as  a  joint  act,  for  the  pai:tners  cannot  lawfully  com- 
mune together. 

But  it  was  said  that  the  peace  had  a  healing  influence,  and  restored 
the  parties  to  all  their  rights,  and  arrested  all  confiscations,  and  forfei- 
tures, which  had  not  previously  and  duly  attached.  I  do  not  know  that 
I  differ  from  the  counsel  in  any  just  application  of  this  doctrine.  As 
far  as  the  war  suspended  the  right  of  action  existing  in  the  adverse 
party  prior  to  the  war,  that  right  revived ;  but  if  the  contract  in  this 
case  was  unlawful,  peace  could  not  revive  it,  for  it  never  had  any  legal 
existence.  So,  too,  the  copartnership  being  once  dissolved  by  the  war, 
it  was  extinguished  forever,  except  as  to  matters  existing  prior  to  the 
war. 

There  are  no  cases  in  the  English  books  exactly  in  point,  because  the 
case  of  the  validity  of  an  existing  partnership  between  the  subjects  of 
two  belligerent  powers,  does  not  appear  ever  to  have  been  raised.  The 
presumption,  I  think,  is  that  it  has  been  deemed  too  difficult  a  prop- 
osition to  be  even  hazarded.  As  far  as  any  connection  with  the  enemy, 
by  any  contrivance,  or  under  any  cloak  or  pretension,  has  been  dis- 
covered, the  courts  in  England,  and  in  this  country,  have  been  sharp 
and  vigilant  to  detect  and  to  punish  it.  Thus,  in  the  case  of  The  Vigi- 
lantia,  1  Rob.  1,  it  was  decided,  that  if  a  person  concerned  in  a  house 
of  trade,  in  an  enemy's  country,  in  time  of  war,  he  shall  not  protect 
himself  by  mere  residence  in  a  neutral  country.  The  traffic  stamps  a  * 
national  character  on  the  individual.  So,  though  the  managing  part- 
ner resided  in  a  neutral  country,  yet  the  property  belonging  to  the 
partners  in  England,  was,  by  the  English  admiralty,  condemned,  because 
the  transaction  was,  as  to  them,  illegal,  though  it  was  done  without 
their  immediate  privity  or  direction.  Case  of  the  Sampsons,  cited  in  the 
case  of  The  Franklin,  6  Rob.  127.  So,  where  a  trade  was  carried  '6n 
with  the  enemy  by  a  house  composed  partly  of  neutrals,  and  partly 
of  British  subjects,  Sir  Wm.  Scott  held  (The  Franklin,  6  Rob.  127) 
that  the  sleeping  British  partner  could  not  be  lawfully  concerned  in  a 
transaction,  in  which  he  could  not  be  engaged  as  a  sole  trader.  He 
could  not  do  by  a  partner  or  agent,  what  he  could  not  do  by  himself. 
In  short,  it  is  already  settled,  that  a  subject,  of  one  belligerent  cannot 
be  concerned  in  any  commercial  establishment  among  the  subjects  of 
the  other,  without  being  deemed  an  enemy,  in  reference  to  such  a  con- 
cern. Nor  can  he  be  concerned  in  any  such  trade,  indirectly  or  cir- 
cuitously,  through  the  intervention  of  a  neutral  port,  or  through  the 
agency  of  third  persons.  The  Jonge  Pieter,  4  Rob.  79 ;  The  Samuel, 
4  Rob.  284;  The  Rugen,  1  Wheat.  74,  4  L.  Ed.  Z7.  And  to  avoid  all 
imposition  or  difficulty,  as  to  the  national  character  of  a  party,  it  is 
settled,  that  the  domicil,  or  fixed  residence,  of  the  party  at  the  com- 
mencement of  the  war,  determines  his  character  for  the  war.  The 
Venus,  8  Cranch,  253,  3  L.  Ed.  553 ;  The  Indian  Chief,  3  Rob.  26.  It 
appears,  also,  to  have  been  very  recently  decided  by  the  Supreme  Court 


Ch.  6)  PRIVATE   RIGHTS   AND   CONTRACTS  613 

of  the  United  States  (if  we  may  rely  on  the  information  just  received)/* 
that  if  a  house  of  trade  be  established  in  the  enemy's  country,  and  one 
of  the  partners  resides  in  a  neutral  country,  his  share,  as  well  as  that 
of  his  copartner,  resident  in  the  enemy's  country,  is  liable  to  condemna- 
tion, as  prize  of  war. 

These  cases  lead  us  to  the  conclusion,  that  the  defendant  could  not 
have  any  concern  whatever,  directly  or  indirectly,  in  any  trade  or  com- 
merce of  H.  W.  during  the  war,  without  involving  his  property  in  the 
penalty  of  an  illicit  connection.  How  is  it  possible,  then,  that  any 
partnership  could  legally  subsist?  If  the  partnership  property  of  one 
partner  be  subject  to  capture  by  the  other  partner,  and  if  the  joint 
property  be  subject  to  capture  by  the  subjects  of  either  power,  noth- 
ing can  place  in  a  more  striking  light  the  absurdity,  as  well  as  illegality, 
of  any  partnership  between  two  belligerents  in  time  of  war. 

Having  thus  endeavored  to  show  the  law  to  be  settled,  that  the  con- 
tract in  this  case,  made  with  H.  W.  was  unlawful,  and,  consequently, 
not  binding  on  the  defendant,  even  if  he  had  been  a  partner ;  and  it 
also  appearing  to  me,  that  the  partnership  existing  before  the  war,  was, 
from  reason  and  necessity,  dissolved  by  the  act  of  war,  it  follows, 
that,  upon  either  ground  the  judgment  of  the  Supreme  Court  ought  to 
be  affirmed.     *     *     *  i4 


HANGER  V.  ABBOTT. 
(Supreme  Court  of  the  United  States,  1SG7.    6  Wall.   532,  IS  L.  Ed.  939.) 

Error  to  the  Circuit  Court  for  the  Eastern  District  of  Arkansas. 

J.  &  E.  Abbott,  of  New  Hampshire,  sued  Hanger,  of  Arkansas,  in 
assumpsit.  The  latter  pleaded  the  statute  of  limitations  of  Arkansas, 
which  limits  such  action  to  three  years.  The  former  replied  the  re- 
bellion, which  broke  out  after  the  cause  of  action  accrued,  and  closed 
for  more  than  three  years  all  lawful  courts.  On  demurrer,  and  judg- 
ment against  it,  and  error  to  this  court,  the  question  here  was,  simply, 
whether  the  time  during  which  the  courts  in  Arkansas  were  closed  on 
account  of  the  rebellion,  was  to  be  excluded  from  the  computation  of 
time  fixed  by  the  Arkansas  statute  of  limitations  within  which  suits 
on  contracts  were  to  be  brought,  there  being  no  exception  by  the  terms 
of  the  statute  itself  for  any  such  case.^^     *     *     * 

•Mr.  Justice  Clifford  delivered  the  opinion  of  the  court. 

The  declaration  was  in  assumpsit,  and  the  plaintiffs  alleged  that 
the  defendant,  on  the  tenth  day  of  April,  1865,  was  indebted  to  them 

13  The  case  here  alhulea  to,  is  that  of  the  Friendschaft,  decided  February 
25,  1S19,  and  since  reported.    4  Wheat.  105.  4  L.  Ed.  525. 

14  In  Matthews  v.  McStea,  91  U.  S.  7,  23  L.  Ed.  ISS  (1S75),  the  question  of 
the  effect  of  war  on  a  partnership  was  considered,  and  it  was  held  that  under 
the  circumstances  of  this  case,  the  partnership  was  not  dissolved. 

IB  Only  selected  extracts  are  given  from  the  opinion  of  the  learned  justice. 


614  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF    WAR         (Part  3 

for  divers  goods,  wares,  and  merchandise,  and  also  for  money  had  and 
received,  in  the  sum  of  ten  thousand  dollars.     *     *     * 

Proclamation  of  blockade  was  made  by  the  President  on  the  nine- 
teenth day  of  April,  1861,  and,  on  the  thirteenth  day  of  July,  in  the 
same  year,  Congress  passed  a  law  authorizing  the  President  to  inter- 
dict all  trade  and  intercourse  between  the  inhabitants  of  the  States  in 
insurrection  and  the  rest  of  the  United  States.  12  Stat,  at  Large, 
1258,  257. 

War,  when  duly  declared  or  recognized  as  such  by  the  war-making 
power,  imports  a  prohibition  to  the  subjects,  or  citizens,  of  all  com- 
mercial intercourse  and  correspondence  with  citizens  or  persons  domi- 
ciled in  the  enemy  country.^*  Upon  this  principle  of  pubHc  law  it 
is  the  established  r-ule  in  all  commercial  nations,  that  trading  with  the 
enemy,  except  under  a  government  license,  subjects  the  property  to 
confiscation,  or  to  capture  and  condemnation.^' 

Partnership  with  a  foreigner  is  dissolved  by  the  same  event  which 
makes  him  an  alien  enemy,  because  there  is  in  that  case  an  utter  in- 
compatibility created  by  operation  of  law  between  the  partners  as  to 
their  respective  rights,  duties,  and  obligations,  both  public  and  private, 
which  necessarily  dissolves  the  relation,  independent  of  the  will  or 
acts  of  the  parties.^*  Direct  consequence  of  the  rule  as  established  in 
those  cases  is,  that  as  soon  as  war  is  commenced  all  trading,  negotia- 
tion, communication,  and  intercourse  between  the  citizens  of  one  of 
the  belhgerents  with  those  of  the  other,  without  the  permission  of  the 
government,  is  unlawful.  No  valid  contract,  therefore,  can  be  made, 
nor  can  any  promise  arise  by  implication  of  law,  from  any  transac- 
tion with  an  enemy.  Exceptions  to  the  rule  are  not  admitted ;  and 
even  after  the  war  has  terminated,  the  defendant,  in  an  action  found- 
ed upon  a  contract  made  in  violation  of  that  prohibition,  may  set  up 
the  illegality  of  the  transaction  as  a  defence.^*     *     *     * 

Executory  contracts  also  with  an  alien  enemy,  or  even  with  a  neu- 
tral, if  they  cannot  be  performed  except  in  the  way  of  commercial  in- 
tercourse with  the  enemy,  are  dissolved  by  the  declaration  of  war, 
which  operates  for  that  purpose  with  a  force  equivalent  to  an  act  of 
Congress.  Esposito  v.  Bowden,  4  El.  &  El.  963 ;  same  case,  7  El. 
&  Bl.  778. 

In  former  times  the  right  to  confiscate  debts  was  admitted  as  an 
acknowledged  doctrine  of  the  law  of  nations,  and  in  strictness  it  may 
still  be  said  to  exist,  but  it  may  well  be  considered  as  a  naked  and  im- 

18  The  William  Basraley,  5  Wall.  405,  18  L.  Ed.  583  (1866);  Jecker  et  al.  v. 
Montgomery,  18  How.  Ill,  15  L.  Ekl.  311  (1855) ;  Wheaton  on  Maritime  Cap- 
tures, 209. 

17  The  Rapid,  8  Cranch,  155,  3  L.  Ed.  520  (1814);  The  Hoop,  1  Rob.  196 
(1799). 

isMaclachlan  on  Shipping,  475:  Story  on  Partnership,  §  316;  Griswold  v. 
Waddington,  15  Johns.  (N.  Y.)  57  (1818)  ;    Id.  16  Johns.  (N.  Y.)  438  (1819). 

18  Williamson  v.  Patterson,  7  Taunton,  439. 


Ch.  6)  PRIVATE   RIGHTS   AND   CONTRACTS  615 

politic  right,  condemned  by  the  enlightened  conscience  and  judgment 
of  modern  times.^"  Better  opinion  is  that  executed  contracts,  such 
as  the  debt  in  this  case,  although  existing  prior  to  the  war,  are  not 
annulled  or  extinguished,  but  the  remedy  is  only  suspended,  which  is 
a  necessary  conclusion,  on  account  of  the  inability  of  an  alien  enemy 
to  sue  or  to  sustain,  in  the  language  of  the  civilians,  a  persona  standi 
in  judicio.    1  Kent's  Com.  (11  Ed.)  76;  Flint  v.  Waters,  15  East,  260. 

Trading,  which  supposes  the  making  of  contracts,  and  which  also 
involves  the  necessity  of  intercourse  and  correspondence,  is  neces- 
sarily contradictory  to  a  state  of  war,  but  there  is  no  exigency  in  war 
which  requires  that  belligerents  should  confiscate  or  annul  the  debts 
due  by  the  citizens  of  the  other  contending  party.     *     *     * 

Under  the  thirty-fourth  section  of  the  Judiciary  Act,  the  statutes 
of  limitations  of  the  several  states,  where  no  special  provision  has 
been  made  by  Congress,  form  the  rule  of  decision  in  the  courts  of  the 
United  States,  and  the  same  effect  is  given  to  them  as  is  given  in  the 
courts  of  the  state.^^     *     *     * 

When  our  ancestors  immigrated  here,  they  brought  with  them  the 
statute  of  21  Jac.  I,  c.  16,  entitled  "An  act  for  limitation  of  actions, 
and  for  avoiding  of  suits  in  law,"  known  as  the  statute  of  limita- 
tions.    *     *     * 

Persons  within  the  age  of  twenty-one  years,  femes  covert,  non  com- 
pos mentis,  persons  imprisoned  or  beyond  the  seas,  were  excepted  out 
of  the  operation  of  the  third  section  of  the  act,  and  were  allowed  the 
same  period  of  time  after  such  disability  was  removed.  Just  excep- 
tions indeed  are  to  be  found  in  all  such  statutes,  but  when  examined 
it  will  appear  that  they  were  framed  to  prevent  injustice  and  never 
to  encourage  laches  or  to  promote  negligence.  Cases  where  the  courts 
of  justice  are  closed  in  consequence  of  insurrection  or  rebellion  are 
not  within  the  express  terms  of  any  such  exception,  but  the  statute  of 
limitations  was  passed  in  1623,  more  than  a  century  before  it  came  to 
be  understood  that  debts  due  to  alien  enemies  were  not  subject  to  con- 
fiscation. Down  to  1737,  says  Chancellor  Kent,  the  opinion  of  jur- 
ists was  in  favor  of  the  right  to  confiscate,  and  many  maintained  that 
such  debts  were  annulled  by  the  declaration  of  war.  Regarding  such 
debts  as  annulled  by  war,  the  law-makers  of  that  day  never  thought 
of  making  provision  for  the  collection  of  the  same  on  the  restoration 
of  peace  between  the  belligerents.  Commerce  and  civilization  have 
wrought  great  changes  in  the  spirit  of  nations  touching  the  conduct 
of  war,  and  in  respect  to  the  principles  of  international  law  applicable 
to  the  subject. 

Constant  usage  and  practice  of  belligerent  nations  from  the  earliest 
time  subjected  enemy's  goods  in  neutral  vessels  to  capture  and  con- 

20  Kent's  Com.  (11th  Ed.)  73. 

21  Anfrell  on  Limitations,  §  24;  McCluny  v.  Silliman,  3  Pet.  270,  7  L.  Ed. 
676  (1830);  Bank  of  United  States  v.  Daniel,  12  Pet.  32,  9  L/  Ed.  9S9  (1S38) ; 
Porterfield  v.  Clark,  2  How.    125,  11  L.  Ed.  185  (1844). 


616  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (PaitS 

demnation  as  prize  of  war,  but  the  maxim  is  now  universally  acknowl- 
edged that  "free  ships  make  free  goods"  which  is  another  victory  of 
commerce  over  the  feelings  of  avarice  and  revenge.  Individual  debts, 
as  a  general  remark,  are  no  longer  the  subject  of  confiscation,  and  the 
rule  is  universally  admitted  that  if  not  confiscated  during  the  war,  the 
return  of  peace  brings  with  it  both  "the  right  and  the  remedy."  Wolff 
v.  Oxholm,  6  Maule  &  Selwyn,  92.     *     *     * 

Old  decisions,  made  when  the  rule  of  law  was  that  war  annulled 
all  debts  between  the  subjects  of  the  belligerents,  are  entitled  to  but 
little  weight,  even  if  it  is  safe  to  assume  that  they  are  correctly  re- 
ported, of  which,  in  respect  to  the  leading  case  of  Prideaux  v.  Webber, 
1  Levinz,  31,  there  is  much  doubt.  Miller  v.  Prideaux,  1  Keble,  157; 
Lee  v.  Rogers,  1  Levinz,  110;  Hall  v.  Wybourne,  2  Salkeld,  420;  Au- 
brey v.  Fortescue,  10  Modern,  205,  are  of  the  same  class,  and  to  the 
same  effect.  All  of  those  decisions  were  made  between  parties  who 
were  citizens  of  the  same  jurisdiction,  and  most  of  them  were  made 
nearly  a  hundred  years  before  the  international  rule  was  acknowl- 
edged, that  war  only  suspended  debts  due  to  an  enemy,  and  that  peace 
had  the  effect  to  restore  the  remedy.  The  rule  of  the  present  day  is, 
that  debts  existing  prior  to  the  war,  but  which  made  no  part  of  the 
reasons  for  undertaking  it,  remain  entire,  and  the  remedies  are  re- 
vived with  the  restoration  of  peace.^^     *     *     * 

Text  writers  usually  say,  on  the  authority  of  the  old  cases  referred 
to,  that  the  non-existence  of  courts,  or  their  being  shut,  is  no  answer 
to  the  bar  of  the  statute  of  limitations,  but  Plowden  says  that  things 
happening  by  an  invincible  necessity,  tliough  they  be  against  common 
law,  or  an  act  of  Parliament,  shall  not  be  prejudicial,  that,  therefore, 
to  say  that  the  courts  were  shut,  is  a  good  excuse  on  voucher  of  rec- 
ord. Exceptions  not  mentioned  in  the  statutes  have  sometimes  been 
admitted,  and  this  court  held  that  the  time  which  elapsed  while  cer- 
tain prior  proceedings  were  suspended  by  appeal,  should  be  deducted, 
as  it  appeared  that  the  injured  party  in  the  meantime  had  no  right  to 
demand  his  money,  or  to  sue  for  the  recovery  of  the  same;  and  in 
view  of  those  circumstances,  the  court  decided  that  his  right  of  action 
had  not  accrued  so  as  to  bar  it,  although  not  commenced  within  six 
years.    Montgomery  v.  Hernandez,  12  Wheat.  129,  6  L.  Ed.  575. 

But  the  exception  set  up  in  this  case  stands  upon  much  more  solid 
reasons,  as  the  right  to  sue  was  suspended  by  the  acts  of  the  govern- 
ment, for  which  all  the  citizens  are  responsible.  Unless  the  rule  be 
so,  then  the  citizens  of  a  state  may  pay  their  debts  by  entering  into  an 
insurrection  or  rebellion  against  the  government  of  the  Union,  if 
they  are  able  to  close  the  courts,  and  to  successfully  resist  the  laws, 
until  the  bar  of  the  statute  becomes  complete,  which  cannot  for  a 
moment  be  admitted.  Peace  restores  the  right  and  the  remedy,  and 
as  that  cannot  be  if  the  limitation  continues  to  run  during  the  period 

22  1  Kent's  Com.  (11th  Ed.)  169 ;   Grotius,  B.  3,  c.  20,  §§  16-18. 


Ch.  6)  PRIVATE   RIGHTS   AND   CONTRACTS  617 

the  creditor  is  rendered  incapable  to  sue,  it  necessarily  follows  that 
the  operation  of  the  statute  is  also  suspended  during  the  same  pe- 
riod.    *     *     * 

Judgment  affirmed  with  costs. 


NEW  YORK  LIFE  INSURANCE  CO.  v.  STATHAM  et  al. 

SAME  V.  SEYMS. 
MANHATTAN  LIFE  INSURANCE  CO.  v.  BUCK,  Executor. 
(Supreme  Court  of  the  United  States,  1876.    93  U.  S.  24,  23  L.  Ed.  789.) 

The  first  of  these  cases  is  here  on  appeal  from,  and  the  second  and 
third  on  writs  of  error  to,  the  Circuit  Court  of  the  United  States  for 
the  Southern  District  of  Mississippi. 

The  first  case  is  a  bill  in  equity,  filed  to  recover  the  amount  of  a 
policy  of  life  assurance,  granted  by  the  defendant  (now  appellant)  in 
1851,  on  the  life  of  Dr.  A.  D.  Statham,  of  Mississippi,  from  the  pro- 
ceeds of  certain  funds  belonging  to  the  defendant  attached  in  the 
hands  of  its  agent  at  Jackson,  in  that  state.  It  appears  from  the  state- 
ments of  the  bill  that  the  annual  premiums  accruing  on  the  policy 
were  all  regularly  paid,  until  the  breaking  out  of  the  late  civil  war, 
but  that,  in  consequence  of  that  event,  the  premium  due  on  the  8th  of 
December,  1861,  was  not  -paid;  the  parties  assured  being  residents  of 
Mississippi,  and  tlie  defendant  a  corporation  of  New  York.  Dr.  Stat- 
ham died  in  July,  1862.     *     *     *     [The  other  cases  are  similar.] 

Each  policy  contained  various  conditions,  upon  the  breach  of  which 
it  was  to  be  null  and  void ;  and  amongst  others  the  following :  "That 
in  case  the  said  [assured]  shall  not  pay  the  said  premium  on  or  before 
the  several  days  hereinbefore  mentioned  for  the  payment  thereof, 
then  and  in  every  such  case  the  said  company  shall  not  be  liable  to  the 
payment  of  the  sum  insured,  or  in  any  part  thereof,  and  this  policy 
shall  cease  and  determine."  The  Manhattan  policy  contained  the  addi- 
tional provision,  that,  in  every  case  where  the  policy  should  cease  or 
become  null  and  void,  all  previous  -payments  made  thereon  should  be 
forfeited  to  the  company. 

The  non-payment  of  the  premiums  in  arrear  was  set  up  in  bar  of 
the  actions ;  and  the  plaintiffs  respectively  relied  on  the  existence  of 
the  war  as  an  excuse,  offering  to  deduct  the  premiums  in  arrear  from 
the  amounts  of  the  policies.^^ 

The  decree  and  judgments  below  were  against  the  defend- 
ants.    *     *  ■  * 

Mr.  Justice  Bradley,,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

28  The  statement  of  facts  is  shortened  and  part  of  the  opinion  is  omitted. 


618  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAPw         (Part  3 

We  agree  with  the  court  below,  that  the  contract  is  not  an  assurance 
for  a  single  year,  with  a  privilege  of  renewal  from  year  to  year  by  pay- 
ing the  annual  premium,  but  that  it  is  an  entire  contract  of  assurance 
for  life,  subject  to  discontinuance  and  forfeiture  for  non-payment  of 
any  of  the  stipulated  premiums.  Such  is  the  form  of  the  contract, 
and  such  is  its  character.  *  *  *  Each  instalment  is,  in  fact,  part 
consideration  of  the  entire  insurance  for  life.  It  is  the  same  thing, 
where  the  annual  premiums  are  spread  over  the  whole  life.     *     *     * 

The  case,  therefore,  is  one  in  which  time  is  material  and  of  the  es- 
sence of  the  contract.  Non-payment  at  the  day  involves  absolute  for- 
feiture, if  such  be  the  terms  of  the  contract,  as  is  the  case  here.  Courts 
cannot  with  safety  vary  the  stipulation  of  the  parties  by  introducing 
equities  for  the  relief  of  the  insured  against  their  own  negligence. 

But  the  court  below  bases  its  decision  on  the  assumption  that,  when 
performance  of  the  condition  becomes  illegal,  in  consequence  of  the 
prevalence  of  public  war,  it  is  excused,  and  forfeiture  does  not  ensue. 
It  supposes  the  contract  to  have  been  suspended  during  the  war,  and 
to  have  revived  with  all  its  force  when  the  war  ended.  Such  a  sus- 
pension and  revival  do  take  place  in  the  case  of  ordinary  debts.  But 
have  they  ever  been  known  to  take  place  in  the  case  of  executory  con- 
tracts in  which  time  is  material?  If  a  Texas  merchant  had  contracted 
to  furnish  some  Northern  explorer  a  thousand  cans  of  preserved  meat 
by  a  certain  day,  so  as  to  be  ready  for  his  departure  for  the  North 
Pole,  and  was  prevented  from  furnishing  it  by  the  civil  war,  would 
the  contract  still  be  good  at  the  close  of  the  war  five  years  afterwards, 
and  after  the  return  of  the  expedition?  If  the  proprietor  of  a  Ten- 
nessee quarry  had  agreed,  in  1860,  to  furnish,  during  the  two  follow- 
ing years,  ten  thousand  cubic  feet  of  marble,  for  the  construction  of 
a  building  in  Cincinnati,  could  he  have  claimed  to  perform  the  con- 
tract in  1865,  on  the  ground  that  the  war  prevented  an  earlier  per- 
formance ? 

The  truth  is,  that  the  doctrine  of  the  revival  of  contracts  suspend- 
ed during  the  war  is  one  based  on  considerations  of  equity  and  jus- 
tice, and  cannot  be  invoked  to  revive  a  contract  which  it  would  be 
unjust  or  inequitable  to  revive. 

In  the  case  of  life  insurance,  besides  the  materiality  of  time  in  the 
performance  of  the  contract,  another  strong  reason  exists  why  the 
policy  should  not  be  revived.  The  parties  do  not  stand  on  equal 
ground  in  reference  to  such  a  revival.  It  would  operate  most  unjust- 
ly against  the  company.  The  business  of  insurance  is  founded  on  the 
law  of  averages;  that  of  life  insurance  eminently  so.  The  average 
rate  of  mortality  is  the  basis  on  which  it  rests.  By  spreading  their 
risks  over  a  large  number  of  cases,  the  companies  calculate  on  this 
average  with  reasonable  certainty  and  safety.  Anything  that  inter- 
feres with  it  deranges  the  security  of  the  business.  If  every  policy 
lapsed  by  reason  of  the  war  should  be  revived,  and  all  the  back  pre- 


Ch.  6)  PRIVATE   RIGHTS   AND   CONTRACTS  619 

miums  should  be  paid,  the  companies  would  have  the  benefit  of  this 
average  amount  of  risk.  But  the  good  risks  are  never  heard  from; 
only  the  bad  are  sought  to  be  revived,  where  the  person  insured  is 
either  dead  or  dying.  Those  in  health  can  get  new  policies  cheaper 
than  to  pay  arrearages  on  the  old.  To  enforce  a  revival  of  the  bad 
cases,  whilst  the  company  necessarily  lose  the  cases,  which  are  desir- 
able, would  be  manifestly  unjust.  An  injured  person,  as  before  stat- 
ed, does  not  stand  isolated  and  alone.  His  case  is  connected  with  ajid 
correlated  to  the  cases  of  all  others  insured  by  the  same  company. 
The  nature  of  the  business,  as  a  whole,  must  be  looked  at  to  under- 
stand the  general  equities  of  the  parties. 

We  are  of  opinion,  therefore,  that  an  action  cannot  be  maintained 
for  the  amount  assured  on  a  policy  of  life-insurance  forfeited,  like 
those  in  question,  by  non-payment  of  the  premium,  even  though  the 
payment  was  prevented  by  the  existence  of  the  war. 

The  question  then  arises.  Must  the  insured  lose  all  the  money  which 
has  been  paid  for  premiums  on  their  respective  policies?  If  they 
must,  they  will  sustain  an  equal  injustice  to  that  which  the  companies 
would  sustain  by  reviving  the  policies.  At  the  very  first  blush,  it 
seems  manifest  that  justice  requires  that  they  should  have  some  com- 
pensation or  return  for  the  money  already  paid,  otherwise  the  com- 
panies would  be  the  gainers  from  their  loss ;  and  that  from  a  cause 
for  which  neither  party  is  to  blame.  The  case  may  be  illustrated  thus : 
Suppose  an  inhabitant  of  Georgia  had  bargained  for  a  house,  situat- 
ed in  a  Northern  city,  to  be  paid  for  by  instalments,  and  no  title  to 
be  made  until  all  the  instalments  were  paid,  with  a  condition  that  op 
the  failure  to  pay  any  of  the  instalments  when  due,  the  contract  should 
be  at  an  end,  and  the  previous  payments  forfeited;  and  suppose  that 
this  condition  was  declared  by  the  parties  to  be  absolute  and  the  time 
of  payment  material.  Now,  if  some  of  the  instalments  were  paid  be- 
fore the  war,  and  others  accruing  during  the  war  were  not  paid,  the 
contract,  as  an  executory  one,  was  at  an  end.  If  the  necessities  of  the 
vendor  obliged  him  to  avail  himself  of  the  condition,  and  to  resell  the 
property  to  another  party,  would  it  be  just  for  him  to  retain  the  mon- 
ey he  had  received?  Perhaps  it  might  be  just  if  the  failure  to  pay 
had  been  voluntary,  or  could  by  possibility,  have  been  avoided.  But 
it  was  caused  by  an  event  beyond  the  control  of  either  party, — an 
event  which  made  it  unlawful  to  pay.  In  such  case,  whilst  it  would 
be  unjust,  after  the  war,  to  enforce  the  contract  as  an  executory  one 
against  the  vendor  contrary  to  his  will,  it  would  be  equally  unjust  in 
him,  treating  it  as  ended,  to  insist  upon  the  forfeiture  of  the  money 
already  paid  on  it.  An  equitable  right  to  some  compensation  or  re- 
turn for  previous  payments  would  clearly  result  from  the  circum- 
stances of  the  case.  The  money  paid  by  the  purchaser,  subject  to  the 
value  of  any  possession  which  he  may  have  enjoyed,  should,  ex  oequo 
et  bono,  be  returned  to  him.  This  would  clearly  be  demanded  by  jus- 
tice and  right. 


620  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

And  so,  in  the  present  case,  whilst  the  insurance  company  has  a 
right  to  insist  on  the  materiahty  of  time  in  the  condition  of  payment 
of  premiums,  and  to  hold  the  contract  ended  by  reason  of  non-pay- 
ment, they  cannot  with  any  fairness  insist  upon  the  condition,  as  it 
regards  the  forfeiture  of  the  premiums  already  paid;  that  would  be 
clearly  unjust  and  inequitable.  The  insured  has  an  equitable  right  to 
have  this  amount  restored  to  him,  subject  to  a  deduction  for  the  value 
of  the  assurance  enjoyed  by  him  whilst  the  policy  was  in  existence; 
in  other  words,  he  is  fairly  entitled  to  have  the  equitable  value  of  his 
policy.     *     *     * 

We  are  of  opinion,  therefore,  first,  that  as  the  companies  elected  to 
insist  upon  the  condition  in  these  cases,  the  policies  in  question  must 
be  regarded  as  extinguished  by  the  non-payment  of  the  premiums, 
though  caused  by  the  existence  of  the  war,  and  that  an  action  will  not 
lie  for  the  amount  insured  thereon. 

Secondly,  that  such  failure  being  caused  by  a  public  war,  without 
the  fault  of  the  assured,  they  are  entitled  ex  oequo  et  bono  to  recover 
the  equitable  value  of  the  policies  with  interest  from  the  close  of  the 


war. 


*     *     * 


In  estimating  the  equitable  value  of  a  policy,  no  deduction  should 
be  made  from  the  precise  amount  which  the  calculations  give,  as  is 
sometimes  done  where  policies  are  voluntarily  surrendered,  for  the 
purpose  of  discouraging  such  surrenders ;  and  the  value  should  be 
taken  as  of  the  day  when  the  first  default  occurred  in  the  payment  of 
the  premium  by  which  the  policy  became  forfeited.  In  each  case  the 
•ates  of  mortality  and  interest  used  in  the  tables  of  the  company  will 
form  the  basis  of  the  calculation. 

The  decree  in  the  equity  suit  and  the  judgments  in  the  actions  at 
law  are  reversed,  and  the  causes  respectively  remanded  to  be  proceed- 
ed with  according  to  law  and  the  directions  of  this  opinion.     *     *     * 

Mr.  Justice  Clifford,  with  whom  concurred  Mr.  Justice  Hunt,  dis- 
senting : 

Where  the  parties  to  an  executory  money-contract  live  in  different 
countries,  and  the  governments  of  those  countries  become  involved  in 
public  war  with  each  other,  the  contract  between  such  parties  is  sus- 
pended during  the  existence  of  the  war,  and  revives  when  peace  en- 
sues; and  that  rule,  in  my  judgment,  is  as  applicable  to  the  contract 
of  life-insurance  as  to  any  other  executory  contract.  Consequently, 
I  am  obliged  to  dissent  from  the  opinion  and  judgment  of  the  court 
in  these  cases.^* 

24  In  New  York  Life  Ins.  Co.  v.  Davis,  95  U.  S.  425,  4.33,  24  L.  Ed.  453 
(1877),  the  facts  were  the  same,  except  that  the  Insurance  Company  had  an 
agent  in  the  Confederacy'  to  whom  the  insured,  a  major  in  the  Confederate 
service,  vainly  tendered  the  premium  as  it  fell  due.  Under  the  circumstances, 
the  court,  following  the  principal  decision,  said  per  Mr.  Justice  Bradley: 

"We  do  not  mean  to  say  that,  if  the  defendant  had  continued  its  authority 
to  the  agent  to  act  in  the  receipt  of  premiums  during  the  war,  and  he  had 
done  so,  a  payment  or  tender  to  him  in  lawful  money  of  the  United  States 


Ch.  6)  PRIVATE   RIGHTS   AND   CONTRACTS  621 

would  not  have  been  valid ;  nor  that  a  stipulation  to  continue  such  authority 
in  case  of  war,  made  before  its  occurrence,  would  not  have  been  a  valid  stipu- 
lation; nor  that  a  policy  of  life  insurance  on  which  no  premiums  were  to  be 
paid,  though  suspended  during  the  war,  might  not  have  revived  after  its 
close.  We  place  our  decision  simply  on  the  ground  that  the  agency  of  Gar- 
land was  terminated  by  the  breaking  out  of  the  war,  and  that,  although  by 
the  consent  of  the  parties  it  might  have  been  continued  for  the  purpose  of 
receiving  payments  of  premiums  during  the  war,  there  is  no  proof  that  such 
assent  was  given,  either  by  the  defendant  or  by  Garland;  but  that,  on  the 
contrary,  the  proof  is  positive  and  uncontradicted,  that  Garland  declined  to 
act  as  agent." 

In  the  course  of  its  opinion,  the  court  considered  and  approved  as  authori- 
ties for  payment  to  agents  in  an  enemy's  country:  Conn  v.  Penn.,  Pet.  C. 
C.  496,  Fed.  Cas.  No.  3,104  (1818),  the  leading  authority;  Denniston  v. 
Imbrie,  3  Wash.  C.  O.  396,  Fed.  Cas.  No.  3,S02  (1818) ;  Buchanan  v.  Curry, 
19  Johns.  137,  10  Am.  Dec.  200  (1821) ;  Ward  v.  Smith,  7  Wall.  447,  19  L. 
Ed.  207  (1868) ;  Brown  v.  Hiatts,  15  Wall.  177.  21  L.  Kd.  128  (1872) ;  Mont- 
gomery v.  U.  S.,  15  Wall.  395,  21  L.  Ed.  97  (1872) ;  Fretz  v.  Stover,  22  Wall. 
198,  22  L.  Ed.  769  (1874). 

In  regard  to  the  influence  of  war  on  life  insurance  policies  it  may  be  said 
that  three  essentially  distinct  views  have  been  held  by  courts  of  last  resort, 
and  reference  is  made  to  Abell  v.  Penn.  Mutual  Life  Ins.  Co.,  18  W.  Va.  400, 
42.3-435  (1881),  for  their  enumeration,  and  criticism  of  the  authorities  cited. 

In  Semmes  v.  Hartford  Ins.  Co.,  13  Wall.  158,  20  L.  Ed.  490  (1871),  the 
action  was  upon  a  policy  of  fire  insurance  containing  the  express  stipula- 
tion that  no  suit  should  be  sustainable  thereunder  unless  brought  within 
twelve  months  after  the  loss  or  damage  occurred.  The  Civil  War  broke  out 
during  the  twelve  months  within  which  the  suit  should  and  no  doubt  would 
have  been  brought.  As  it  was  impossible  to  bring  suit  during  the  war,  this 
condition  was  not  performed.  It  was  held  by  the  court  that  the  condition 
was  entire  and  not  divisible  ;  that  as  performance  became  impossible  by  opera- 
lion  of  law,  the  assured  was  entirely  released  from  the  obligation  of  bringing 
suit  within  the  twelve  months ;  that  the  action  could,  therefore,  be  maintain- 
ed at  any  time  within  the  statute  of  limitations.  In  other  words,  war  su.s- 
pends  but  does  not  extinguish  conditions  of  a  contract,  so  that  on  the  return 
of  peace  the  entire  conventional  stipulation  as  regards  time  revives  as  of 
right.  In  case  of  a  statutory  limitation  within  which  the  suit  may  or  must 
be  brought,  the  period  during  which  the  courts  were  closed  by  reason  of  war 
is  deducted  and  the  plaintiff  is  given  the  balance  of  time  to  bring  the  action 
which  the  war  prevented  him  from  doing.  See  Wambaugh,  A  Selection  of 
Cases  on  Insurance  (1902)  651,  note,  for  an  exhaustive  citation  of  adjudged 
cases. 


622  RIGHTS  AND  DUTIES  OF   NATIONS  IN  TIME  OF  WAE         (Part  3 

CHAPTER  VII 
INTERCOURSE  BETWEEN  BELLIGERENTS 


SECTION  L— GENERAL  PROHIBITION  * 


THE  HOOP. 

(High  Court  of  Admiralty,  1799.    1  C.  Rob.  196.) 

This  was  a  case  of  a  claim  of  several  British  merchants  for  goods 
purchased  on  their  account  in  Holland,  and  shipped  on  board  a  neu- 
tral vessel. 

The  affidavit  annexed  to  the  claim  set  forth,  that  Mr.  Malcolm  of 
Glasgow,  and  several  other  merchants  of  North  Britain,  had,  long 
prior  to  hostilities,  been  used  to  trade  extensively  with  Holland,  in 
the  importation  of  various  articles  of  the  produce  of  Holland,  which 
were  particularly  wanted  for  the  use  of  Glasgow,  and  essentially  nec- 
essary to  the  agriculture  and  manufacture  of  that  part  of  the  king- 
dom ;  that,  after  the  irruption  of  the  French  into  Holland,  they  had 
constantly  applied  for,  and  obtained  special  orders  of  his  majesty  in 
council,  permitting  them  to  continue  that  trade;  that  after  the  pass- 
ing of  the  acts  of  Parliament,  35  Geo.  Ill,  c.  15,^  and  80;    36  Geo. 

1  In  Small's  Adm'r  v.  Lumpkin's  Ex'x  et  al.,  28  Grat.  832,  834,  835  (1877), 
decided  by  the  Court  of  Appeals  of  Virginia  in  1877,  Judge  Burks  said: 

"In  a  foreign  or  international  war.  from  the  time  it  is  declared  or  recogniz- 
ed, all  the  people  in  the  territory  and  subject  to  the  dominion  of  each  belliger- 
ent, without  regard  to  their  feelings,  dispositions  or  natural  relations,  be- 
come, in  legal  contemplation,  and  so  continue  to  the  close  of  hostilities,  the 
enemies  of  all  the  people  resident  in  the  territory  of  the  other  belligerent ; 
and  all  negotiation,  trading,  intercourse  or  communication  between  them,  un- 
less licensed  by  the  government,  is  unlawful.  Such  a  war,  as  between  the 
citizens  or  subjects  of  the  respective  belligerents,  ipso  facto  dissolves  all  com- 
mercial partnerships,  and  all  contracts  wholly  executory  and  requiring  for  their 
continued  existence  commercial  intercourse  or  communication ;  and  while  it 
does  not  abrogate,  yet  it  suspends  all  other  existing  contracts  and  obligations 
and  the  remedies  thereon,  and  renders  all  contracts,  with  rare  exceptions, 
entered  into  pending  hostilities,  illegal  and  void. 

"These  familiar  principles  of  public  law,  regulating  conduct  in  foreign 
wars,  have  been  applied  by  the  courts  of  this  country,  state  and  federal,  to 
the  late  war  between  the  United  States  and  the  Confederate  States.  Griswold 
V.  Waddington,  16  Johns.  (N.  Y.)  438  [1819] ;  Prize  Cases,  2  Black's  U.  S.  635, 
Fed.  Cas.  No.  18.283  [1862]:  Mrs.  Alexander's  Cotton,  2  Wall.  (U.  S.)  404,  17 
L.  Ed.  915  [1864] ;  The  William  Bagaley,  5  Wall.  (U.  S.)  377,  18  L.  Ed.  583 
[1866] ;  Hanger  v.  Abbott,  6  Wall.  (U.  S.)  532,  18  L.  Ed.  939  [1867];  Matthews 
V.  McStea,  91  U.  S.  7,  23  L.  Ed.  188  [1875] ;  Billgerry  v.  Branch  &  Sons.  19 
Grat.  (Va.)  393,  100  Am.  Dec.  679  [1869'] ;  Walker  v.  Beauchler,  27  Grat.  (Va.) 
511  [1876]." 

2  The  35  Geo.  Ill,  c.  15  (16th  March  1795),  reciting  and  confirming  the 
Orders  of  Council  of  the  16th   and  21st  of  January   (which   allowed   goods 


Ch.  7)  INTERCOURSE   BETWEEN   BELLIGERENTS  623 

III,  c.  16;  Z7  Geo.  Ill,  c.  12,  confirming  and  continuing  the  orders  of 
council  of  the  16th  and  21st  January,  it  was  apprehended  in  that  part 
of  Great  Britain,  that  by  these  acts  the  importation  of  such  goods  was 
made  legal.  But  for  the  greater  security,  they  still  made  application 
to  the  commissioners  of  customs  at  Glasgow,  to  know  what  they  con- 
sidered to  be  the  interpretation  of  the  said  acts,  and  whether  his  majes- 
ty's license  was  still  necessary ;  and  that  in  answer  to  such  application, 
the  merchants  were  informed,  under  the  opinion  of  the  law  advisers 
of  the  said  commissioners,  that  no  such  orders  of  council  were  neces- 
sary, ana  that  all  goods  brought  from  the  United  Provinces,  would  in 
future  be  entered  without  them ;  and  that  in  consequence  of  such  in- 
formation, they  had  caused  the  goods  in  question  to  be  shipped  at  Rot- 
terdam for  their  account;  ostensibly  documented  for  Bergen  to  avoid 
the  enemy's  cruisers. 

Sir  W.  ScoTT.^  This  is  the  case  of  a  ship,  laden  with  flax,  madder, 
geneva,  and  cheese,  and  bound  from  Rotterdam  ostensibly  to  Bergen; 
but  she  was  in  truth  coming  to  a  British  port,  and  took  a  destination  to 
Bergen  to  deceive  French  cruisers ;  and  as  the  claim  discloses  (of 
which  I  see  no  reason  to  doubt  the  truth),  the  goods  were  to  be  imported 
on  account  of  British  merchants,  being  most  of  them  articles  of  con- 
siderable use  in  the  manufactures  and  commerce  of  this  country,  and 
being  brought  under  an  assurance  from  the  commissioners  of  the  cus- 
toms in  Scotland  that  they  might  be  lawfully  imported  without  any  li- 
cense, by  virtue  of  the  statute  35  Geo.  Ill,  cc.  15  and  80. 

It  is  said  that  these  circumstances  compose  a  case  entitled  to  great 
indulgence ;  and  I  do  not  deny  it.  But  if  there  is  a  rule  of  law  on  the 
subject  binding  the  court,  I  must  follow  where  that  rule  leads  me; 
though  it  leads  to  consequences  which  I  may  privately  regret,  when  I 
look  to  the  particular  intentions  of  the  parties. 

In  my  opinion  there  exists  such  a  general  rule  in  the  maritime  ju- 
risprudence of  this  country,  by  which  all  trading  with  the  public 
enemy,  unless  with  the  permission  of  the  sovereign,  is  interdicted.  It 
is  not  a  principle  peculiar  to  the  maritime  law  of  this  country;  it  is 
laid  down  by  Bynkershoek  as  an  universal  principle  of  law.  "Ex  natura 
belli  commercia  inter  hostes  cessare  non  est  dubitandum.  Quamvis 
nulla  specialis  sit  commerciorum  prohibitio,  ipso  tamen  jure  belli  com- 
mercia esse  vetita,  ipsae  indictiones  bellorum  satis  declarant,"  etc.  He 
proceeds  to  observe,  that  the  interests  of  trade,  and  the  necessity  of 

coming  to  ports  of  this  liingdom  directly  from  any  port  of  Holland,  and 
navigated  in  any  manner,  to  be  landed  and  secured  in  warehouses  for  the  use 
of  the  proprietors  till  farther  orders),  enacts,  that  it  shall  be  lawful  to  import 
such  goods  belonging  to  subjects  of  the  United  Provinces,  or  to  any  who  were 
subjects  before  the  19th  of  January,  179d,  or  to  any  subject  of  his  Majesty,  to 
be  landed  and  secured  in  warehouses  for  the  benefit  of  the  proprietor,  and  for 
the  security  of  the  revenue.  The  subsequent  acts  contain  further  regulations 
for  property  coming  from  Holland,  in  the  ambiguous  situation  of  the  two 
countries  at  that  time. 

3  Parts  of  the  opinion   are  omitted. 


624  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME   OP  WAR         (Part  3 

obtaining  certain  commodities  have  sometimes  so  far  overpowered  this 
rule,  that  different  species  of  traffic  have  been  permitted,  "prout  e  re 
sua,  subditorumque  suorum  esse  censent  principes."  Bynk.  O.  J.  P. 
bk.  1,  c.  3.  But  it  is  in  all  cases  the  act  and  permission  of  the  sovereign. 
Wherever  that  is  permitted,  it  is  a  suspension  of  the  state  of  war 
quo  ad  hoc.  It  is,  as  he  expresses  it,  "pro  parte  sic  bellum,  pro  parte 
pax  inter  subditos  utriusque  principes."  It  appears  from  these  pas- 
sages to  have  been  the  law  of  Holland ;  Valin,  1.  iii.,  tit.  6,  art.  3,  states 
it  to  have  been  the  law  of  France,  whether  the  trade  was  %attempted 
to  be  carried  on  in  national  or  in  neutral  vessels.  It  will  appear  from 
a  case  which  I  shall  have  occasion  to  mention,  The  Fortuna,  to  have 
been  the  law  of  Spain ;  and  it  may,  I  think,  without  rashness  be  affirmed 
to  have  been  a  general  principle  of  law  in  most  of  the  countries  of 
Europe. 

By  the  law  and  constitution  of  this  country,  the  sovereign  alone 
has  the  power  of  declaring  war  and  peace.  He  alone  therefore  who 
has  the  power  of  entirely  removing  the  state  of  war,  has  the  power 
of  removing  it  in  part,  by  permitting,  where  he  sees  proper,  that  com- 
mercial intercourse  which  is  a  partial  suspension  of  the  war.  There 
may  be  occasions  on  which  such  an  intercourse  may  be  highly  expedi- 
ent. But  it  is  not  for  individuals  to  determine  on  the  expediency  of 
such  occasions  on  their  own  notions  of  commerce,  and  of  commerce 
merely,  and  possibly  on  grounds  of  private  advantage  not  very  reconcil- 
able with  the  general  interest  of  the  state.  It  is  for  the  state  alone,  on 
more  enlarged  views  of  policy,  and  of  all  circumstances  that  may  be 
connected  with  such  an  intercourse,  to  determine  when  it  shall  be  per- 
mitted, and  under  what  regulations.  In  my  opinion,  no  principle  ought 
to  be  held  more  sacred  than  that  this  intercourse  cannot  subsist  on  any 
other  footing  than  that  of  the  direct  permission  of  the  state.  Who  can 
be  insensible  to  the  consequences  that  might  follow,  if  every  person  in 
a  time  of  war  had  a  right  to  carry  on  a  commercial  intercourse  with 
the  enemy,  and  under  color  of  that,  had  the  means  of  carrying  on  any 
other  species  of  intercourse  he  might  think  fit?  The  inconvenience  to 
the  public  might  be  extreme ;  and  where  is  the  inconvenience  on  the 
other  side,  that  the  merchant  should  be  compelled,  in  such  a  situation 
of  the  two  countries,  to  carry  on  his  trade  between  them  (if  neces- 
sary) under  the  eye  and  control  of  the  government,  charged  with  the 
care  of  the  public  safety? 

Another  principle  of  law,  of  a  less  politic  nature,  but  equally  general 
in  its  reception  and  (;iirect  in  its  application,  forbids  this  sort  of  com- 
munication as  fundamentally  inconsistent  with  the  relation  at  that  time 
existing  between  the  two  countries;  and  that  is,  the  total  inability  to 
sustain  any  contract  by  an  appeal  to  the  tribunals  of  the  one  country, 
on  the  part  of  the  subjects  of  the  other.  In  the  law  of  almost  every 
country,  the  character  of  alien  enemy  carries  with  it  a  disability  to  sue, 
or  to  sustain  in  the  language  of  the  civilians  a  persona  standi  in  ju- 
dicio.    The  peculiar  law  of  our  own  country  applies  this  principle  with 


Ch.  7)  INTERCOURSE   BETWEEN   BELLIGERENTS  G25 

great  rigor.  The  same  principle  is  received  in  our  courts  of  the  law 
of  nations ;  they  are  so  far  British  courts,  that  no  man  can  sue  therein 
who  is  a  subject  of  the  enemy,  unless  under  particular  circumstances 
that  pro  hac  vice  discharge  him  from  the  character  of  an  enemy ;  such 
as  his  coming  under  a  flag  of  truce,  a  cartel,  a  pass,  or  some  other  act 
of  public  authority  that  puts  him  in  the  King's  peace  pro  hac  vice. 
But  otherwise  he  is  totally  ex  lex ;  even  in  the  case  of  ransoms  which 
were  contracts,  but  contracts  arising  ex  jure  belli,  and  tolerated  as  such, 
the  enemy  was  not  permitted  to  sue  in  his  own  proper  person  for  the 
payment  of  the  ransom  bill;  but  the  payment  was  enforced  by  an  ac- 
tion brought  by  the  imprisoned  hostage  in  the  courts  of  his  own  coun- 
try, for  the  recovery  of  his  freedom.  A  state  in  which  contracts  can- 
not be  enforced,  cannot  be  a  state  of  legal  commerce.  If  the  parties 
who  are  to  contract  have  no  right  to  compel  the  performance  of  the 
contract,  nor  even  to  appear  in  a  court  of  justice  for  that  purpose, 
can  there  be  a  stronger  proof  that  the  law  imposes  a  legal  inability  to 
contract  ?  To  such  transactions  it  gives  no  sanction ;  they  have  no 
legal  existence;  and  the  whole  of  such  commerce  is  attempted  with- 
out its  protection  and  against  its  authority.  Bynkershoek  expresses 
himself  with  great  force  upon  this  argument  in  his  first  book,  chapter 
7,  where  he  lays  down  that  the  legality  of  commerce  and  the  mutual 
use  of  courts  of  justice  are  inseparable.  He  says,  that  cases  of  com- 
merce are  undistinguishable  from  cases  of  any  other  species  in  this 
respect.  "Si  hosti  semel  permittas  actiones  exercere,  difficile  est  dis- 
tinguere  ex  qua  causa  oriantur,  nee  potui  animadvertere  illam  distinc- 
tionem  unquam  usu  f  uisse  servatam." 

Upon  these  and  similar  grounds  it  has  been  the  established  rule  of 
law  of  this  court,  confirmed  by  the  judgment  of  the  Supreme  Court, 
that  a  trading  with  the  enemy,  except  under  a  royal  license,  subjects 
the  property  to  confiscation;  and  the  most  eminent  persons  of  the 
law  sitting  in  the  Supreme  Courts  have  uniformly  sustained  such  judg- 
ments.    *     *     *  4 

I  omit  many  other  cases  of  the  last  and  the  present  war  merely  on 
this  ground  that  the  rule  is  so  firmly  established,  that  no  one  case  ex- 
ists which  has  been  permitted  to  contravene  it — for  I  take  upon  me 
to  aver,  that  all  cases  of  this  kind  which  have  come  before  that  tribunal 
have  received  an  uniform  determination.  The  cases  which  I  have 
produced,  prove  that  the  rule  has  been  rigidly  enforced.    Where  acts 

4  In  support  of  this  rule  Sir  W.  Scott  reviews  a  large  number  of  cases  de- 
cided on  appeal  bv  the  Lords  of  Appeal.  These  cases  are  the  following:  The 
Ringende  Jacob  (i750) ;  The  Lady  Jane  (1749)  ;  Deergaden  (1747):  The  Eliza- 
beth (1749) ;  The  Juffrow  Louisa  Margaretha  (1781)  ;  The  St.  Louis  (1781) ; 
The  Victoria  (1781);  Tlie  Cointe  de  Wohrougoff  (1781)  ;  The  Guidita  (1785); 
The  Eenigheid  (1795);  The  Fortuna  (1795);  The  Freedom  (1795);  The  Wil- 
liam (1795). 

These  were  all  cases  in  which  the  property  in  question  w^as  condemned, 
though  some  of  them,  like  the  case  of  The  Hoop,  were  cases  of  great  hardship 
upon  British  merchants. 
Scott  Int.Law— 40 


626  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

of  Parliament  have  on  different  occasions  been  made  to  relax  the  navi- 
gation law  and  other  revenue  acts ;  where  the  government  has  author- 
ized, under  the  sanction  of  an  act  of  parliament,  a  homeward  trade  from 
the  enemy's  possessions,  but  has  not  specifically  protected  an  outward 
trade  to  the  same,  though  intimately  connected  with  that  homeward 
trade,  and  almost  necessary  to  its  existence ;  that  it  has  been  enforced 
where  strong  claim  not  merely  of  convenience,  but  almost  of  necessity, 
excused  it,  on  behalf  of  the  individual ;  that  it  has  been  enforced  where 
cargoes  have  been  laden  before  the  war,  but  where  the  parties  have 
not  used  all  possible  diligence  to  countermand  the  voyage  after  the  first 
notice  of  hostilities ;  and  that  it  has  been  enforced  not  only  against  the 
subjects  of  the  crown,  but  likewise  against  those  of  its  allies  in  the 
war,  upon  the  supposition  that  the  rule  was  founded  on  a  strong  and 
universal  principle,  which  allied  states  in  war  had  a  right  to  notice 
and  apply,  mutually,  to  each  other's  subjects.  Indeed  it  is  the  less  nec- 
essary to  produce  these  cases,  because  it  is  expressly  laid  down  by  Lord 
Mansfield,  as  I  understand  him,  that  such  is  the  maritime  law  of  Eng- 
land.   Gist  V.  Mason,  1  T.  R.  85.     *     *     * 


POTTS  V.  BELL  et  al. 
(Court  of  King's  Bench,  1800.    8  Term  R.  548.) 

Upon  a  writ  of  error  brought  from  the  Court  of  Common  Pleas, 
it  appeared  that  Bell  and  others  brought  an  action  against  Potts,  upon 
a  policy  of  insurance  on  the  ship  Elizabeth,  and  goods  on  board,  at 
and  from  Rotterdam  to  Hull,  with  liberty  to  touch  and  stay  at  any 
ports  or  places,  etc.,  and  declared  as  for  a  loss  of  the  goods  loaded  on 
board  by  capture  by  enemies.  There  were  other  counts  for  money 
had  and  received,  and  upon  an  account  stated;  to  which  the  general 
issue  was  pleaded. 

At  the  trial  a  verdict  was  found  for  the  plaintiffs  below ;  and  a 
bill  of  exceptions  was  tendered  and  allowed  on  the  part  of  the  plain- 
tiff in  error,  whereby  it  appeared,  that  at  the  trial  the  plaintiffs  below 
proved  in  evidence  the  policy  of  assurance  in  the  declaration  men- 
tioned, subscribed  by  Potts,  and  dated  the  7th  of  December,  1797; 
and  that  the  policy  was  effected  in  London  by  Barrett  &  Company,  in- 
surance brokers  there,  by  the  orders,  and  for  the  benefit  and  risk  of 
the  plaintiff's,  then  and  still  being  British  merchants  resident  in  Lon- 
don, and  interested  in  the  goods  insured  to  the  value  mentioned.  That 
the  ship  Elizabeth  was  a  neutral  ship  belonging  to  H.  Bannermann 
and  Son,  of  Greetsil  and  Embden,  in  Prussia,  bound  on  the  voyage 
insured  from  Rotterdam  to  Hull.  *  *  *  That  the  ship  Elizabeth, 
having  the  goods  insured  afterwards  on  the  18th  of  December,  1797, 
sailed  from  Rotterdam  for  Hull,  and  was  captured  on  her  voyage  the 
next  day  by  a  French  ship,  an  enemy  to  the  King.     *     *     *     The  bill 

Scott  Int.Law 


Ch.  T  INTERCOURSE   BETWEEN   BELLIGEPJENTS  627 

of  exceptions  then  stated  the  judge's  direction  to  the  jury,  to  find  a 
verdict  for  the  plaintiffs  below,  the  finding  of  such  verdict  accord- 
ingly, and  the  assignment  of  errors  thereon  in  the  usual  form. 

This  case  was  first  argued  in  Michaelmas  term  last.  *  *  *  In 
the  course  of  the  argument,  the  counsel  on  both  sides  referred  to  some 
cases  which  had  been  decided  at  the  Admiralty  Court,  and  at  the  Cock- 
pit; and  this  court,  considering  that  the  subject  was  more  frequently 
discussed  there  than  in  Westminster  Hall,  desired  to  hear  a  second 
argument  by  civilians."  Accordingly,  in  Hilary  term  last,  the  case  was 
argued  by 

Sir  John  Nicholl,^  the  King's  Advocate,  for  the  plaintiff,  in  error. 
A  subject  of  this  country  cannot  trade  with  an  enemy  without  the 
King's  licence ;  and  under  the  circumstances  stated  in  the  special  ver- 
dict, if  these  goods  had  been  taken  at  sea  by  any  of  our  cruisers,  and 
brought  into  the  Court  of  Prize,  they  must  necessarily  have  been  con- 
demned as  prize.  This  rule  has  been  long  settled;  and  is  so  unde- 
niable, that  it  is  unnecessary  to  enter  into  the  principles  on  which  it 
is  founded,  which  must  now  be  presumed  to  be  politic,  wise,  and  just. 
Nor  will  it  be  necessary  to  enter  into  arguments  to  shew  that  there 
can  be  no  distinction  between  policies  of  insurance  and  other  con- 
tracts in  this  respect;  for  if  trading  with  an  enemy  be  illegal  gener- 
ally, it  must  be  so  in  this  particular  instance ;  and  every  contract  of 
indemnity  against  the  risks  attendant  on  such  trading,  must  also  be 
illegal.  There  is  no  distinction  between  policies  of  insurance  made 
to  protect  an  adventure  against  the  common  law,  and  those  against 
the  law  of  the  admiralty,  which  equally  forms  a  branch  of  the  general 
jurisprudence  of  the  kingdom.  Neither  is  it  important  to  discuss  the 
policy  of  trading  with  an  enemy  for  particular  articles  useful  in  man- 
ufactures, agriculture,  or  war;  because  the  crown  will,  in  its  discre- 
tion, judge  of  each  particular  instance,  and  grant  or  refuse  a  licence 
to  trade  accordingly.  Nor  is  there  any  distinction  as  to  the  question 
of  prize,  between  a  declaration  of  war  generally  and  a  proclamation 
for  reprisals;  the  consequence  would  be  the  same  in  either  case  upon 
the  question  now  before  the  court.  War  puts  eveiy  individual  of  the 
respective  governments,  as  well  as  the  governments  themselves,  into 
a  state  of  hostility  with  each  other.  There  is  no  such  thing  as  a  war 
for  arms  and  a  peace  for  commerce.  In  that  state  all  treaties,  civil 
contracts,  and  rights  of  property,  are  put  an  end  to.  Vattel,  b.  3,  c. 
5,  §  70.  The  same  author  (b.  3,  c.  15,  §  226)  shews  that  the  principle 
of  the  law  imposes  a  duty  on  every  subject  to  attack  the  enemy,  and 
seize  his  property  wherever  found ;  though  by  custom  this  is  restrain- 
ed to  those  individuals  only  who  have  commissions  for  that  purpose 
from  their  government.  Now  trading,  which  supposes  the  existence 
of  civil  contracts  and  relations,  and  a  reference  to  courts  of  justice''^ 

B  The  statement  of  facts  is  abridged 

e  Friday,  February  7th. 

T  Vide  Bynk.  b.  1,  c.  7,  and  the  case  of  The  Hoop.  Rob.  Adra.  201  (1799). 


628  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

and  the  rights  of  property,  is  necessarily  contradictory  to  a  state  of 
war.  Besides,  it  is  criminal  in  a  subject  to  aid  and  comfort  the  enemy ; 
and  trading  affords  that  aid  and  comfort  in  the  most  effectual  man- 
ner, by  enabling  the  merchants  of  the  enemy's  country  to  support  their 
government.  Export  duties  are  to  be  paid  when  goods  are  brought 
from  an  enemy's  country,  which  is  furnishing  the  very  sinews  of  war 
to  the  hostile  government.  These  considerations  apply  with  peculiar 
force  to  maritime  states,  where  the  principal  object  is  to  destroy  the 
marine  and  commerce  of  the  enemy,  in  order  to  enforce  them  to  peace. 
It  may  be  said  indeed,,  that  such  a  trading  also  benefits  ourselves,  es- 
pecially if  the  balance  of  trade  be  in  our  favour.  However,  it  belongs 
not  to  individuals,  but  to  the  state  alone,  to  balance  these  benefits ; 
and  such  a  power  will  best  be  exercised  by  granting  licences  to  par- 
ticular persons,  or  as  to  particular  commodities,  according  to  the  ex- 
igency of  particular  circumstances;  for  the  same  reasons,  a  subject 
cannot  trade  with  an  enemy,  even  from  a  neutral  country,  unless  he 
has  acquired  a  right  of  citizenship  in  that  country;  but  certainly,  if 
he  reside  in  this  country,  he  cannot  so  trade  through  the  medium  of  a 
neutral  agent;  and,  a  fortiori,  it  is  unlawful  for  him  to  do  so  where 
the  trading,  as  in  tl^s  case,  is  direct  from  the  enemy's  country  to  this: 
The  above  reasoning  is  further  strengthened  by  this  consideration, 
that  if  such  direct  trading  were  to  be  permitted,  it  would  facilitate  the 
means  of  carrying  on  a  traitorous  correspondence,  which  would  great- 
ly counterbalance  any  little  advantage  likely  to  accrue  to  the  individual 
members  of  the  community  from  such  trading.  Further,  it  has  been 
the  practice  in  all  wars  to  obtain  licences  from  the  crown  for  any  di- 
rect intercourse  with  an  enemy's  country ;  and  the  same  has  been  done 
during  the  present  war.     *     *     * 

Dr.  Swabey,  contra,  admitted  that,  so  far  as  the  question  of  prize 
affected  the  decision  of  this  case,  the  principles  advanced  and  author- 
ities cited  on  the  part  of  the  plaintiff  in  error  by  the  King's  Advocate, 
could  not  be  disputed ;  but  how  far  that  concluded  the  question  as  to 
the  legality  of  the  insurance  at  common  law,  or  whether  the  obtain- 
ing of  a  licence  from  the  crown  prior  to  the  capture,  would  make  any 
dift'erence,  he  begged  leave  to  refer  to  the  arguments  of  the  common 
lawyers  on  behalf  of  the  defendants  in  error. 

Curia  adv.  vult. 

Lord  Kenyon,  C.  J.,  now  said,  that  the  court  had  very  fully  con- 
sidered the  question  immediately  after  the  very  learned  argument 
which  had  been  made  by  the  King's  Advocate  in  the  last  term;  that 
the  reasons  which  he  had  urged,  and  the  authorities  he  had  cited,  were 
so  many,  so  uniform,  and  so  conclusive,  to  shew  that  a  British  sub- 
ject's trading  with  an  enemy  was  illegal,  that  the  question  might  be 
considered  as  finally  at  rest;  that  those  authorities,  it  was  true,  were 
mostly  drawn  from  the  decisions  of  the  Admiralty  Courts;  and  that,, 
after  all  the  diligence  which  had  been  used,  there  was  only  one  direct 
authority  on  the  subject  to  be  found  in  the  common  law  books,  and 


Ch.  7)  INTERCOURSE   BETWEEN   BELLIGERENTS  629 

that  one  was  to  the  same  effect;  but  that  the  circumstance  of  there 
being  that  single  case  only,  was  strong  to  shew  that  the  point  had  not 
been  since  disputed,  and  that  it  might  now  be  taken  for  granted  that 
it  was  a  principle  of  the  common  law,  that  trading  with  an  enemy 
without  the  King's  licence,  was  illegal  in  British  subjects ;  that  it  was 
therefore  needless,  in  this  case,  to  delay  giving  judgment  for  the  sake 
of  pronouncing  the  opinion  of  the  court  in  more  formal  terms ;  more 
especially  as  they  could  do  little  more  than  recapitulate  the  judgment, 
with  tlie  long  train  of  authorities  already  to  be  found,  in  the  clearest 
terms,  in  the  printed  report  of  the  case  of  The  Hoop,  published  by 
Dr.  Robinson;  that  the  consequence  was,  that  the  judgment  of  the 
Court  of  Common  Pleas  must  be  reversed. 
Pi;r  Curiam.    Judgment  reversed. 


THE  PANARIELLOS. 

(Privy  Council,  1916.    2  British  and  Colonial  Prize  Cas.  47.) 

In  May,  1914,  a  French  company  contracted  to  sell  to  a  German 
firm  at  Frankfort  a  quantity  of  silver  lead  f.  o.  b.  Ergasteria,  in 
Greece.  In  pursuance  of  the  contract  the  French  company  chartered 
a  steamer  for  a  voyage  to  Antwerp  and  Newcastle  to  carry  the  lead 
to  the  purchasers  from  the  German  firm.  Before  the  loading,  which 
began  on  July  29,  was  finished,  war  broke  out  between  Great  Britain 
and  her  allies  and  Germany.  On  August  11  the  vessel  sailed.  The 
French  company  then  entered  into  negotiations  with  the  London  office 
of  the  German  firm  as  regards  the  delivery  of  the  lead,  but  on  August 
23  that  office  was  closed  by  order  of  the  Home  Secretary,  the  negotia- 
tions fell  through,  and  the  French  company  diverted  the  vessel  to 
Swansea,  where  the  cargo,  the  property  in  which  admittedly  remained 
in  the  French  company,  was  seized  as  prize.* 

Appeal  by  the  Compagnie  Fran9aise  des  Mines  du  Laurium,  a 
French  company,  from  a  judgment  of  Sir  Samuel  Evans,  sitting  in 
the  Prize  Court,  which  had  condemned  1,020  tons  of  silver  lead, 
the  property  of  the  appellants,  part  of  the  cargo  of  the  steamship  Pan- 
ariellos,  as  lawful  prize  on  the  ground  that  after  the  declaration  of 
war  there  had  been  trading  with  the  enemy  in  respect  of  it.     *     *     * 

Their  Lordships  took  time  to  consider  their  judgment. 

Lord  Sumner.  *  *  *  The  general  principles  upon  which  trad- 
ing with  the  enemy  is  forbidden  to  the  subjects,  or  those  who  stand 
in  the  place  of  subjects,  of  His  Majesty  and  of  his  allies,  are  well  set- 
tled and  need  not  be  restated.  Ample  citations  from  the  authorities  are 
to  be  found  in  the  learned  and  elaborate  judgment  in  the  Court  be- 

8  Tlie  headnote  of  the  case  In  first  instance  (1  British  and  Colonial  Prize 
Cases,  195  [1915])  has  been  substituted  for  the  elaborate  statement  of  the  case 
contained  in  Lord  Sumner's  judgment. 


630  RIGHTS   AND   DUTIES   OP   NATIONS   IN   TIME   OF   WAR         (Part  3 

low.  Before  their  Lordships,  Httle  if  any,  stress  was  laid  on  poiilts 
much  relied  on  at  the  trial — namely,  that  the  administrateur  delegue 
of  the  company  had  no  intention  of  offending,  and  believed  that  what 
was  done  was  legitimate  as  long  as  Beer,  Sondheimer  &  Co.'s  office  [in 
London]  had  not  been  closed ;  that  in  these  proceedings  a  French  com- 
pany was  more  favourably  situated  than  an  English  company;  and 
that  the  intercourse  in  this  case  fell  short,  somehow  of  technical  "trad- 
ing." Their  Lordships  think  it  sufficient  to  say  that  none  of  these 
points  avail  the  appellants. 

The  questions  with  which  it  is  necessary  to  deal  are,  first,  whether 
at  any  time  the  goods  condemned  were  engaged  in  trading  with  the 
enemy;  and,  secondly,  whether  such  trading  had  not  ended  before  sei- 
zure, so  that  the  goods  were  no  longer  liable  to  condemnation. 

In  their  Lordships'  opinion,  the  dispatch  of  the  ore  from  Ergasteria, 
for  delivery  as  directed  by  Beer,  Sondheimer  &  Co.,  of  Frankfort,  and 
for  their  benefit  engaged  the  goods  in  forbidden  intercourse  with  the 
enemy.  Consignment  of  goods  to  an  enemy  port  and  vesting  of  them 
in  an  enemy  while  on  passage  though  common  features  in  the  reported 
cases,  are  not  essential  to  the  imputation  of  forbidden  trading.  Geo- 
graphical destination  alone  is  not  the  test.  Intercourse  with  an  enemy 
subject,  resident  in  the  enemy  country,  is  forbidden  even  though  it 
takes  place  through  his  agent  in  the  United  Kingdom.  The  develop- 
ment of  communications,  the  increased  complexity  of  commercial  inter- 
course, and  the  multiplication  of  facilities  for  enemy  dealings  with 
goods  though  at  a  distance  from  the  enemy  country,  are  incidents  in 
the  growth  of  modern  commerce,  to  which  in  its  application  the  rule  of 
law  must  be  adapted.  They  do  not  in  themselves  operate  to  defeat 
the  application  of  an  established  principle.  In  the  present  case  it  is 
true  that  on  shipment  the  consignors  retained  the  indicia  of  title  to  the 
goods  and  the  jus  disponendi  over  them ;  that  the  lead  ore  was  ship- 
ped for  discharge  at  an  English  port,  and  that  the  enemy  buyers  se- 
lected as  the  actual  recipients  of  the  ore  a  firm  carrying  on  business 
in  London,  which  had  a  manager  there  who,  though  not  licensed  to 
trade,  was  in  one  sense  tolerated,  since  for  some  days  his  business 
premises  were  not  officially  closed.  Indeed,  this  agent  was  informed 
by  the  Board  of  Trade — with  what  authority,  if  any,  does  not  appear 
— that  he  needed  no  licence ;  but  this  advice  was  given  on  the  express 
representation,  made  on  his  behalf,  that  his  intention  was  to  trade  only 
in  the  United  Kingdom  or  with  allied  or  neutral  countries.  Hence 
this  Oilicial  reply  had  no  reference  to  or  effect  upon  dealings  with  this 
ore,  which,  if  Beer,  Sondheimer  &  Co.,  of  London,  entered  into  them  at 
all,  would  plainly  be  dealings  on  behalf  of  Beer,  Sondheimer  &  Co., 
of  Frankfort.  These  circumstances  do  not  take  the  case  out  of  the 
rule. 

Their  Lordships  being  of  opinion  that  the  ore  was  so  shipped  as  to 
be  engaged  in  commercial  intercourse  with  the  enemy,  the  burden  is 
upon  the  claimants  to  establish  that  subsequently  such  events  happened 


Ch.  7)  INTERCOURSE   BETWEEN   BELLIGERENTS  631 

or  such  a  course  was  taken  as  effectually  relieved  it  from  liability  to 
forfeiture.     *     *     * 

Their  Lordships  are  of  the  opinion  that  upon  these  facts  the  appel- 
lants have  failed  to  discharge  their  obligation  to  shew  that  the  en- 
gagement of  the  ore  in  enemy  trading  had  been  abandoned  in  time. 
It  is  not  enough  to  shew  a  mere  repentance,  or  a  change  of  intention, 
without  some  dealing  with  the  res.  There  must  be  something  which 
withdraws  the  goods  from  the  forbidden  adventure.     *     *     * 

Their  Lordships  will  therefore  humbly  advise  His  Majesty  that  this 
appeal  should  be  dismissed,  but,  as  the  Procurator  General  made  no 
submission  that  costs  should  be  allowed,  that  this  appeal  should  be 
dismissed  without  costs. 

Appeal  dismissed. 


THE  RAPID. 
(Supreme  Court  of  the  United  States,  1814.    8  Cranch,  155,  3  L.  Ed.  520.) 

This  was  an  appeal  from  the  sentence  of  the  Circuit  Court  for  the 
district  of  Massachusetts.     *     *     * » 

Monday,  March  7,  1814.    (Absent,  Todd,  J.) 

Johnson,  J.,  delivered  the  opinion  of  the  court,  as  follows: 

This  capture  was  made  on  the  high  seas,  about  a  month  after  the 
declaration  of  war.  The  claimant,  Harrison,  had  purchased  a  quantity 
of  English  goods,  in  England,  "a  long  time,"  to  use  his  own  language, 
before  the  declaration  of  war,  and  deposited  them  on  a  small  island, 
called  Indian  island,  near  to  the  line  between  Nova  Scotia  and  these 
states.  Upon  the  breaking  out  of  the  war,  his  agents  in  Boston  hired 
the  Rapid,  a  licensed  vessel  in  the  cod-fishery,  to  proceed  to  the  place 
of  deposit  and  bring  away  these  goods.  On  her  return,  she  was  cap- 
tured by  the  Jefferson  privateer,  and  was  condemned  for  trading  with 
the  enemy's  country. 

On  the  argument,  it  was  contended,  in  behalf  of  the  appellant,  that 
this  was  not  a  trading,  within  the  meaning  of  the  cases  cited,  to  sup- 
port the  condemnation ;  that,  on  the  breaking  out  of  a  war,  every  cit- 
izen had  a  right,  and  it  was  the  interest  of  the  community  to  permit 
her  citizens,  to  withdraw  property  lying  in  an  enemy's  country  and 
purchased  before  the  war;  finally,  that  neither  the  declaration  of  war, 
nor  the  commission  of  the  privateer  authorized  the  capture  of  this  ves- 
sel and  cargo,  as  they  were,  in  fact,  American  property. 

It  is  understood,  that  the  claim  of  the  United  States  for  the  forfei- 
ture, is  not  now  interposed.  The  court,  therefore,  enters  upon  this 
consideration  unembarrassed  by  a  claim  which  would  otherwise  ride 
over  every  question  now  before  us. 

This  is  the  first  case,  since  its  organization,  in  which  this  court  has 

»  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


C32  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

been  called  upon  to  assert  the  rights  of  war  against  the  property  of  a 
citizen.  It  is,  with  extreme  hesitation,  and  under  a  deep  sense  of  the 
delicacy  of  the  duty  which  we  are  called  upon  to  discharge,  that  we 
proceed  to  adjudge  the  forfeiture  of  private  right,  upon  principles  of 
public  law,  highly  penal  in  their  nature,  and  unfortunately,  too  little 
understood. 

But  a  new  state  of  things  has  occurred — a  new  character  has  been 
assumed  by  this  nation,  which  involves  it  in  new  rela:tions,  and  con- 
fers on  it  new  rights ;  which  imposes  a  new  class  of  obligations  on  our 
citizens,  and  subjects  them  to  new  penalties.  The  nature  and  conse- 
quences of  a  state  of  war  must  direct  us  to  the  conclusions  which  we 
are  to  form  on  this  case. 

On  this  point,  there  is  really  no  difference  of  opinion  among  jurists: 
there  can  be  none  among  those  who  will  distinguish  between  what 
it  is,  in  itself,  and  what  it  ought  to  be,  under  the  influence  of  a  benign 
morality  and  the  modern  practice  of  civilized  nations.  In  the  state 
of  war,  nation  is  known  to  nation  only  by  their  armed  exterior;  each 
threatening  the  other  with  conquest  or  annihilation.  The  individuals 
who  compose  the  belligerent  states,  exist,  as  to  each  other,  in  a  state 
of  utter  occlusion.  If  they  meet,  it  is  only  in  combat.  War  strips 
man  of  his  social  nature ;  it  demands  of  him  the  suppression  of  those 
sympathies  which  claim  man  for  a  brother ;  and  accustoms  the  ear  of 
humanity  to  hear  with  indifference,  perhaps  exultation,  "that  thousands 
have  been  slain."  These  are  not  the  gloomy  reveries  of  the  bookman. 
From  the  earliest  time  of  which  historians  have  written  or  poets  im- 
agined, the  victor  conquered  but  to  slay,  and  slew  but  to  triumph  over 
the  body  of  the  vanquished.  Even  when  philosophy  had  done  all  that 
philosophy  could  do,  to  soften  the  nature  of  man,  war  continued  the 
gladiatorian  combat :  the  vanquished  bled,  wherever  caprice  pronounced 
her  fiat.  To  the  benign  influence  of  the  Christian  religion  it  remained 
to  shed  a  few  faint  rays  upon  the  gloom  of  war;  a  feeble  light  but 
barely  sufficient  to  disclose  its  horrors.  Hence,  many  rules  have  been 
introduced  into  modern  warfare,  at  which  humanity  must  rejoice,  but 
which  owe  their  existence  altogether  to  mutual  concession,  and  con- 
stitute so  many  voluntary  relinquishments  of  the  rights  of  war.  To 
understand  what  it  is  in  itself,  and  what  it  is  under  the  influence  of  mod- 
ern practice,  we  have  but  too  many  opportunities  of  comparing  the 
habits  of  savage,  with  those  of  civilized  warfare. 

On  the  subject  which  particularly  affects  this  case,  there  has  been 
no  general  relaxation.  The  universal  sense  of  nations  has  acknowl- 
edged the  demoralizing  effects  that  would  result  from  the  admission  of 
individual  intercourse.  The  whole  nation  are  embarked  in  one  com- 
mon bottom,  and  must  be  reconciled  to  submit  to  one  common  fate. 
Every  individual  of  the  one  nation  must  acknowledge  every  individual 
of  the  other  nation  as  his  own  enemy — ^because  the  enemy  of  his  coun- 
try.   It  is  not  necessary  to  quote  the  authorities  on  this  subject;   they 


Ch.  7)  INTERCOURSE   BETWEEN   BELLIGERENTS  633 

are  numerous,  explicit,  respectable,  and  have  been  ably  commented  up- 
on in  the  argument. 

But  after  deciding  what  is  the  duty  of  the  citizen,  the  question  oc- 
curs, what  is  the  consequence  of  a  breach  of  that  duty?  The  law  of 
prize  is  part  of  the  law  of  nations.  In  it,  a  hostile  character  is  at- 
tached to  trade,  independently  of  the  character  of  the  trader  who  pur- 
sues or  directs  it.  Condemnation  to  the  use  of  the  captor  is  equally 
the  fate  of  the  property  of  the  belligerent,  and  of  the  property  found 
engaged  in  anti-neutral  trade.  But  a  citizen  or  ally  may  be  engaged  in 
a  hostile  trade,  and  thereby  involve  his  property  in  the  fate  of  those 
in  whose  cause  he  embarks. 

This  liability  of  the  property  of  a  citizen  to  condemnation  as  prize 
of  war,  may  be  likewise  accounted  for  under  other  considerations. 
Everything  that  issues  from  a  hostile  country  is,  prima  facie,  the  prop- 
erty of  the  enemy ;  and  it  is  incumbent  upon  the  claimant  to  support 
the  negative  of  the  proposition.  But  if  the  claimant  be  a  citizen  or  an 
ally,  at  the  same  time  that  he  makes  out  his  interest,  he  confesses  the 
commission  of  an  offence  which,  under  a  well-known  rule  of  the  civil 
law,  deprives  him  of  his  right  to  prosecute  his  claim. 

This  doctrine,  however,  does  not  rest  upon  abstract  reason.  It  is 
supported  by  the  practice  of  the  most  enlightened  (perhaps  we  may 
say  of  ali)  commercial  nations.  And  it  affords  us  full  confidence  in 
our  decision,  that  we  find,  upon  recurring  to  the  records  of  the  court 
of  appeals  in  prize  cases,  established  during  the  revolutionary  war,  that 
in  various  cases,  it  was  reasoned  upon  as  the  acknowledged  law  of  that 
court.  Certain  it  is,  that  it  was  the  law  of  England,  before  the  revolu- 
tion, and  therefore,  constitutes  a  part  of  the  admiralty  and  maritime 
jurisdiction  conferred  on  this  court  in  pui*suance  of  the  constitution. 

After  taking  this  general  view  of  the  principal  doctrine  on  this  sub- 
ject, we  will  consider  the  points  made  in  behalf  of  the  claimant  in 
this  case,  and  I.  Whether  this  was  a  trading,  in  the  eye  of  the  prize 
law,  such  as  will  subject  the  property  to  capture?  The  force  of  the 
argument  on  this  point  depends  upon  the  terms  made  use  of.  If  by 
trading,  in  prize  law,  was  meant  that  signification  of  the  term  which 
consists  in  negotiation  or  contract,  this  case  would  certainly  not  come 
under  the  penalties  of  the  rule.  But  the  object,  policy  and  spirit  of  the 
rule  is  to  cut  off  all  communication  or  actual  locomotive  intercourse  be- 
tween individuals  of  the  belligerent  states.  Negotiation  or  contract  has, 
therefore,  no  necessary  connection  with  the  offence.  Intercourse  in- 
consistent with  actual  hostility,  is  the  offence  against  which  the  opera- 
tion of  the  rule  is  directed ;  and  by  substituting  this  definition  for  that 
of  trading  with  an  enemy,  an  answer  is  given  to  this  argument. 

2.  Whether,  on  the  breaking  out  of  a  war,  the  citizen  has  a  right 
to  remove  to  his  own  country  with  his  property,  is  a  question  which 
we  conceive  does  not  arise  in  this  case.  This  claimant  certainly  had 
not  a  right  to  leave  the  United  States,  for  the  purpose  of  bringing 
home   his  property   from  an   enemy's   country ;    much   less   could   he 


634  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

claim  it  as  a  right  to  bring  into  this  country,  goods,  the  importation 
of  which  was  expressly  prohibited.  As  to  the  claim  for  the  vessel, 
it  is  founded  on  no  pretext  whatever;  for  the  undertaking,  besides 
being  in  violation  of  two  laws  of  the  United  States,  was  altogether 
voluntary  and  inexcusable.  With  regard  to  the  importations  from 
Great  Britain  about  this  time,  it  is  well  known  that  the  forfeiture  was 
released  on  grounds  of  policy  and  a  supposed  obligation  induced  by 
the  assurances  which  had  been  held  out  by  the  American  charge  d'af- 
faires in  England.    But  this  claimant  could  allege  no  such  excuse. 

3.  On  the  third  point,  v.'e  are  of  opinion  that  the  foregoing  ob- 
servations furnish  a  sufficient  answer.  If  the  right  to  capture  property 
thus  offending,  grows  out  of  the  state  of  war,  it  is  enough  to  support 
the  condemnation  in  this  case,  that  the  act  of  Congress  should  produce 
a  state  of  war,  and  that  the  commission  of  the  privateer  should  au- 
thorize the  capture  of  any  property  that  shall  assume  the  belligerent 
character.  Such  a  character  we  are  of  opinion  this  vessel  and  cargo 
took  upon  herself ;  or  at  least,  she  is  deprived  of  the  right  to  prove 
herself  otherwise. 

We  are  aware  that  there  may  exist  considerable  hardship  in  this 
case ;  the  owners,  both  of  vessel  and  cargo,  may  have  been  unconscious 
that  they  were  violating  the  duties  which  a  state  of  war  imposed  upon 
them.  It  does  not  appear  that  they  meant  a  daring  violation' either  of 
the  laws  or  belligerent  rights  of  their  country.  But  it  is  the  unenvied 
province  of  this  court  to  be  directed  by  the  head,  and  not  by  the  heart. 
In  deciding  upon  principles  that  must  define  the  rights  and  duties  of 
the  citizen  and  direct  the  future  decisions  of  justice,  no  latitude  is  left 
for  the  exercise  of  feeling.     *     *     * 


Ch.  7)  INTERCOURSE  BETWEEN  BELLIGERENTS  635 

SECTION  2.— PERMISSIBLE  INTERCOURSE 


THE  GOEDE  HOOP. 

(High  Court  of  Admiralty,  1809.    EJdwards,  327.) 

This  was  a  leading  case,  and  became  of  importance,  as  it  furnished 
the  court  with  an  opportunity  of  stating  generally  the  principles  by 
which  its  decisions  would  be  governed,  in  questions  arising  on  the 
capture  of  vessels  sailing  under  British  licenses.     *     *     * 

Sir  W.  ScoTT,^^  This  was  the  case  of  a  vessel  under  Oldenburg 
colors,  which  was  captured  in  the  prosecution  of  a  voyage  from  Ro- 
chelle  to  Hull,  and  brought  to  Plymouth.  There  was  a  license  on 
board  granted  to  Henry  Nodin,  on  behalf  of  himself  and  other  British 
merchants,  for  four  vessels  under  particular  colors,  which  are  enu- 
merated to  proceed  with  cargoes  of  brandies  from  Charente,  Bor- 
deaux, or  any  port  of  France  not  blockaded,  to  any  port  of  Great 
Britain,  and  permitting  the  masters  to  receive  their  freights,  and  de- 
part with  their  vessels  and  crews.  The  license  is  dated  15th  Novem- 
ber, 1808,  and  is  to  remain  in  force  six  months  from  that  period.  Now 
the  ship  was  taken  the  29th  of  June  last,  and,  therefore,  according  to 
the  literal  construction  of  the  license,  after  the  time  had  expired  dur- 
ing which  it  was  to  continue  in  operation. 

This  question  has  led  to  some  discussion  on  the  rules  of  interpreta- 
tion to  be  applied  to  licenses  generally;  and  as  those  rules  will,  of  ne- 
cessity, embrace  a  great  variety  of  cases,  it  is  extremely  desirable  that 
they  should  be  settled  now,  as  far  as  this  can  be  done  by  the  authority 
of  this  court.  These  licenses  owe  their  origin  to  the  general  prohibi- 
tion, which  declares  it  to  be  unlawful  for  the  subjects  of  this  country 
to  trade  with  the  enemies  of  the  king,  without  his  permission ;  for  a 
state  of  war  is  a  state  of  interdiction  of  communication.  That  is  a 
law  which  is  not  peculiar  to  this  country,  but  one  which  obtains  very 
generally  among  the  states  of  Europe.  In  former  wars  this  prohibi- 
tion was  attended  with  very  little  inconvenience,  as  the  greater  part 
of  the  countries  in  the  neighborhood  remained  neutral,  and  presented 
to  the  belligerents  various  channels  of  communications,  through  which 
they  obtained  from  each  other  such  commodities  as  they  stood  in 
need  of.  While  the  world,  therefore,  continued  in  that  state,  of  course 
licenses  would  be  granted  only  in  very  special  cases,  where  it  appeared 
that  there  was  a  necessity  to  have  a  dir-ect  communication  with  the 
enemy;  and,  being  matter  of  special  indulgence,  the  application  of 
them  was  strictissimi  juris.  At  the  same  time,  when  I  so  describe 
them,  I  do  not  mean  to  say  that  there  ever  was  a  period  in  which  a 

12  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


636  EIGHTS   AND   DUTIES   OP   NATIONS   IN   TIME   OF   WAR         (Part  3 

ratiofial  exposition,  allowing  a  fair  and  liberal  construction  of  the  in- 
tention of  the  grantor,  would  not  have  been  received.     *     *     * 

But  it  has  happened  that,  in  consequence  of  the  extraordinary  and 
unprecedented  course  of  public  events,  these  licenses  have,  in  a  cer- 
tain degree,  changed  their  character,  and  are  no  longer  to  be  consid- 
ered exactly  in  the  same  light.  It  is  notorious  that  the  enemy  has  in 
this  war  directed  his  attacks  more  immediately  against  the  commerce 
of  this  country  than  in  former  wars ;  and  a  circumstance  of  still 
greater  weight  is,  that  he  has  possessed  himself  of  all  those  places  that 
in  former  wars  remained  in  a  state  of  neutrality.  To  what  part  of 
the  continent  can  we  now  look  for  a  country  which  is  not  either  under 
the  actual  dominion  of  France,  or  in  that  state  of  subjection  to  it  which 
operates  with  all  the  effect  of  dominion?  It  is  a  state  of  things  in 
which  it  has  become  impossible  for  England  to  carry  on  its  foreign 
commerce,  without  placing  it  on  a  very  different  footing  from  what  its 
convenience  required  in  former  wars.  To  say  you  shall  have  no  trade 
with  the  enemy,  would  be,  in  effect,  to  say  that  you  shall  not  trade  at 
all ;  because  that  commerce  which  is  essential  to  the  prosperity  of  the 
country  cannot  be  carried  on  in  those  small  and  obscure  nooks  and 
comers  of  Europe,  if  any  such  can  be  found,  which  are  still  inde- 
pendent. The  question,  then,  comes  to  this,  how  is  the  foreign  com- 
merce of  the  country  to  be  maintained?  It  must  be  either  by  relax- 
ing the  ancient  principle  entirely,  and  permitting  an  unlimited  inter- 
course with  the  ports  of  the  enemy,  and  when  the  ports  of  other  na- 
tions are  put  under  blockade  (as  they  are  by  the  orders  in  council) 
for  other  reasons  than  those  of  a  direct  hostile  character,  they  be- 
come liable  to  be  considered  and  treated  in  like  manner,  so  far  as  the 
purposes  of  blockade  require;  or  it  must  be  by  giving  a  greater  ex- 
tension to  the  grant  of  licenses. 

As  to  the  relaxation  of  the  general  principle,  by  which  an  open  and 
general  intercourse  with  the  enemy  would  be  allowed,  the  consent  of 
both  parties  is  requisite  to  make  tliat  effectual ;  and  even  if  the  enemy 
permitted  it,  the  legislature  would  probably  not  think  proper  to  pro- 
ceed to  that  length,  and  for  reasons,  I  presume,  connected  with  the 
public  safety.  It  has,  therefore,  tolerated  a  resort  to  the  other  mode, 
of  permitting  a  trade  by  licenses ;  which,  though  they  are  so  denomi- 
nated, are  likewise,  in  effect,  expedients  adopted  by  this  country  to 
support  its  trade,  in  defiance  of  all  those  obstacles  which  are  inter- 
posed by  the  enemy.  They  are  not  mere  matters  of  special  and -rare 
indulgence,  but  are  granted  with  great  liberality  to  all  merchants  of 
good  character,  and  are  expressed  in  very  general  terms,  requiring, 
therefore,  an  enlarged  and  liberal  interpretation.  At  the  same  time, 
they  are  not  free  from  control.  Restrictions,  dictated  by  prudent  cau- 
tion, are  annexed ;  and,  where  they  are  so  annexed,  those  restrictions 
must  be  supposed  to  have  an  operative  meaning.  It  is  not,  therefore, 
in  the  power  of  this  court  to  apply  such  an  interpretation  to  a  license 
as  would  be  m  direct  contradiction  to  its  express  terms,  or  to  say  that 


Ch.  7)  INTERCOURSE   BETWEEN  BELLIGERENTS  637 

effect  should  be  given  to  one  part  and  not  to  another.  If  the  permis- 
sion is  for  a  ship  to  go  in  ballast,  it  would  be  impossible  for  the  court 
to  say  that  it  shall  go  with  a  cargo ;  for  that  would  not  be  an  interpreta- 
tion, but  a  contravention,  of  the  license.  But  where  it  is  evident  that 
the  parties  have  acted  with  perfect  good  faith,  and  with  an  anxious 
wish  to  conform  to  the  terms  of  the  license,  I  presume  that  I  am  only 
carrying  into  effect  the  intention  of  the  grantor,  when  I  have  recourse 
to  the  utmost  liberality  of  construction  which  it  is  in  the  power  of  this 
court  to  apply.  As  a  general  rule,  therefore,  it  is  to  be  understood 
that,  where  no  fraud  has  been  committed,  where  no  fraud  has  been 
meditated,  as  far  as  appears,  and  where  the  parties  have  been  prevent- 
ed from  carrying  the  license  into  literal  execution  by  a  power  which 
they  could  not  control,  they  shall  be  entitled  to  the  benefit  of  its  pro- 
tection, although  the  terms  may  not  have  been  literally  and  strictly  ful- 
filled. If  I  assume  too  much  in  laying  down  this  rule,  it  must  be  recti- 
fied in  the  superior  court. 

But  looking  to  the  intentions  of  the  government,  not  only  to  what 
they  are,  but  to  what  I  am  led  to  suppose  they  must  be ;  looking  to  the 
extreme  difficulty  of  carrying  on  the  commerce  of  the  country  in  the 
struggle  which  it  has  to  maintain,  not  only  against  the  power  but 
against  the  craft  of  the  enemy;  looking  to  the  frequency  and  the  sud- 
denness with  which  he  lays  on  or  takes  off  his  embargoes,  according 
to  the  exigency  of  the  moment;  looking  to  the  various  obstructions 
that  present  themselves  in  obtaining  vessels,  in  consequence  of  the 
small  remainder  that  there  is  of  neutral  navigation  in  Europe;  look- 
ing, also,  to  this  circumstance,  that  all  this  intercourse  must  be  car- 
ried on  by  the  subjects  of  the  enemy,  that  it  must  be  a  confidential 
transaction,  to  be  conducted  by  an  enemy  shipper  at  great  risk  and 
hazard  to  himself ;  looking  to  the  total  change  which  has  taken  place 
in  the  nature  and  character  of  these  licenses,  if  that  denomination  is 
to  be  continued;  I  say,  looking  to  all  these  considerations,  where  there 
is  clearly  an  absence  of  all  fraud  and  of  all  discoverable  inducement 
to  fraud,  I  must  go  to  the  utmost  length  of  protection  that  fair  judicial 
discretion  will  warrant,  though  there  may,  under  such  circumstances, 
have  been  a  considerable  failure  in  the  literal  execution  of  the  terms 
of  the  license.  There  may  be  great  inconvenience  in  the  whole  system 
of  licenses,  as  indeed  it  is  scarce  possible,  in  the  present  state  of  the 
world,  that  there  should  not  be  great  practical  inconvenience  in  any 
mode  of  conducting  its  commerce.  That  is  a  question  of  policy,  with 
which  this  court  has  nothing  to  do.  It  has  only  to  enforce  the  just 
execution  of  legitimate  orders,  issued  by  competent  authority. 

Having  laid  it  down,  therefore,  as  a  general  principle,  that  where 
there  is  clear  bona  fides  in  the  holder,  this  court,  though  it  certainly 
will  not  contravene  the  terms  of  a  license,  will  give  it  the  most  liberal 
construction,  I  come  now  to  apply  that  rule  to  the  case  before  me. 
The  principle  ground  of  objection  is,  the  delay  which  took  place  in 
the  sailing  of  the  vessel ;  but  I  must  observe,  that  having  called  on  the 


638  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

counsel  for  the  captors  to  point  out  what  particular  fraud  could  have 
been  intended  by  this  procrastination,  I  have  only  been  answered  by 
a  sort  of  general  suggestion,  that  such  an  extension  of  the  period  al- 
lowed might  aflford  an  opportunity  of  bringing  the  license  into  use  a 
second  time.  But  that  any  such  use  was  made,  or  intended  to  be 
made,  of  the  license,  in  the  present  instance,  has  not  been  suggested, 
and  therefore,  it  is  to  be  taken  as  a  case  clear  of  that  act  or  intention 
of  fraud.     *     *     * 

Now  the  whole  labor  of  the  argument  has  been  employed  to  show, 
that  some  fraud  or  other  must  be  presumed,  from  the  length  of  time 
which  elapsed  after  the  expiration  of  the  license.  But  what  is  the 
natural  presumption  in  this  case  ?  why,  that  the  party  would  not  coun- 
tenance an  unnecessary  delay,  which  must  be  contrary  to  his  own  di- 
rect interest.  This  furnishes  a  very  strong  ground  to  suppose  that  it 
was  by  accident  that  the  ship  was  prevented  from  completing  her  voy- 
age within  the  time  expressed  in  the  license.  If  it  could  be  shown 
that  the  license  had  been  used  before,  and  that  the  delay  in  the  present 
instance  arose  from  its  previous  use,  or  that  there  was  any  other  fraud- 
ulent purpose  to  be  answered,  most  certainly  I  should  then  call  fpr 
more  particular  explanations ;  but  as  no  fraudulent  motive  has  been 
pointed  out,  I  must  suppose  that  the  party  was  not  dilatory  in  further- 
ing the  completion  of  his  own  mercantile  adventure.  The  only  thing 
suggested  is  the  fact  that  the  time  limited  by  the  license  had  expired. 
That  has  been  accounted  for  by  the  intervention  of  an  alleged  em- 
bargo. Shall  I,  under  these  circumstances,  order  the  fact  of  the  em- 
bargo to  be  established  by  further  proof,  when  it  is  so  probable  in  it- 
self, and  load  this  table  with  French  decrees  and  ordinances,  which 
would,  after  long  delay,  in  all  probability,  lead  to  the  same  conclusion 
at  last?  Looking  to  the  local  circumstances  of  the  country  in  which 
the  transaction  originated,  and  to  the  conduct  of  the  French  govern- 
ment at  that  particular  period,  I  think  it  my  duty  to  stand  upon  the 
presumption  that  the  embargo  did  exist,  and  to  hold  the  parties  en- 
titled to  restitution,  paying  tlie  captors  their  expenses,  which  I  cannot 
refuse,  where  the  parties  are  acting  in  apparent  contravention  of  the 
literal  terms  of  their  license.  In  such  cases  his  Majesty's  officers  have 
a  right  to  be  satisfied,  and  they  are  entitled,  in  justice,  to  be  protected 
in  their  expenses.  It  is  an  inconvenience  not  arising  from  capture, 
but  from  the  present  state  of  affairs,  and  from  which  the  court  can- 
not relieve  the  claimants,  however  it  may  regret  that  they  should  be 
subjected  to  it.  The  license,  I  observe,  is  only  to  bring  a  cargo  of 
brandy,  and  as  there  are  other  goods  on  board,  those  goods  must  be 
condemned,  as  the  permission  is  limited  to  the  brandy. 


Ch.  7)  INTERCOURSE  BETWETEN   BELLIGERENTS  639 

USPARICHA  V.  NOBLE. 

(King's  Bench,  1811.     13  East,  332.) 

This  was  an  action  on  a  policy  of  insurance  on  fish  on  board  the 
Prussian  ship  Carlota,  at  and  from  Poole  to  St.  Andero  and  Bilboa, 
both,  or  either,  subscribed  by  the  defendant  for  £150.,  on  the  29th 
Feb.,  1808,  a  copy  of  which  policy  was  annexed  to  this  case.  *  *  * 
At  the  trial  at  the  sittings  after  last  Michaelmas  term  at  Guildhall  be- 
fore Lord  Ellenborough,  C.  J.,  a  verdict  was  found  for  the  plaintiff, 
for  £137.  10s.,  subject  to  the  opinion  of  the  court  upon  the  following 
case: 

The  plaintiff  is  a  Spaniard  by  birth,  but  has  been  domiciled  as  a  mer- 
chant in  this  country  for  the  last  eight  years.  In  February,  1808,  the 
plaintiff  purchased  ^^  5,400  quintals  of  fish,  and  shipped  the  same  in 
the  Prussian  ship  the  Carlota  for  St.  Andero,  in  consequence  of  orders 
from  the  agent  of  Mr.  Lemona  Uria,  a  merchant  resident  in  Bilboa, 
and  Mr.  Uriarte,  a  Spanish  gentleman  resident  at  Vera  Cruz  in  Span- 
ish America,  but  who  was  in  England  at  the  time  of  the  purchase  and 
shipment,  upon  a  temporary  occasion.  *  *  *  On  the  21st  of  De- 
cember, 1807,  the  British  government  granted  a  license  for  the  ship 
Carlota  with  her  said  cargo  to  proceed  on  the  voyage  in  question.  By 
the  decrees  of  the  French  and  Spanish  governments  at  the  commence- 
ment of  the  war  with  Great  Britain,  all  ships  and  goods  coming  from 
England  were  declared  lawful  prize.  The  Carlota  sailed  from  Poole 
on  the  28th  of  February,  1808 ;  and  while  in  prosecution  of  her  voy- 
age, was  captured  (without  the  limits  of  the  ports  of  St.  Andero  or 
Bilboa)  by  two  French  privateers  belonging  to  Bayonne,  and  was  car- 
ried into  Castro,  a  port  of  Spain,  where  the  ship  and  cargo  were  con- 
demned and  sold  by  the  sentence  of  a  French  consular  court,  held  in 
Spain,  on  the  8th  of  June,  1808.  At  the  time  of  the  capture  and  con- 
demnation France  and  Spain  were  co-belligerent  allies  at  war  with  this 
country.  The  question  was,  whether  the  plaintiff  were  entitled  to  re- 
cover? If  he  were  so  entitled,  the  verdict  was  to  stand:  if  not,  then 
the  verdict  was  to  be  set  aside  and  a  nonsuit  entered.  The  policy  re- 
ferred to  was  in  the  common  printed  form,  and  was  stated  to  be  made 
by  the  plaintiff,  as  well  in  his  own  name,  as  for  and  in  the  name  and 
names  of  all  and  every  other  person  or  persons  to  whoiji  the  same  did, 
should  or  might,  appertain,  for  himself  and  them  and  every  of  them, 
at  10  guineas  per  cent. ;  and  liberty  was  reserved  for  the  ship  "to  have 
any  clearances  and  carry  any  simulated  papers";  and  also  it  was  "law- 
ful for  the  said  ship  in  the  voyage  to  proceed  and  sail  to,  and  touch 
and  stay  at  any  ports  or  places  whatsoever  and  wheresoever  to  load, 
unload,  and  reload  goods,  without  being  deemed  a  deviation."     *     *     * 

18  It  was  agreed  in  the  course  of  the  argument  that  the  goods  were  purchas- 
ed and  shipped  by  the  plaintiff,  on  account  of  his  correspondents,  and  not  on 
his  own  account. 


G40  RIGHTS  AND   DUTIES   OF   NATIONS   IN  TIME   OF   WAR         (Part  3 

And  the  king,  by  his  license  referred  to,  reciting  that  "whereas  IManuel 
de  Munoz  y  Usparicha  (the  plaintiff)  hath  humbly  represented  to  us 
that  he  is  desirous  of  obtaining  our  Royal  license  for  permitting  the 
Prussian  ship  Charlotte,  M.  F.  J.,  master,  of  about  300  tons  burthen, 
to  proceed  from  Poole  to  Bilboa  or  Santander,  with  a  cargo  of  fish  and 
such  goods  as  are  permitted  by  virtue  of  our  order  of  the  Uth  of  No- 
vember, 1807,  to  be  exported";  thereby  directed  the  commanders  of 
all  his  ships  of  war  and  privateers  "not  to  interrupt  the  said  vessel,  but 
to  suffer  her  to  proceed  as  aforesaid."  This  license  was  to  remain  in 
force  for  four  months,  and  at  the  expiration  thereof,  or  sooner  if  the 
voyage  were  before  completed,  was 'to  be  deposited  with  the  commis- 
sioners of  the  customs  at  the  port  of  London,  or  with  the  collector  of 
the  customs  at  the  outports.    Dated  21st  December,  1807. 

Barnewall,  for  the  plaintiff,  observing  that  the  plaintiff's  claim  was 
resisted  on  the  principle  laid  down  in  Conway  v.  Gray  and  Others,  10 
East,  536,  that  the  assent  of  every  subject  is  virtually  implied  to  every 
act  of  his  own  government,  and  therefore  that  a  foreigner  could  not 
recover  here  upon  a  policy  of  insurance  where  the  loss  happened  by 
the  acts  of  the  government  to  which  he  was  subject,  contended  that 
that  principle  did  not  apply  to  this  case,  where  the  capture  to  which  the 
loss  was  to  be  attributed  was  made  by  a  French  and  not  by  a  Span- 
ish force;  and  though  the  French  and  Spanish  governments  had  a 
com.mon  interest  at  the  time  for  some  purposes,  yet  the  fact  of  their 
being  co-belligerent  allies  in  the  war  against  this  country  did  not  so 
far  identify  the  subjects  of  Spain  with  the  government  of  France  as 
to  make  them  answerable  for  its  acts  within  the  principle  of  that  case. 
Neither  will  the  condemnation  of  the  vessel  by  the  French  consular 
court  sitting  in  Spain  work  that  effect,  for  the  loss  was  by  the  capture 
and  not  by  the  condemnation,  and  that  condemnation  was  in  the  name 
and  by  the  authority  of  the  French  and  not  of  the  Spanish  government. 
But  at  all  events  the  effect  of  the  King's  license  was  to  make  the  licensed 
Spaniard  an  alien  friend  instead  of  an  alien  enemy,  and  thereby  to 
except  him  from  his  implied  responsibility  for  the  acts  of  his  native 
government.     *     *     * 

Richardson,  contra,  contended  that  this  case  came  directly  within  the 
principle  of  Conway  v.  Gray,  10  East.  536,  and  the  other  cases  decided 
at  the  same  time,  by  which  every  foreign  subject  was  considered  as  a 
party  to  the  acts  of  his  own  government,  and  therefore  precluded  from 
recovering  upon  a  policy  of  insurance  for  a  loss  occasioned,  as  it  may 
be  said,  by  his  own  act.  This  principle  was  established  without  any 
relation  to  the  question  of  neutrality ;  for  it  would  apply  as  well  to  the 
case  of  a  friendly  as  of  a  hostile  alien.     *     *     * 

Lord  Ellenborough,  C.  J-,  observed  that  the  license  was  given 
to  a  Spanish  subject  domiciled  here,  and  did  not  extend  to  every  Span- 
ish subject  resident  elsewhere.  But  as  the  principle  on  which  the  cases 
on  the  American  embargo  were  decided  had  been  much  pressed  upon 


Ch.  7)  INTERCOURSE  BETWEEN  BELLIGERENTS  641 

the  Court  in  the  argument,  although  at  present  it  appeared  to  him  that 
this  case  was  distinguishable  from  those,  they  would  consider  further 
of  it  before  they  delivered  their  opinion.  And  afterwards  in  this  term 
his  Lordship  gave  judgment  (after  stating  the  facts) : 

It  appears  by  the  case  that  this  was  an  action  brought  by  a  native 
Spaniard  domiciled  here  in  time  of  war  with  Spain,  and  specially  li- 
censed by  His  Majesty  for  the  purpose  of  the  very  commerce  which 
it  was  the  object  of  the  policy  declared  upon  in  this  action  to  insure. 
The  case  cited  of  Wells  v.  Williams,  1  Lord  Raym.  282,  establishes 
that  a  plaintiff,  an  alien  enemy  in  respect  of  the  place  of  his  birth,  may, 
under  similar  circumstances  of  domicile,  be  allowed  to  sue  in  our 
courts.  The  legal  result  of  the  license  granted  in  this  case  is,  that 
not  only  the  plaintiff,  the  person  licensed,  may  sue  in  respect  of  such 
licensed  commerce  in  our  courts  of  law,  but  that  the  commerce  itself 
is  to  be  regarded  as  legalized  for  all  purposes  of  its  due  and  eft'ectual 
prosecution.  To  hold  otherwise  would  be  to  maintain  a  proposition 
repugnant  to  national  good  faith  and  the  honor  of  the  crown.  The 
crown  may  exempt  any  persons  and  any  branch  of  commerce,  in  its 
discretion,  from  the  disabilities  and  forfeitures  arising  out  of  a  state 
of  war:  and  its  license  for  such  purpose  ought  to  receive  the  most 
liberal  construction.  To  say  that  the  plaintiff  might  export  the  goods 
specified  in  the  license  from  Great  Britain  to  an  enemy's  country  for 
the  benefit  of  himself  or  others  (and  the  license  contains  no  restric- 
tion in  this  particular);  and  yet  to  hold  that  where  he  has  so  done, 
he  could  not  insure;  or,  having  insured,  could  not  recover  his  loss, 
either  on  account  of  his  original  character  of  a  native  Spaniard,  or  on 
account  of  the  places  to  which,  or  of  the  persons  to  whom  the  goods 
were  destined;  would  be  to  convert  the  license  itself  into  an  instru- 
ment of  deception  and  fraud.  The  crown,  in  licensing  the  end,  im- 
pliedly licenses  all  the  ordinary  legitimate  means  of  attaining  that  end. 
For  adequate  purposes  of  state  policy  and  public  advantage,  the  crown, 
it  must  be  presumed,  has  been  induced  in  this  instance  to  license  a 
description  of  trading  with  an  enemy's  country,  which  would  other- 
wise be  unquestionably  illegal.  Whatever  commerce  of  this  sort  the 
crown  has  thought  fit  to  permit  (which  in  respect  of  its  prerogatives 
of  peace  and  war,  the  crown  is  by  its  sole  authority  competent  to  pro- 
hibit or  permit)  must  be  regarded  by  all  the  subjects  of  the  realm,  and 
by  the  courts  of  law,  when  any  question  relative  to  it  comes  before 
them,  as  legal,  with  all  the  consequences  of  its  being  legal:  one  of 
which  consequences  is  a  right  to  contract  with  other  subjects  of  the 
country  for  the  indemnity  and  protection  of  such  property  in  the  course 
of  its  conveyance  to  its  licensed  place  of  destination,  though  an  enemy's 
country,  and  for  the  purpose  (as  it  probably  will  be  in  most  cases)  of 
being  there  delivered  to  an  alien  enemy,  as  consignee  or  purchaser. 

In  the  present  case  the  license  was  obtained  for  the  purpose  of  pro- 
ScoTT  Int. Law — il 


642  BIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

tecting  the  subject-matter  insured  in  the  cdurse  of  its  conveyance  by  sea 
from  England  to  certain  ports  in  Spain,  to  be  there  delivered  to  the  pur- 
chasers thereof,  who  are  the  persons  in  whom  the  interest  is  averred 
in  the  first  and  second  counts  of  this  declaration:  and  the  action  is 
well  brought,  upon  the  principles  above  stated,  in  the  name  of  the 
plaintiff  for  their  benefit.  For  the  purpose  of  this  licensed  act  of 
trading  (but  to  that  extent  only)  the  person  licensed  is  to  be  regarded 
as  virtually  an  adopted  subject  of  the  crown  of  Great  Britain;  his  trad- 
ing, as  far  as  the  disabilities  arising  out  of  a  state  of  war  are  concerned, 
is  British  trading;  and  of  course  any  argument  to  be  drawn  from  a 
virtual  participation  in  and  supposed  privity  to  the  acts  of  his  own 
native  country,  then  at  war  with  the  crown  of  Great  Britain,  is  ex- 
cluded or  superseded  in  point  of  effect  by  an  express  privity  to  and 
immediate  participation  in  the  adverse  acts  of  the  British  government. 
As  far  as  the  plaintiff  and  the  Spanish  purchasers  of  this  cargo  are 
concerned,  they  are  actually  privy  to  the  objects  of  the  British  gov- 
ernment, and  acting  in  furtherance  thereof,  and  in  direct  opposition 
to  the  laws  and  policy  of  their  own  country.  And  it  will  not  be  con- 
tended to  be  illegal  to  insure  a  trade  carried  on  in  contravention  of  the 
laws  of  a  state  at  war  with  us,  and  in  furtherance  of  the  policy  of  our 
country  and  its  trade;  and  which  this  trade  in  question,  sanctioned  as 
it  is  by  His  Majesty's  license,  must  be  deemed  to  have  been.  It  is  not 
therefore  necessary  to  consider  upon  this  occasion  the  ingenious  super- 
structure which  has  been  endeavoured  to  be  raised  on  the  determina- 
tion of  this  court  in  the  case  of  Conway  v.  Gray,  10  East.  Nor  (if  the 
principle  of  that  case  did  at  all  apply  to  the  present,  circumstanced 
as  it  is  in  consequence  of  His  Majesty's  license)  how  far  its  operation 
might  be  restrained  or  affected,  as  has  been  argued,  by  the  particular 
provision  in  this  policy,  that  "in  case  of  capture,  seizure,  or  detention, 
the  underwriter  should  pay  a  loss  within  two  months,  without  waiting 
for  condemnation  or  restitution."  All  these  points  are  immaterial,  with 
a  view  to  the  judgment  upon  this  case,  provided  the  property  insured 
be  in  virtue  of  the  King's  license,  for  the  purpose  of  the  insurance,  to 
be  considered  as  fully  legalized;  and  we  are  clearly  of  opinion  that 
it  ought  to  be  so  considered. 
Judgment  for  the  plaintiff'.^* 

14  In  Flindt  v.  Scott,  5  Taunt.  674  (1814).  it  was  held,  as  stated  in  the 
headnote,  that:' 

"A  license  to  G.  F.  &  Co.  of  London,  merchants,  on  behalf  of  themselves  and 
others,  to  export  on  board  a  ship  named,  bearing-  any  flag  except  the  French, 
to  a  hostile  port,  and  to  import  from  thence  specified  goods,  notwithstanding 
all  the  documents  may  represent  the  ship  to  be  destined  to  a  neutral  or  hos- 
tile port,  and  to  whomsoever  such  property  may  appear  to  belong,  authorizes 
an  enemy,  subject  of  the  hostile  countrj^  to  which  the  ship  is  licensed,  legally 
to  export  from  London." 

In  delivering  the  opinion  of  the  court,  Thomson,  C.  B.,  held  that,  the  license 
being  legal,  the  insurance  was  likewise  so ;  that  "the  sovereign  may,  during 
a  war,  equally  license  the  trading  of  any  of  his  subjects  with  an  enemy,  or 

Scott  Int.Law 


Ch.  7)  INTERCOURSE  BETWEEN  BELLIGERENTS  643 

license  enemies  to  trade  with  his  subjects" ;  that  licenses  were  to  be  liber- 
ally construed  "in  order  to  effectuate  the  benefits  intended  to  result  from 
them" ;  and  that  there  was,  in  the  present  instance,  "nothing,  either  in  the 
terms  of  the  license,  or  in  the  principles  of  public  policy,  which  ought  to  re- 
strict the  operation  of  the  authority  given  to  the  exportation  of  property 
belonging  to  the  subjects  of  this  country  only."    Id.  697. 

In  Williams  v.  Marshall,  6  Taunt.  390  (1815),  it  was  held  that  a  license  to 
export  "on  or  before  the  10th  September"  would  not  protect  an  exportation 
after  that  date. 

A  license  to  trade  is  not  assignable  (unless  clearly  general  in  its  terms  and 
intent).  Feize  v.  Thompson,  1  Taunt.  121  (1808)  ;  The  Acteon,  2  Dod.  48 
(1815).  If  subject  to  condition,  license  is  void  if  condition  is  not  complied 
with.    Camelo  v.  Britten,  4  B.  &  Aid.  184,  195  (1820): 

"We  have  arrived  at  this  conclusion  with  great  reluctance,  because  it  ap- 
pears that  in  this  case  there  was  no  intention  to  violate  the  law,  and  that 
this  was  the  usual  mode  of  carrying  on  the  trade.  We,  however,  feel  our- 
selves obliged  to  say  that  the  terms  of  the  license  have  not  been  complied  with  ; 
the  consequence  of  which  is,  that  the  plaintiff  cannot  recover"  (per  Abbott,  C. 
J.).    • 

License  to  one  set  of  British  merchants  cannot  be  used  to  cover  trading  by 
other  British  merchants,  without  connecting  them  together.  Busk  v.  Bell,  16 
East,  3  (1812).  Importation  of  more  goods  than  license  warrants  will  not 
vitiate  insurance  on  goods  licensed.  Pieschell  v.  Allnut,  4  Taunt.  792  (1813); 
Keir  v.  Andraade,  2  Marsh,  196  (1816).  License  as  to  goods  in  ship  will 
legalize  insurance  on  ship  and  competent  for  British  agent  of  both  parties,  in 
whose  name  insurance  was  effected,  to  sue  upon  the  policy  in  time  of  war. 
Kensington  v.  Inglis,  8  East,  273,  290  (1807). 

While  it  is  true  that  conditions  of  license  must  be  complied  with,  and  that 
trading  may  not  extesd  beyond  time  limited  in  the  license,  perils  of  the  sea, 
absence  of  laches,  and  fraud  wiU  extend  for  the  completion  of  the  voyage 
the  time  of  the  license.  Siffkin  v.  Glover,  4  Taimt.  717  (1813);  Siffken  v. 
Allnut,  1  M.  &  S.  39  (1813) ;  Freeland  v.  Walker,  4  Taunt.  478  (1812),  in 
which  Gibbs,  J.,  observed,  in  the  course  of  the  argument,  that  "there  had  been 
at  least  fifty  cases  in  the  King's  Bench,  where  the  plaintiffs  had  recovered, 
although  the  license  had  expired  at  the  time  of  the  loss,  and  it  never  had 
been  attempted  to  put  the  case  upon  the  point  of  the  license  being  expired  at 
the  time  of  the  capture." 

In  accordance  with  English  cases  and  the  general  practice  of  nations,  li- 
censes have  been  granted  by  the  United  States  in  the  course  of  its  wars.  It 
seems  to  be  settled  law  that  the  subject  may  be  regulated  by  act  of  Congress, 
or  it  is  believed  that  the  President  may  issue  licenses  without  a  specific  stat- 
ute to  that  effect.  In  Matthews  v.  McStea,  91  U.  S.  7,  10,  11,  23  L.  Ed.  188 
(1875),  Mr.  Justice  Strong,  delivering  the  unanimous  opinion  of  the  court, 
quoted  with  approval  the  following  passage  from  Halleck's  International 
Law,  677  (1861) : 

"In  the  United  States,  as  a  general  rule,  licenses  are  issued  under  the 
authority  of  an  act  of  Congress;  but  in  special  cases,  and  for  purposes  im- 
mediately connected  with  the  prosecution  of  the  war,  they  may  be  granted 
by  the  authority  of  the  President,  as  commander-in-chief  of  the 'military  and 
naval  forces  of  the  United  States." 

See  the  case  of  The  Sea  Lion,  5  Wall.  630,  18  L.  Ed.  618  (1866). 

In  Coppell  V.  Hall,  7  Wall.  542,  19  L.  Ed.  244  (1868),  the  question  of  licenses 
was  again  considered,  and  it  was  held,  inter  alia,  that  it  was  the  sovereign's 
prerogative  to  allow  or  disallow  trade  and  to  prescribe  the  manner  in  which 
trade,  if  permitted,  might  be  exercised ;  that  such  power  being  sovereign  in 
its  nature,  could  only  be  exercised  by  the  sovereign  or  his  duty  authorized 
agent,  and  that  a  military  commander,  as  such,  could  not  arrogate  to  him- 
self nor  exercise  such  power.  In  the  course  of  the  opinion  authorities,  English 
and  American,  are  cited  and  analyzed. 

For  the  theory  and  practice  of  the  United  States  in  the  matter  of  licensing 
trade  with  the  enemy,  and  for  a  rdsum^  of  the  decisions  of  courts  in  this 
country  and  in  England,  see  U.  S.  v.  One  Hundred  Barrels  of  Cement,  27  Fed 
Cas.  292,  No.  15,945,  3  Am.  Law  Register,  N.  S.  735  (1802). 


644  RIGHTS  AND  DUTIES  OF  NATIONS   IN   TIME   OF   WAE         (Part  3 

RICORD  V.  BETTENHAM. 

(King's  Bench,  1765.    1  W.  Bl.  563.) 

Action  on  the  case  against  the  master  of  the  ship  Syren,  on  a  ran- 
som bill,  given  by  the  defendant  to  the  plaintiff,  who,  in  the  late  French 
war,  was  captain  of  the  Badine,  privateer,  to  ransom  the  said  ship,  then 
taken  by  the  said  privateer.  On  non  assumpsit  pleaded,  and  the  trial 
of  the  issue  at  Guildhall,  the  following  special  facts  were  stated  for 
the  opinion  of  the  court,  subject  to  which,  the  jury  found  a  verdict 
for  the  plaintiff,  £236. :  "That  the  Syren  was  taken  by  the  Badine  four 
leagues  oft'  Cape  Negrillo,  24th  August,  1762.  That  the  plaintiff'  was 
a  natural-born  subject  of  the  French  king,  and  was  commissioned  by 
him,  and  that  the  defendant  was  a  natural-born  subject  of  Great  Britain, 
and  the  Syren  the  property  of  his  owners,  being  British  subjects. 
That  at  the  capture,  Joseph  Bell,  the  defendant's  mate,  was  given  as 
a  hostage;  and  the  plaintiff,  the  defendant,  and  the  said  Bell,  gave  and 
signed  the  ransom  bill,  24th  of  August,  1762,  which  ransom  bill  pur- 
ported :  'That  the  ship  (then  going  to  take  in  her  cargo  at  Lucca  Martha 
Brea),  and  her  captain,  were  ransomed  for  300  pistoles,  and  had  a 
month's  time  to  repair  to  her  destined  port ;  and  the  defendant  obliged 
himself  and  owners  to  pay  the  said  sum  within  two  months  after  date ; 
and  gave  his  said  mate  for  hostage,  whom  he  agreed  to  maintain  till 
the  day  of  payment.'  That  the  value  of  300  pistoles  was  £236.,  and  that 
the  Syren  was  of  greater  value.  That  Joseph  Bell,  the  hostage,  died 
in  prison,  at  Port  au  Prince,  12th  October,  1762.  That  the  Syren,  after 
said  ransom,  arrived  at  her  destined  port  of  Lucca  Martha  Brea. 
That  at  the  time  of  the  capture,  and  till  3d  November,  1762,  there  was 
actual  war  between  Great  Britain  and  France." 

Chambers,  for  the  plaintiff,  argued  that,  unless  some  special  reason 
be  assigned  to  the  contrary,  the  court  will  compel  the  execution  of  this 
contract.     Both  parties  are  able  to  contract.     *     *     * 

Dunning,  for  the  defendant.  This  is  an  action  of  the  first  impression 
in  this  or  any  other  country.     *     *     * 

Lord  Mansfield,  C.  J.  There  is  no  doubt,  but  the  master  has  a 
power  to  contract,  so  as  to  bind  his  owners.  These  ransom  bills  seem 
equally  for  the  benefit  of  the  captors,  who  are  thereby  enabled  to  pur- 
sue and  take  other  ships,  and  of  the  vanquished,  who  are  thereby  re- 
leased at  half  value.  But  if  it  be  tpue,  that  no  action  of  this  sort  is 
allowed  in  other  countries,  it  deserves  to  be  well  considered  before  we 
estabHsh  the  precedent.     Otherwise  upon  principles  I  have  no  doubt. 

Blackstone,  who  was  retained  for  a  second  argument  for  the  de- 
fendant (against  Norton,  Attorney  General,  for  the  plaintiff),  there- 
upon offered  to  make  enquiry  in  the  next  vacation  into  the  practice  of 
France  and  Holland. 


Ch.  7)  INTERCOURSE  BETWEEN  BELLIGERENTS  645 

Lord  Mansfie^ld.  Let  it  therefore  stand  over  upon  the  single  point 
of  that  enquiry. 

Afterwards,  in  Michaelmas  term,  Blackstone  acquainted  the  court, 
that  he  had  stated  the  case  to  M.  Meerman,  Pensionary  of  Rotterdam, 
and  M,  de  Beaumont,  Avocat  du  Parlement  de  Paris;  that  the  for- 
mer had  informed  him  that  the  case  had  never  happened  in  their 
courts,  but  that  he  and  all  the  lawyers  of  that  country,  whom  he  had 
consulted,  were  of  opinion,  that  such  an  action  would  be  sustained  in 
their  courts:  that  M.  de  Beaumont  (to  whom  the  case  was  stated  as 
between  an  Englishman  and  a  Spaniard)  was  entirely  of  the  same  opin- 
ion, and  added  that  the  very  case  had  a  few  years  before  been  decided 
in  the  ParHament  of  Normandy  in  favour  of  the  captors,  under  which 
the  parties  acquiesced. 

Lord  Mansfield,  C.  J.  I  imagined  the  enquiry  would  turn  out  as 
it  has  done.  Ransom  bills  are  to  be  encouraged,  as  lessening  the  hor- 
rors of  war.  Justice  ought  in  time  of  war  to  be  administered  to  for- 
eigners* in  our  courts  in  the  most  extensive  and  liberal  manner,  be- 
cause the  crown  cannot  here  interpose,  as  it  can  in  absolute  monarchies, 
to  compel  the  subject  to  do  justice,  in  an  extrajudicial  manner. 

Postea  to  the  plaintiff.*^ 

IB  In  The  Charming  Nancy,  Bun-ell  &  Marsden's  Admiralty  Cases.  398  (1761), 
it  appeared  that  the  ship  arrived  at  its  destined  port  and  had  unlivered  part 
of  its  cargo,  that  the  ransom  had  not  been  paid,  and  that  the  hostages  still 
remained  prisoners.  In  reply  to  the  question  whether  action  might  be  brought 
against  the  master  of  the  vessel  under  the  circumstances  in  that  case,  Sir 
George  Hay  delivered  the  following  opinion ; 

"In  the  first  instance  I  think  you  cannot  proceed  against  the  mastex*.  If 
the  ship  and  goods  will  not  produce  the  sum  stipulated  for  the  ransom,  and 
you  can  show  that  the  master  fraudulently  ransomed,  I  think  he  may  then 
be  prosecuted  on  behalf  of  the  hostages." 

In  the  case  of  The  Patrixent,  Burrell  &  Marsden's  Admiralty  Cases,  398 
(17S1),  William  Wynne  delivered  the  following  opinion: 

"I  think  that  the  owner  of  this  ransom  bill  ma:y  maintain  a  suit  in  the 
Court  of  Admiralty  for  the  recovery  of  the  sum  for  which  the  bill  was  given ; 
but  I  apprehend  they  must  make  it  appear  that  the  hostage  is  not  at  liberty, 
if  he  is  living,  before  they  can  obtain  payment  of  the  money.  The  proper  way 
of  commencing  such  a  suit  would  be  by  arresting  the  ransomed  ship  with  the 
cargo  on  board.  But  if  that  cannot  be  done,  I  think  it  will  be  sutBcient  to 
bring  the  suit  against  Lush,  the  master  who  drew  the  bill,  and  Messrs.  Glass- 
ford  &  Co..,  the  owners  of  the  vessel,  upon  whom  it  is  drawn." 

lu  Cornu  v.  Blackburne,  2  Douglas,  (J41  (1781),  an  enemy's  ship  which  had 
ransomed  a  British  vessel  being  recaptured  with  the  hostage  and  ransom 
bill  on  board,  but  the  bill  secreted  and  not  delivered  up  to  the  recaptor,  Lord 
Mansfield  held  that  the  first  captor  could  recover  upon  the  ransom  bill. 

In  Anthou  v,  Fisher,  3  Doug.  1G6  (17S2),  the  main  question  argued  was 
the  same  as  in  Cornu  v.  Blackburne.  Owing  to  a  difference  of  opinion 
among  the  judges  as  to  whether  the  common-law  court  had  jurisdiction,  judg- 
ment was  entered  pro  i'oima  for  the  plaintiff.  Upon  appeal,  the  judgment  of 
the  Iving's  Btoch  was  reversed,  the  judges  of  the  Common  Pleas  and  the 
Exchequer  unanimously  holding  that  an  alien  enemy  could  not,  by  the  munici- 
pal law  of  Great  Britain,  "sue  for  the  recovery  of  a  right  claimed  to  be  ac- 
quired by  him  in  actual  war." 

In  The  Hoop,  1  C.  Rob.  19G.  201  (1799).  Sir  William  Scott  said,  generally, 
that  an  alien  enemy  was  forbidden  to  sue  by  the  law  of  almost  every  country, 
and  he  added  that,  "even  in  the  case  of  ransoms  which  were  contracts,  but 
contracts  arising  ex  jure  belli,  and  tolerated  as  such,  the  enemy  was  not  per- 


646  EIGHTS  AND  DUTIES  OF  NATIONS   IN  TIME   OF  WAR         (Part  3 

GOODRICH  &  DE  FOREST  v.  GORDON. 
(Supreme  Court  of  New  York,  1818.    15  Johns.  6.) 

In  1813,  the  defendant,  jointly  with  certain  other  persons,  was 
owner  of  the  sloop  Hope,  and  he  authorized  one  Napier,  the  master 
of  the  sloop,  to  ransom  the  vessel  in  case  of  capture,  for  a  sum  not 
exceeding  two  thousand  dollars,  and  bound  himself  to  honor  the  bill 
if  so  drawn  upon.  During  the  voyage  the  Hope  was  captured  by  the 
British  frigate  Endymion,  and  was  ransomed  by  the  master  pursuant 
to  'defendant's  instructions  for  the  sum  of  $2,000,  for  which  amount 
he  drew  a  bill  upon  the  defendant. 

Thompson,  C.  J.,  delivered  the  opinion  of  the  court.^* 

There  can  be  no  doubt  that  the  contract  for  the  ransom  of  the  ves- 
sel was  a  lawful  contract.  Such  contracts  arc  sanctioned  by  the  laws 
of  nations,  and  are  not  deemed  a  trading  with  the  enemy,  2  Azuni', 
313 ;  nor  was  the  passport  given  by  the  captors,  upon  the  ransom,  and 
accepted  by  the  master  of  the  captured  vessel,  in  violation  of  the  act 
of  Congress  (2d  August,  1818).  It  was  merely  a  certificate,  given  by 
the  captors,  to  serve  as  a  passport,  and  protect  the  ransomed  vessel 
from  all  other  armed  vessels  belonging  to  the  nation  of  which  the  cap- 
tors were  subjects,  and  to  prevent  another  capture.  2  Azuni,  316.  It 
may,  perhaps,  come  within  the  exception  to  the  act  of  Congress  (2d 
section),  which  declares  that  the  Act  shall  not  prevent  the  acceptance 
of  a  passport,  granted  by  the  commander  of  any  ship  of  war  of  the 
enemy,  to  any  ship  or  vessel  of  the  United  States,  which  may  have 
been  captured  and  given  up,  for  the  purpose  of  carrying  prisoners, 
captured  by  the  enemy,  to  the  United  States.  Admitting,  however, 
that  the  instrument  given  in  the  case  before  us  is  not  the  one  contem- 
plated by  this  provision,  still,  I  think,  the  act  does  not  at  all  extend 
to  such  certificates. 

The  only  question  in  this  case,  then,  is  whether  the  defendant  is 
chargeable  as  an  acceptor  of  this  bill.     *     *     * 

Judgment  for  the  plaintiff.^® 

mitted  to  sue  in  his  own  proper  person  for  the  payment  of  the  ransom  bill; 
but  the  payment  was  enforced  by  an  action  brought  by  the  imprisoned  host- 
age in  the  courts  of  his  own  country,  for  the  recovery  of  his  freedom." 

By  an  act  of  22  Geo.  Ill,  c.  25  (1782),  ransom  coni^^cts  were  forbidden. 
Tn  an  "Act  for  Regulating  Naval  Prize  of  War,"  27  and  28  Vict,  c.  25,  §  45 
(1864),  the  subject  of  ransom  was  thus  treated : 

"Her  Majesty  in  Council  may  from  time  to  time,  in  relation  to  any  war, 
make  such  orders  as  may  seem  expedient,  according  to  circumstances,  for 
prohibiting  or  allowing,  wholly  or  in  certain  cases,  or  subject  to  any  condi- 
tions or  regulations  or  otherwise,  as  may  from  time  to  time  seem  meet,  the 
ransoming  or  the  entering  into  any  contract  or  agreement  for  the  ransoming 
of  any  ship  or  goods  belonging  to  any  of  Her  Majesty's  subjects,  and  taken 
as  prize  by  any  of  Her  Majesty's  enemies." 

ISA  shortened  statement  has  been  substituted  for  that  of  the  original  re- 
port and  part  of  the  opinion  is  omitted. 

19  In  his  Commentaries  on  American  Law,  vol.  1  (1st  Ed.  1826,  p.  99;  later 
editions,  p.  105),  Kent  quotes  the  principal  case  as  authority  for  the  state- 


Ch.  7)  INTERCOURSE  BETWEEN  BELLIGERENTS  647 

ANTOINE  V.  MORSHEAD. 

(Court  of  Common  Pleas,  1815.     6  Taunt.  237.) 

This  was  an  action  upon  five  bills  of  exchange,  all  drawn  by  the 
father  of  the  defendant,  a, British  subject,  on  the  12th  of  September, 
1806,  while  he  was  detained  a  prisoner  at  Verdun  in  France  during 
the  late  war  with  that  country,  payable,  some  to  Tyndall,  some  to  Est- 
wicke,  both  British  subjects  in  like  manner  detained  prisoners  there, 
at  one  year  after  date,  indorsed  to  the  plaintiff,  who  was  a  French 
subject  and  a  banker  at  Verdun,  and  accepted  by  the  defendant.  The 
cause  was  tried  at  Guildhall  at  the  sittings  after  Easter  term,  1815, 
before  Gibbs,  C.  J.,  when  it  was  contended  on  the  part  of  the  de- 
fendant, that  it  would  be  treason  to  pay  the  bills,  by  the  statute  34  G. 
Ill,  c.  9,  §§  1,  4.  Gibbs,  C.  J.,  refused  to  hear  the  objection:  he  did 
not  know  to  what  extent  it  might  be  carried,  but  if  it  could  be  sup- 
ported to  its  full  extent,  many  of  our  miserable  fellow  subjects  de- 
tained in  France  must  have  starved.  It  was  also  objected,  that  this 
being  a  contract  with  an  alien  enemy,  was  not  merely  suspended  dur- 
ing the  war,  but  absolutely  void ;  the  Chief  Justice  thought  otherwise, 
and  the  jury  found  a  verdict  for  the  plaintiff. 

Vaughan,  Serjt.,  on  a  former  day  in  this  term  moved  for  a  rule  nisi 
on  both  these  objections,  when,  it  being  suggested  on  the  part  of  the 
plaintiff,  that  the  statute  34  G.  Ill,  c.  9,  had  expired  at  the  peace  of 
1800  and  never  been  re-enacted,  the  court  gave  time  to  ascertain  that 
fact,  and  that  being  found  to  be  the  case,  Vaughan  now  moved  upon 
the  second  objection  only,  namely,  that  the  indorsement  of  the  bill 
to  an  alien  enemy  was  void.  For  this  he  cited  Anthon  v.  Fisher,  Doug. 
650,  note  to  Cornu  v.  Blackburne,  where  it  is  held  that  no  action  can 
be  maintained  by  an  alien  in  the  courts  of  tliis  country  on  a  ransom 
bill,  because  it  is  a  right  claimed  to  be  acquired  by  him  in  actual  war. 
Lord  Ashburton's  argument  in  Ricord  v.  Bettenham,  3  Burr.  1734, 
which  decision  is  overruled  by  Anthon  v.  Fisher,  is  to  be  called  in  aid. 
If  a  bond  be  given  to  an  alien  enemy,  it  is  good  quoad  the  obligor,  but 
void  quoad  the  obligee,  that  is,  it  enures  only  for  the  benefit  of  the 
crown.  And  if  so  of  a  bond,  the  law  must  be  the  like  on  a  bill  of  ex- 
change. So  is  it  of  contracts  of  insurance  made  with  an  alien  enemy. 
Flindt  V.  Waters,  15  East,  266,  Lord  Ellenborough,  C.  J.,  says  the  de- 
fense of  alien  enemy  may  go  to  the  contract  itself,  on  which  the  plain- 
tiff sues,  and  operate  as  a  perpetual  bar ;  though  in  that  case  the  con- 

ment  that  ransom  contracts  "have  never  been  prohibited  in  this  country;  and 
the  act  of  Congress, of  August  2,  181.8,  Inrerdictin?  the  use  of  British  licenses 
or  passes,  did  not  apply  to  the  contract  of  ransom." 

For  the  practice  of  nations  in  the  matter  of  ransom  bills,  see  Dana's  edition 
of  Wheaton's  Elements  of  Inteinational  Law  (1SC6)  506,  note  No.  199. 
•     On  the  general  subject  of  ransom,  see  the  elaborate  opinion  of  Mr.  Justice 
Story,  sitting  at  circuit,  in  Maisonnaire  v.  Keating,  2  Gall.  325,  Fed   Cas    No. 
8,978  (1815). 


648  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

tracting  party  having  become  an  enemy  after  the  contract,  it  was  held 
to  be  only  a  temporary  suspension  of  the  right  to  sue,  but  he  showed  a 
■disposition  to  confirm  the  cases  of  Brandon  v.  Nesbitt,  6  T.  R.  23,  and 
Bristow  V.  Towers,  6  T.  R.  35.  No  case  has  decided  that  a  contract 
made  with  an  alien  enemy  in  time  of  war  may  be  ever  afterwards  en- 
forced. Chief  Baron  Gilbert  lays  it  down,  that  upon  the  plea  of  alien 
enemy  the  right  of  the  plaintiff  is  forfeited  to  the  crown,  as  a  species 
of  reprisal  upon  the  state  committing  hostility, 

GiBBS,  C.  J.  It  will  not  be  useless  to  consider  what  legal  proposi- 
tions can  be  deduced  from  the  cases  cited  on  behalf  of  the  defendant, 
and  to  try  how  far  they  are  applicable  to  the  present  case.  This  is 
no  bill  of  exchange  drawn  in  favour  of  an  alien  enemy,  but  by  one  sub- 
ject in  favour  of  another  subject,  upon  a  subject  resident  here,  the 
two  first  being  both  detained  prisoners  in  France;  the  drawer  might 
legally  draw  such  a  bill  for  his  subsistence.  After  the  bill  is  so  drawn, 
the  payee  indorses  it  to  the  plaintiff,  then  an  alien  enemy.  How  was 
he  to  avail  himself  of  the  bill,  except  by  negotiating  it,  and  to  whom 
could  he  negotiate  it,  except  to  the  inhabitants  of  that  country  in  which 
he  resided?  I  can  collect  but  two  principles  from  the  cases  cited  by 
the  counsel  for  the  defendant,  and  they  are  principles  on  which  there 
never  was  the  slightest  doubt.  First,  that  a  contract  made  with  an 
alien  enemy  in  time  of  war  and  that  of  such  a  nature  that  it  endan- 
gers the  security,  or  is  against  the  policy  of  this  country,  is  void.  Such 
are  policies  of  insurance  to  protect  an  enemy's  trade.  Another  prin- 
ciple is,  that  however  valid  a  contract  originally  may  be,  if  the  party 
become  an  alien  enemy  he  cannot  sue.  The  crown,  during  the  war, 
may  lay  hands  on  the  debt,  and  recover  it,  but  if  it  do  not,  then,  on  the 
return  of  peace  the  rights  of  the  contracting  afien  are  restored,  and  he 
may  himself  sue.  No  other  principle  is  to  be  deduced.  The  first  may 
be  laid  out  of  the  case,  for  this  was  not  in  its  creation  a  contract  made 
with  an  alien  enemy.  The  second  question  is,  whether  the  bill  came 
to  the  hands  of  the  plaintiff"  by  a  good  title  ?  Under  the  circumstances 
of  this  case,  not  meaning  to  lay  down  any  general  rule  beyond  this 
case,  I  am  of  opinion  that  the  indorsement  to  the  plaintiff  conveyed  to 
him  a  legal  title  in  this  bill,  on  which  the  king  might  have  sued  in  the 
time  of  the  war,  and  he  not  having  so  done,  the  plaintiff  might  sue 
after  peace  was  proclaimed. 

Heath,  J.,  was  absent. 

Chambre,  J.  I  am  perfectly  of  the  same  opinion,  and  it  would  be 
of  verv  mischievous  consequence  if  it  were  otherwise. 

Dallas,  J.  This  is  not  a  contract  between  a  subject  of  this  country 
and  an  alien  enemy,  nor  is  it  a  contract  of  that  sort  to  which  the  prin- 
ciple can  be  applied.  That  principle  is,  that  there  shall  be  no  commu- 
nication with  the  enemy  in  time  of  war,  but  this  is  a  contract  between 
two  subjects  in  an  enemy's  country,  which  is  perfectly  legal. 

Rule  refused. 


Ch.  7)  INTERCOURSE    BETWEEN   BELLIGERENTS  649 

THE  DAIFJIE. 

(High  Court  of  Admiralty,  1800.    3  C.  Rob.  139.) 

Sir  W.  Scott.^"  These  are  two  Dutch  vessels,  captured  on  the  7th 
May,  and  claimed  as  cartel  ships.  The  question  is,  whether  from  the 
circumstances  under  which  they  were  taken,  they  are  to  be  considered 
under  the  protection  of  that  character  or  not.  It  is  a  practice  of  no 
very  ancient  introduction  among  the  states  of  Europe,  to  exchange 
prisoners  of  war  in  this  manner;  it  has  succeeded  to  the  older  prac- 
tice of  ransoming,  which  succeeded  to  the  still  more  ancient  practice 
of  killing,  or  carrying  them  into  captivity;  I  say  it  is  a  practice  of  no 
remote  antiquity,  because,  on  looking  into  Grotius,  I  find  not  a  word 
of  exchange,  in  the  sense  in  which  we  are  now  speaking  of  it.  It  is  a 
practice,  therefore,  which,  at  least  as  far  as  his  writings  seem  to  in- 
dicate, was  not  of  very  familiar  and  general  use  in  his  time,  though 
perhaps  not  altogether  unknown.  It  is,  however,  of  a  nature  highly 
deserving  of  every  favorable  consideration,  upon  the  same  principles 
as  are  all  other  commercia  belli,  by  which  the  violence  of  war  may 
be  allayed,  as  far  as  is  consistent  with  its  purposes,  and  by  which,  some- 
thing of  a  pacific  intercourse  may  be  kept  up,  which,  in  time,  may  lead 
to  an  adjustment  of  differences,  and  end  ultimately  in  peace.  At  the 
same  time,  it  is  highly  proper  that  it  should  be  conducted  with  very 
delicate  honor  on  both  sides,  so  as  to  leave  no  ground  of  suspicion,  that 
a  practice  introduced  for  the  common  benefit  of  mankind,  should  be 
made  a  stratagem  of  war,  or  become  liable  to  fraudulent  abuse.  I 
presume  the  terms  of  cartel  are  usually  settled  by  agreement  between 
the  two  states ;  in  the  present  instance,  we  are  not  informed  what  those 
terms  of  agreement  are ;  if  they  appeared,  there  might  perhaps  be  no 
question  left;  perhaps  the  very  letter  of  it  might  decide  the  present 
case ;  or,  supposing  it  not  to  be  within  the  letter,  it  might  still  be  with- 
in the  spirit  of  the  agreement,  liberally  construed.  Judging,  without 
such  information,  and  on  general  principles,  I  must  lay  it  down  as 
clear,  that  ships  are  to  be  protected  in  this  office,  ad  eundum  et  redeun- 
dum,  both  in  carrying  prisoners,  and  returning  from  that  service. 
Whether  there  is  any  stipulation  usually  made,  as  to  the  species  of 
ships  to  be  employed,  does  not  appear;  I  should  rather  understand 
from  the  return  made  by  the  transport  board,  that  there  is  not  any  stip- 
ulation on  this  point;  and  perhaps  it  may  be  immaterial,  whether  they 
are  merchant  ships,  or  ships  of  war,  that  are  so  employed.  It  may  in- 
deed be  possible  to  put  an  extreme  case,  in  which  the  nature  of  the 
ship  might  be  material ;  as,  if  a  fire  ship  was  to  be  sent  on  such  serv- 
ice to  Portsmouth  or  Plymouth,  though  she  had  prisoners  on  board, 
she  would  undoubtedly  be  an  unwelcome  visitor  to  a  naval  arsenal, 
and  her  particular  character  might  fairly  justify  a  refusal  to  admit 

zo  The  statement  of  facts  and  parts  of  opinion  are  omitted. 


650  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

her;  but,  in  general,  the  nature  of  the  vessel  does  not  appear  to  be  of 
consequence. 

A  particular  circumstance  in  this  case  is,  that  these  vessels  were 
not  actually  employed  as  cartel  ships,  nor  taken  in  trajectu  either  way, 
either  going  or  returning,  between  the  ports  of  the  two  belligerents ; 
they  were  not  in  the  actual  discharge  of  those  functions  which  would 
entitle  them  to  protection  eundo  et  redeundo,  for  they  were  going  from 
the  Texel  to  Flushing,  there,  as  they  say,  to  take  the  prisoners  on  board. 
It  is  the  employment,  and  not  the  future  intention,  that  protects ;  they 
ask  protection,  therefore,  beyond  the  reach  of  the  strict  principle,  which 
allows  it  only  eundo  and  redeundo.  I  think,  however,  that  the  pro- 
tection may  be  not  improperly  extended,  if  it  appears  that  they  had  in 
any  manner  entered  upon  their  functions,  by  being  put  into  a  state  of 
actual  preparation  and  equipment  for  their  employment.     *     *     * 


CRAWFORD  et  al.  v.  THE  WILLIAM  PENN. 

(Circuit  Court  of  the  United  States,  D.  New  Jersey,  1819.     3  Wash.  C.  C. 
484,  Fed.  Cas.  No.  3,373.) 

Washington,  Circuit  Justice. ^^  This  is  a  libel  founded  upon  a  bot- 
tomry bond,  executed  on  the  13th  of  April,  1813,  at  Jamaica;  by  the 
master  of  the  ship  William  Penn,  on  the  ship,  her  tackle,  and  apparel, 
for  the  necessary  repairs  and  outfit  of  the  ship,  to  enable  her  to  per- 
form her  voyage  from  that  island  to  the  United  States.  The  libel  states, 
that  the  libellants  did,  on  the  day  above  mentioned,  at  Port  Royal,  in 
the  island  of  Jamaica,  lend  on  bottomry,  on  the  said  ship,  her  freight, 
tackle,  and  apparel,  to  the  master  of  the  said  ship,  i  1,370.  8s.  4d.,  cur- 
rent money  of  Jamaica;  the  said  port  being  a  foreign  port,  and  none 
of  the  owners  of  the  said  ship  being  at  or  near  the  same ;  the  said 
captain  being  otherwise  unable  to  procure  the  necessary  moneys,  to  re- 
fit and  victual  the  said  ship,  to  complete  his  intended  voyage,  etc. ;  a 
copy  of  which  bond  is  annexed  to  the  libel,  as  part  thereof,  etc.  To 
this  libel,  ten  distinct  pleas  have  been  filed,  some  of  which,  with  the 
replications  to  them,  have  given  rise  to  the  questions  which  the  court 
is  now  called  upon  to  decide ;  and  which  may  be  comprised  under  the 
following  heads:  (1)  Whether  there  is  such  a  variance  between  the 
libel  and  the  bottomry  bond,  as  ought  to  prevent  a  decree  passing  in 
favour  of  the  libellants?  (2)  Whether  the  contract,  being  made  with 
alien  enemies,  is  void?  (3)  Whether  the  bond  is  void,  upon  the  ground 
that  the  advances  were  made,  not  to  enable  the  master  to  complete  his 
original  voyage,  which  was  to  Lisbon,  but  to  return  to  the  United 
States,  under  a  new  contract  to  bring  home  American  prisoners,  as  ap- 
pears from  the  pleadings  and  the  evidence  to  have  been  the  case? 
*     *     * 

2.  This  is  the  important  question  in  the  cause.     *     *     * 
21  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Ch.  7)  INTERCOURSE  BETWEEN  BELLIGERENTS  €51 

Having  disposed  of  these  preliminary  points,  we  come  to  the  consid- 
eration of  the  main  question — whether  this  contract,  being  made  with 
an  enemy,  is  void?  The  general  rule  is  admitted,  that  contracts,  made 
with  an  alien  enemy,  are  void.  Such  is  the  law  of  nations,  and  of 
most,  if  not  of  all,  the  civilized  nations  of  the  world.  The  English  and 
American  decisions  are  positive  in  the  establishment  of  this  doctrine. 
But  to  this,  as  to  most  general  rules,  there  are  exceptions.  Contracts, 
made  with  an  enemy,  under  the  license  of  the  government,  are  valid ; 
and  may,  in  certain  cases,  be  enforced  even  during  the  war ;  and  that, 
too,  whether  {he  contract  arose  directly  or  collaterally  out  of  such 
licensed  trade.  So,  if  the  enemy,  with  whom  the  contract  is  made, 
be  in  the  hostile  country  by  license  of  that  government.  So,  a  ransom 
bond,  given  to  an  enemy,  to  procure  the  discharge  of  the  property 
and  the  person  of  the  captured,  we  hold  to  be  valid.  Such  was  de- 
cided to  be  the  law  of  England,  in  the  case  of  Ricord  v.  Bettenham, 
3  Burrows,  1734,  and  in  Cornu  v.  Blackburne,  2  Doug.  641.  Such, 
too,  is  the  law  of  other  countries  on  the  continent  of  Europe.  We  are 
aware  of  the  decision  in  the  case  of  Anthon  v.  Fisher,  in  the  Ex- 
chequer, which  is  to  the  contrary  (2  Doug,  649,  note) ;  but,  never  hav- 
ing met  with  a  full  report  of  the  case,  it  is  not  easy  to  understand 
what  were  the  particular  reasons  which  led  to  that  decision.  How 
far  it  may  have  been  influenced  by  the  statute,  making  it  criminal  to 
give  a  ransom  bond,  which  had  passed  prior  to  this  decision,  but  after 
the  ransom,  is  not  clear.  At  all  events,  it  was  a  case  decided  long  after 
our  Declaration  of  Independence,  and  even  after  the  treaty  of  peace; 
and  is  therefore  not  to  be  considered  as  authority  in  the  courts  of  this 
country,  so  as  to  overrule  the  decision  in  Ricord  v.  Bettenham,  which 
was  made  in  1765. 

There  are  other  cases,  which  are  considered  as  exceptions,  even  in 
England,  where  the  general  rule  is  upheld  with  considerable  rigour, 
founded  upon  the  peculiar  necessity  of  the  case.  The  case  of  The  Ma- 
donna delle  Gracie,  4  C.  Rob.  Adm.  195,  is,  to  say  the  least  of  it,  a  very 
liberal  relaxation  of  the  general  rule.  It  would  seem,  from  the  modern 
cases,  that  contracts,  made  by  prisoners  of  war  in  the  enemy's  country, 
have  been  supported.  In  the  case  of  Sparenburgh  v.  Bannatyne,  1  Bos. 
&  P.  163,  Chief  Justice  Eyre  observes  that  "modem  civilization  has 
introduced  great  qualifications  to  soften  the  rigours  of  war,  and  allows 
a  degree  of  intercourse  with  enemies,  and  particularly  with  prisoners 
of  war,  which  can  hardly  be  carried  on  without  the  aid  of  our  courts 
of  justice."  The  other  judges  agree  with  him.  Recoveries  at  nisi 
prius,  we  understand,  are  common,  upon  contracts  made  with  the  en- 
emy by  prisoners  of  war,  upon  parol,  for  their  subsistence.  Willison 
V.  Patteson  (Easter  Term,  1817,  C.  P.)  7  Taunt.  439.  The  case  of 
Antoine  v.  Morshead,  6  Taunt.  237,  is  that  of  a  bill  of  exchange,  drawn 
on  England,  in  the  enemy's  country,  by  one  British  subject,  a  prisoner 
of  war,  in  favour  of  another  British  subject,  also  a  prisoner  of  war. 


652  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

and  by  him  endorsed  to  an  alien  enemy ;  in  which  case  the  contract 
was  supported.  It  is  true,  that  the  court  seems  to  rely  very  much  upon 
the  circumstance,  that  the  original  contract  was  between  British  sub- 
jects. But  it  is  impossible  not  to  perceive,  that  the  right  of  the  alien 
enemy  to  recover  upon  such  bill,  after  the  return  of  peace,  was  founded 
upon  a  new  contract  with  an  alien  enemy,  by  virtue  of  the  endorse- 
ment; and  that,  if  in  all  cases,  a  bill  drawn  by  one  subject  in  favour 
of  another,  may  pass,  by  endorsement,  into  the  hands  of  an  alien  en- 
emy, the  general  rule  of  law  might  be  indirectly  subverted.  We  under- 
stand this  case,  therefore,  as  going  the  full  length  of  establishing  an 
exception  to  the  general  rule,  in  favour  of  prisoners  of  war,  in  the 
country  of  the  enemy,  contracting  for  necessaries.  Chief  Justice  Gibbs 
seems  to  place  it  upon  this  ground  by  saying  that,  "if  the  objection 
could  be  supported  to  its  full  extent,  many  of  our  miserable  fellow 
subjects,  detained  in  France,  must  have  starved."  The  case  of  Daubuz 
V.  Morshead,  Id.  332,  is  a  case  like  the  former;  in  principle. 

The  principle  on  which  this  doctrine  is  founded,  is  strongly  sup- 
ported by  the  decision  of  the  supreme  court  of  the  United  States,  in 
the  case  of  Hallet  v.  Jenks,  3  Cranch  (7  U.  S.)  210,  2  L.  Ed.  414.,  That 
was  the  case  of  an  insurance  upon  a  cargo,  purchased  at  St.  Domingo, 
by  the  owner  of  an  American  vessel,  which  had  been  forced  into  that 
island  by  distress,  and  was  compelled  by  the  government  to  dispose  of 
her  outward  cargo,  with  the  proceeds  of  which  the  cargo  insured  was 
purchased.  The  objection  made  to  the  recovery  was  that  the  cargo 
so  insured  was  purchased  contrary  to  the  express  provisions  of  the  non- 
intercourse  law ;  and  that  the  trade,  being  therefore  illicit,  the  policy 
was  void.  But  the  Supreme  Court  maintained  the  validity  of  the  con- 
tract, upon  the  ground,  that  the  vessel  having  been  forced  into  the 
island  by  a  cause  which  could  not  be  resisted,  and  the  owner  having 
been  compelled  by  the  government  of  the  country  to  dispose  of  his 
cargo,  it  was  not  a  trading  contrary  to  the  spirit  of  the  law,  to  invest 
the  proceeds  in  a  return  cargo.  Now,  that  \yas  the  case  of  a  trading, 
as  expressly  prohibited  by  the  municipal  laws  of  the  United  States,  as 
a  trading  with  the  enemy  is  by  the  law  of  nations,  and  found  its  justi- 
fication in  a  necessit}',  not  imperious  and  irresistible,  but  one  which 
was  induced  by  a  desire  to  save  property.  The  owner  might  have 
avoided  a  breach  of  the  law,  strictly  construed,  if  he  had  chosen  to 
abandon  his  property.  But  the  court  was  of  opinion,  that  he  was  not 
bound  to  do  so,  notwithstanding  the  strong  and  unqualified  expressions 
of  the  law.  It  is  difficult  to  discover  a  difference,  in  principle,  between 
that  case  and  the  present.  In  both,  the  vessel  was  forced  into  a  for- 
bidden port  by  a  vis  major ;  in  both,  a  voluntary  trading  was  forbid- 
den; and  in  both,  the  contract,  which  would  have  been  void,  upon 
general  principles  of  law,  was  predicated  upon  a  necessity,  not  other- 
wise indispensable,  than  in  order  to  save  property.  There  is,  indeed, 
this  difference  between  the  two  cases,  which,  however,  is  all  on  the  side 


Ch.  7)  INTERCOURSE   BETWEEN  BELLIGERENTS  653 

of  the  validity  of  this  contract :  In  the  former,  the  master  mig^ht  have 
brought  away  his  vessel  and  crew,  with  no  other  loss  than  that  of  the 
cargo,  and  that  too,  from  a  nation  with  which  the  United  States  were 
at  peace;  whereas,  in  the  latter,  the  departure  of  both  depended  upon 
the  contract  now  objected  to,  and  that  from  the  country  of  the  enemy. 
We  cannot  take  leave  of  the  case  just  referred  to,  without  citing  cer- 
tain expressions  of  the  chief  justice,  applicable  to  a  case  precisely  like 
the  present.  He  observes  that  "even  if  an  actual  and  general  war  had 
existed  between  this  country  and  France,  and  the  plaintiff  had  been 
driven  into  a  French  port,  and  a  part  of  his  cargo  seized,  and  he  had 
been  permitted  by  the  officers  of  the  port  to  sell  the  residue,  and  to 
purchase  a  new  cargo;  I  am  of  opinion  that  it  would  not  have  been 
deemed  such  a  traffic  with  the  enemy  as  would  vitiate  the  policy  upon 
such  new  cargo." 

Had  the  hypothetical  case  been  the  very  case  before  the  court,  it 
would  have  been  directly  in  point,  and  would  have  gone  on  all  fours 
with  the  present.  It  corresponds,  however,  in  principle,  so  precisely 
with  the  main  case  decided,  that  the  opinion  of  this  learned  and  highly 
distinguished  judge  is  entitled  to  more  than  ordinary  respect.  The 
ground  which  the  court  takes  in  deciding  this  case  is,  that  the  contract 
grew  out  of  real  necessity,  produced  by  a  state  of  war,  and  was  itself 
the  offspring  of  an  act  of  hostility.  The  vessel  was  captured  as  prize 
of  war,  libelled  as  such,  and  on  account  of  her  having  a  British  license 
on  board,  was  acquitted.  She  was  disabled  from  availing  herself  of 
this  discharge,  and  returning  to  her  own  country  with  her  crew,  with- 
out being  repaired  and  victualled.  This  could  not  otherwise  be  effected, 
than  by  hypothecating  the  vessel  for  those  repairs  and  outfits.  In  a 
moral  point  of  view,  therefore,  it  cannot  be  said,  that  this  was  a  volun- 
tary contract.  The  decision  in  this  case,  can  never  be  relied  on  to 
sanction  contracts  with  the  enemy,  under  cover  of  a  pretended  neces- 
sity, or  in  wl)ich  there  is  the  slightest  tincture  of  fraud,  upon  the 
general  rule  of  law.  Upon  the  whole,  then,  we  are  of  opinion,  that  this 
bottomry  bond  is  not  void,  on  the  ground  of  its  being  a  contract  made 
with  enemy.     *     *     *  '^^ 

2-2  In  an  earlier  stage  of  the  case  (Crawford  et  al  v.  The  William  Penn,  1 
Peters,  C.  C,  106,  6  Fed.  Cas.  778,  780,  No.  3,372  [1815-]),  Mr.  Justice  Wash- 
ington thus  spoke  of  cartel  ships : 

"The  only  remaining  question  is,  can  a  contract,  made  with  an  alien  enemy, 
by  the  owner  or  master  of  a  cartel  vessel,  in  relation  to  the  navigation  of 
that  vessel,  upon  the  service  in  wliich  she  is  engaged,  be  enforced  in  a  court 
proceeding  according  to  the  rules  of  the  civil  law,  and  having  jurisdiction  of 
the  subject-matter?  What  is  the  character  of  a  cartel  vessel,  and  of  the 
persons  concerned  in  her  navigation?  The  flag  of  truce  which  she  carries, 
throws  over  her  and  them  the  mantle  of  peace.  She  is,  pro  hac  vice,  a  neu- 
tral licensed  vessel;  and  all  persons  concerned  in  her  navigation,  upon  the 
particular  service  in  which  both  l>elligerents  liave  employed  her,  are  neutral, 
in  respect  to  both,  and  under  the  protection  of  both.  She  cannot  carry  on 
commerce  under  the  protection  of  her  flag,  because  this  was  not  the  business 
for  which  she  was  employed,  and  for  which  the  immunities  of  that  flag  were 
granted  to  her.     She  is  engaged  in  a  special  service,  to  cari-y  prisoners  from 


654  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 


KERSHAW  V.  KELSEY. 

(Supreme  Court  of  Massachusetts,  1868.     100  Mass.  561,  97  Am.  Dec.  124,  1 

Am.  Rep.  142.) 

Gray,  J.  ^*  The  defendant,  a  citizen  of  Massachusetts,  in  February, 
1864,  in  Mississippi,  took  from  the  plaintiff,  then  and  ever  since  a 
citizen  and  resident  of  Mississippi,  a  lease  for  one  year  of  a  cotton 
plantation  in  that  state,  and  therein  agreed  to  pay  a  rent  of  ten  thou- 
sand dollars,  half  in  cash,  and  half  "out  of  the  first  part  of  the  cotton 
crop,  which  is  to  be  fitted  for  market  in  reasonable  time."  The  les- 
sor also  agreed  to  deliver,  and  the  lessee  to  receive  and  pay  the  value 
of  the  corn  then  on  the  plantation.  It  does  not  appear  whether  the 
defendant  went  into  Mississippi  before  or  after  the  beginning  of  the 
war  of  the  rebellion;  and  there  is  no  evidence  of  any  intent  on  the 
part  of  either  party  to  violate  or  evade  the  laws,  or  oppose  or  injure 
the  government  of  the  United  States.     The  defendant  paid  the  first 

one  place  to  another;  and,  whilst  so  engaged,  she  is  under  the  protection  of 
both  belligerents,  in  relation  to  every  act  necessarily  connected  with  that 
service.  It  follows,  that  all  contracts  made  for  equipping  and  fitting  her  for 
this  service,  are  to  be  considered  as  contracts  made  between  friends,  and  con- 
sequently ought  to  be  enforced  in  the  tribunals  of  either  belligerents,  having 
jurisdiction  of  the  subject.  The  agreement  of  the  two  nations,  by  their 
agents,  to  make  her  a  cartel,  amounts  to  a  license  by  both,  to  perform  the 
service  in  which  she  is  employed,  and  sanctifies  all  the  means  necessary  to 
that  end." 

The  cartel  need  not  be  concluded  during,  but  may  be  made  in  peace  in 
anticipation  of  war.  The  Carolina,  6  C.  Rob.  336  (1807) ;  as  it  effects  the  ex- 
change of  prisoners,  it  is  confined  to  the  belligerents,  The  Rose  in  Bloom,  1 
Dod.  57,  60  (1811). 

Vessels  actually  employed  under  the  agreement  are  protected  both  going 
and  coming  in  the  line  of  duty,  but  vessels  about  to  enter  or  sailing  with  the 
Intention  of  entering  into  the  service  on  reaching  a  particular  port  are  not 
thus  privileged  and  protected,  The  Daifjie,  3  C.  Rob.  139,  141  (1800)  ;  a  formal 
contract  is  the  rule,  but  an  informal  agreement,  followed  by  use  as  cartel 
ship,  will  be  enforced,  La  Gloire,  5  C.  Rob.  192  (1804) ;  a  cartel  ship  is 
primarily  for  the  ransom  of  prisoners,  but  not  exclusively  so ;  it  may  there- 
fore be  used  to  carry  into  effect  previous  treaty  stipulations  of  the  contracting 
parties.  The  Carolina,  supra ;  the  court  construes  the  cartel  liberally  and 
is  satisfied  with  a  bona  fide  and  substantial  performance  of  the  requirements, 
but  trade  of  all  kinds  carried  on  in  the  vessel  subjects  the  cargo.  La  Rosine,  2 
C.  Rob.  372  (1800) ;  and  at  times  the  vessel  to  confiscation.  The  Venus,  4  C. 
Rob.  355  (1803) ;  merchandise  carried  by  express  permission  will  not,  though 
goods  carried  in  excess  of  the  permission  will  be  confiscated.  The  Carolina, 
supra;  prisoners  carried  home  are  bound  to  refrain  from  hostilities  of  all 
kinds  on  board,  hence  capture  or  recapture  from  the  enemy  of  a  vessel  of 
their  own  country  is  illegal  and  vests  no  title  in  the  captor.  The  Mary,  5 
C.  Rob.  200  (1804)  ;  a  cartel  is  not  a  treaty  in  the  sense  of  the  Constitution, 
and  the  cartel  for  the  exchange  of  prisoners,  between  the  United  States  and 
Great  Britain,  in  1813,  was  ratified  bv  the  Secretary  of  State,  not  the  Senate 
<May  14),  2  Halleck,  (4th  Ed.,  1908)  362;  but,  when  concluded,  it  is  of  such 
force  that  the  sovereign  power  may  not  annul  it,  Henderson's  Case,  2  Pitts- 
burg, R.  440  (1863).  See  case  last  cited  for  the  question  of  parole,  and  for  the 
matter  of  capitulation,  see  Rucker's  Case,  1  Am.  Law  Kev.  217  (1866). 

23  Only  a  portion  is  given  of  the  opinion  of  the  learned  judge. 


Ch.  7)  INTERCOURSE  BETWEEN  BELLIGERENTS  ^o5' 

instalment  of  rent,  took  possession  of  the  plantation  and  corn,  used 
the  corn  on  the  plantation,  provided  it  with  supplies  to  the  amount  of 
about  five  thousand  dollars,  and  planted  and  sowed  it,  but  early  in 
March  was  driven  away  by  rebel  soldiers  and  never  returned  to  the 
plantation,  except  once  in  April  following,  after  which  he  came  back 
to  Massachusetts.  The  plaintiff  continued  to  reside  on  the  plantation, 
raised  a  crop  of  cotton  there,  and  delivered  it  in  Mississippi  to  the  de- 
fendant's son,  by  whom  it  was  forwarded  in  the  autumn  of  the  same 
year  to  the  defendant ;  and  he  sold  it  and  retained  the  profits  amount- 
ing to  nearly  ten  thousand  dollars. 

The  plaintiff  sues  for  the  unpaid  instalment  of  rent  and  the  value 
of  the  corn.  The  claims  made  in  the  other  counts  of  the  declaration 
have  been  negatived  by  the  special  findings  of  the  jury. 

The  defendant,  in  his  answer,  denied  all  the  plaintiff's  allegations; 
and  at  the  trial  contended  that  the  lease,  having  been  made  during  the 
civil  war,  was  illegal  and  void,  as  well  by  the  principles  of  interna- 
tional law,  as  by  the  terms  of  the  act  of  Congress  of  1861,  c.  3,  §  5, 
and  the  proclamations  issued  by  the  President  under  that  act,  declaring 
"all  commercial  intercourse  by  and  between"  the  state  of  Mississippi 
and  other  states  in  which  the  insurrection  existed  "and  the  citizens 
thereof,  and  the  citizens  of  the  rest  of  the  United  States,"  to  be  un- 
lawful so  long  as  such  condition  of  hostility  should  continue,  and 
that  "all  goods  and  chattels,  wares  and  merchandise,"  coming  from 
such  states  into  other  parts  of  the  United  States,  or  proceeding  to  such 
states  by  land  or  water,  together  with  the  vessel  or  vehicle  conveying 
them,  or  conveying  persons  to  or  from  such  states,  without  the  license 
of  the  President,  should  be  forfeited  to  the  United  States.  12  U.  S. 
Sts.  at  Large,  257,  1262;   13  Id.  731. 

The  judge  presiding  at  the  trial  ruled  that  the  contracts  sued  on 
were  legal,  and  the  jury  having  returned  a  verdict  for  the  plaintiff, 
the  question  of  the  correctness  of  this  ruling  is  reported  for  our  deci- 
sion ;  the  parties  agreeing  that,  if  the  ruling  was  correct,  the  case 
shall  be  sent  to  an  assessor;  but  if  incorrect,  judgment  shall  be  en- 
tered for  the  defendant. 

This  case  presents  a  very  interesting  question,  requiring  for  its  de- 
cision a  consideration  of  fundamental  principles  of  international  law. 
It  is  universally  admitted  that  the  law  of  nations  prohibits  all  com- 
mercial intercourse  between  belligerents,  without  a  license  from  the 
sovereign.  Some  dicta  of  eminent  judges  and  learned  commentators 
would  extend  this  prohibition  to  all  contracts  whatever.  In  a  matter 
of  such  grave  importance,  the  safest  way  of  arriving  at  a  right  result 
will  be  to  examine  with  care  the  principal  adjudications  upon  the  sub- 
ject, most  of  which  were  cited  in  the  argument.     *     *     *  24 

24  The  cases  to  which  the  learned  justice  referred  were  the  following:  The 
Hoop,  1  C.  Rob.  196  (1799) ;  The  Irfdian  Chief,  3  C.  Rob.  22  (1800) :  Sander- 
son V.  Morgan,  39  N.  Y.  231  (1S6S) ;    Mayor,  etc.,  of  City  of  New  York  v. 


656  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OP  WAR         (Part  3 

The  result  is,  that  the  law  of  nations,  as  judicially  declared,  prohib- 
its all  intercourse  between  citizens  of  the  two  belligerents  which  is  in- 
consistent with  the  state  of  war  between  their  countries ;  and  that 
this  includes  any  act  of  voluntary  submission  to  the  enemy,  or  receiv- 
ing his  protection ;  as  well  as  any  act  or  contract  which  tends  to  in- 
crease his  resources;  and  every  kind  of  trading  or  commercial  deal- 
ing or  intercourse,  whether  by  transmission  of  money  or  goods,  or 
orders  for  the  delivery  of  either,  between  the  two  countries,  directly 
or  indirectly,  or  through  the  intervention  of  third  persons  or  partner- 
ships, or  by  contracts  in  any  form  looking  to  or  involving  such  trans- 
mission, or  by  insurances  upon  trade  with  or  by  the  enemy.  Beyond 
the  principle  of  these  cases  the  prohibition  has  not  been  carried  by  ju- 
dicial decision.  The  more  sweeping  statements  in  the  text  books  are 
taken  from  the  dicta  which  we  have  already  examined,  and  in  none 
of  them  is  any  other  example  given  than  those  just  mentioned.  At 
this  age  of  the  world,  when  all  the  tendencies  of  the  law  of  nations 
are  to  exempt  individuals  and  private  contracts  from  injury  or  re- 
straint in  consequence  of  war  between  their  governments,  we  are  not 
disposed  to  declare  such  contracts  unlawful  as  have  not  been  hereto- 
fore adjudged  to  be  inconsistent  with  a  state  of  war. 

The  trading  or  transmission  of  property  or  money  which  is  prohib- 
ited by  international  law  is  from  or  to  one  of  the  countries  at  war.  An 
alien  enemy  residing  in  this  country  may  contract  and  sue  like  a  citi- 
zen.   2  Kent,  Com.  63.     When  a  creditor,  although  a  subject  of  the 

Erben,  38  N.  T.  308  (1868) ;  Whelan  v.  Cook,  29  Md.  1  (1868) ;  Bell  v.  Chapman, 
10  Johns.  (N.  Y.)  1&3  (1813) ;  Ricord  v.  Bettenham,  3  Burr.,  1734 ;  Id.,  1  W. 
Bl.  563  (1765) ;  Anthon  v.  Fisher,  2  Dou:?.  650,  3  Doug.  178  (1782) ;  Brandon 
V.  Nesbitt,  6  Term  R.  23  (1794);  Hutchinson  v.  Brock,  11  Mass.  119,  122 
(1814);  Sparenburgh  v.  Bannatyne,  1  Bos.  &  P.  163  (1797);  McCounell  v. 
Hector,  3  Bos.  &  P.  113  (1802) :  West  v.  Sutton,  2  Ld.  Raym.  853,  1  Salk.  2, 
Holt,  3  (1703)  ;  Vanbrynen  v.  Wilson,  9  East,  321  (1808):  Buckley  v.  Lyttle, 
10  Johns.  (N.  Y.)  137  (1813);  Owens  v.  Hanney.  9  Cranch,  180,  3  L.  Ed.  697 
(1815);  Potts  V.  Bell,  S  Term  R  548  (1800);  Ant'oine  v.  Morshead,  6  Taunt. 
2.37  (1815) ;  Id..  1  Marsh.  558  (1815) ;  Willison  v.  Patteson.  1  Moore.  133 
(1817) ;  Id.,  7  Taunt.  440  (1817) ;  Esposito  v.  Bowden,  7  El.  &  Bl.  763  (1857)  ; 
Hannay  v.  Eve,  3  Cranch,  242,  2  L.  Ed.  427  (1806) ;  Kennett  v.  Chambers,  14 
How.  38,  14  L.  Ed.  316  (1852) ;  Thirty  Hogsheads  of  Sugar  v.  Boyle.  0 
Cranch,  191,  3  L.  Ed.  701  (1815);  Prize  Cases,  2  Black.  635,  17  L.  Ed.  459 
(1862) ;  The  Rapid,  1  Gall.  295,  Fed.  Cas.  No.  11,576  (1812) ;  The  Julia,  1  Gall. 
594,  601-604,  Fed.  Cas.  No.  7,575  (1813) ;  The  Emulous,  1  Gall.  563,  571,  Fed. 
Cas.  No.  4,479  (1813) ;  Brown  v.  Unifed  States,  8  Cranch.  110,  3  L.  Ed.  504 
(1814)  ;  The  Rapid,  8  Cranch,  155,  3  L.  Ed.  520  (1814) ;  The  Joseph,  1  Gall. 
545.  Fed.  Cas.  No.  7,533  (1813) ;  Id.,  8  Cranch,  451,  3  L.  Ed.  621  (1814);  Schole- 
field  V.  E]ichelbcrger,  7  Pet.  586,  8  L.  Ed.  793  (1833);  Jecker  v.  Montgomery,  18 
How.  110,  15  L.  Ed.  311  (1855);  Hanger  v.  Abbott,  6  Wall.  532,  18  L.  Ed. 
939  (1867)  ;  The  Ouachita  Cotton,  6  Wall.  521,  18  L.  Ed.  935  (1867);  United 
States  V.  Lane,  8  Wall.  185,  19  L.  Ed.  445  (1808);  McKee  v.  United  States.  8 
Wall.  1&3,  19  L.  Ed.  329  (1868) ;  Griswold  v.  Waddington,  16  Johns.  (N.  Y.) 
438  (1819);  Clarke  v.  Morey,  10  Johns.  (N.  Y.)  69,  71,  72  (1813) ;  Mr^  Alexan- 
der's Cotton,  2  Wall.  404,  17  L.  Ed.  915  (1864);  Ex  parte  Boussmaker,  13 
Ves.  Jr.  71  (1806) ;  Coolidge  v-  Inglee,  13  Mass.  26  (1816);  Patten  v.  Nicholson, 
3  Wheat.  204,  4  L.  Ed.  371  (1818)  ;  Capen  v.  Barrows,  1  Gray  (Mass.)  376,  380 
(1854) ;   Musson  v.  Fales,  16  Mass.  332  (1820). 


Ch.  7)  INTERCOURSE   BETWEEN  BELLIGERENTS  657 

enemy,  remains  in  the  country  of  the  debtor,  or  has  a  known  agent 
there  authorized  to  receive  the  amount  of  the  debt,  throughout  the 
war,  payment  there  to  such  creditor  or  his  agent  can  in  no  respect  be 
construed  into  a  violation  of  the  duties  imposed  by  a  state  of  war 
upon  the  debtor ;  it  is  not  made  to  an  enemy,  in  contemplation  of  in- 
ternational or  municipal  law;  and  it  is  no  objection  that  the  agent 
may  possibly  remit  the  money  to  his  principal  in  the  enemy's  country ; 
if  he  should  do  so,  the  offence  would  be  imputable  to  him,  and  not  to 
the  person  paying  him  the  money.  Conn  v.  Penn,  Peters,  C.  C.  496, 
Fed.  Cas.  No.  3,104;  Denniston  v.  Imbrie,  3  Wash.  C.  C.  396,  Fed. 
Cas.  No.  3,802;  Ward  v.  Smith,  7  Wall.  447,  19  L.  Ed.  207;  "Buchan- 
an V.  Curry,  19  Johns.  137,  10  Am.  Dec.  200.  The  same  reasons  cover 
an  agreement  made  in  the  enemy's  territory  to  pay  money  there  out 
of  funds  accruing  there  and  not  agreed  to  be  transmitted  from  within 
our  own  territory;  for,  as  was  said  by  the  Supreme  Court  of  New 
York,  in  the  case  last  cited,  "The  rule  is  founded  in  public  policy,  which 
forbids,  during  war,  that  money  or  other  resources  shall  be  trans- 
ferred so  as  to  aid  or  strengthen  our  enemies.  The  crime  consists  in 
exporting  the  money  or  property,  or  placing  it  in  the  power  of  the 
enemy."      *     *     * 

The  lease  now  in  question  was  made  within  the  rebel  territory  where 
both  parties  were  at  the  lime,  and  would  seem  to  have  contemplated 
the  continued  residence  of  the  lessee  upon  the  demised  premises 
throughout  the  term;  the  rent  was  in  part  paid  on  the  spot,  and  the 
residue,  now  sued  for,  was  to  be  paid  out  of  the  produce  of  the  land ; 
and  the  corn,  the  value  of  which  is  sought  to  be  recovered  in  this  ac- 
tion, was  delivered  and  used  thereon.  No  agreement  appears  to  have 
been  made  as  part  of  or  contemporaneously  with  the  lease,  that  the  cot- 
ton crop  should  be  transported,  or  the  rent  sent  back,  across  the  line 
between  the  belligerents,  and  no  contract  or  communication  appears  to 
have  been  made  across  that  line,  relating  to  the  lease,  the  delivery  of 
possession  of  the  premises  or  of  the  corn,  or  the  payment  of  the  rent 
of  the  one  or  the  value  of  the  other.  The  subsequent  forwarding  of 
the  cotton  by  the  defendant's  son  from  Mississippi  to  Massachusetts 
may  have  been  unlawful;  but  that  cannot  affect  the  validity  of  the 
agreements  contained  in  the  lease.  Neither  of  these  agreements  in- 
volved or  contemplated  the  transmission  of  money  or  property,  or 
other  communication,  between  the  enemy's  territory  and  our  own.  We 
are  therefore  unanimously  of  opinion  that  they  did  not  contravene 
the  law  of  nations  or  the  public  acts  of  the  government,  even  if  the 
plantation  was  within  the  enemy's  lines ;  and  that  the  plaintiff,  upon 
the  case  reported,  is  entitled  to  recover  the  unpaid  rent,  and  the  value 
of  the  corn.     *     *     *  25 

2  6  It  may  not  be  without  interest  to  note  that  a  friendly  letter  written  by 
Mr.  Caleb  Gushing  to  Mr.  Jefferson  Davis,  after  outbreuii  of  the  Civil  War, 
Scorr  Int.Law— 42 


658  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OP  WAR         (Part  3 

both  having  been  members  of  President  Pierce's  Cabinet,  prevented  Cushing's 
confirmation  as  Chief  Justice  of  the  United  States  in  1874. 

In  a  special  message  dated  January  13,  1874,  to  the  Senate  of  the  United 
States,  President  Grant  said: 

"Since  nominating  Hon.  Caleb  Gushing  for  Chief  Justice  of  the  Supreme 
Court  of  the  United  States,  information  has  reached  me  which  induces  me  to 
withdraw  him  from  nomination  as  the  highest  judicial  officer  of  the  govern- 
ment, and  I  do  therefore  hereby  withdraw  said  nomination."  7  Richardson's 
Messages  and  Papers  of  the  Presidents,  1789-1897,  259  (1898). 

The  London  Gazette  of  December  13,  1921,  No.  32547,  p.  10123,  contains  the 
following  announcement : 

"British  Nationality  and  Status  of  Aliens  Acts,  1914  and  1918. 

"In  the  Matter  of  Sir  Edgar  Speyer,  Bt. 

"Revocation  of  Certificate  of  Naturalization. 

"Whereas,  I  am  satisfied,  as  the  result  of  an  enquiry  conducted  by  the 
Certificates  of  Naturalization  (Revocation)  Committee,  that  Sir  Edgar  Speyer, 
Baronet,  a  member  of  His  Majesty's  Most  Honourable  Privy  Council,  to  whom 
a  certificate  of  naturalization  number  A  7015  was  granted  on  the  29th 
February,  1892,  (1)  has  shown  himself  by  act  and  speech  to  be  disaffected 
and  disloyal  to  His  Majesty ;  and  (2)  has,  during  the  war  in  which  His 
Majesty  was  engaged,  unlawfully  communicated  with  subjects  of  an  enemy 
state  and  associated  with  a  business  which  was  to  his  knowledge  carried  on 
in  such  manner  as  to  assist  the  enemy  in  such  war  ;* 

"And  whereas,  I  am  satisfied  that  the  continuance  of  the  said  certificate 
is  not  conducive  to  the  public  good: 

"Now,  therefore,  by  this  order,  made  in  pursuance  of  the  powers  conferred 
on  me  by  section  7  of  the  British  Nationality  and  Status  of  Aliens  Act,  1914, 
I  revoke  the  said  certificate;  and  I  direct  such  revocation  to  have  effect  from 
the  date  hereof;  and  I  further  order  the  said  certificate  to  be  given  up  and 
to  be  cancelled;  and  I  further  direct  that  Leonora  Speyer,  the  wife  of  the 
said  Sir  Edgar  Speyer,  and  Pamela  Speyer,  Leonora  Speyer,  and  Vivien  Clare 
Speyer,  the  minor  children  of  the  said  Sir  Edgar  Speyer.  shall  cease  to  be 
British  subjects.  Edward  Shortt, 

"One  of  His  Majesty's  Principal  Secretaries  of  State. 

"Whitehall,  1st  December,  1921. 

•Note. — This  finding  does  not  involve  any  reflection  upon  any  partner  In  the  firm  of  Spey- 
er Brothers,  London,   other  than  Sir  Edgar  Speyer. 

"At  the  Court  at  Buckingham  Palace,  the  13th  day  of  December,  1921. 

"Present:     The  King's  Most  Excellent  Majesty  in  Council. 

"It  is  this  day  ordered  by  His  Majesty  in  Council  that  the  name  of  Sir 
Edgar  Speyer,  Bt,  be  struck  out  of  the  list  of  His  Majesty's  Most  Honourable 
Privy  Council.  "Almeric  FitzRoy." 

ScoTT  Int.Law 


Cll.8)  DOMICILE  659 

CHAPTER  VIII 
DOMICILE 


THE  INDIAN  CHIEF. 
(High  Court  of  Admiralty,  1801.    3  C.  Rob.  12.) 

Sir  W.  ScoTT.i  'j^l^ig  is  the  case  of  a  ship  seized  in  the  port  of 
Cowes,  where  she  came  to  receive  orders  respecting  the  deHvery  of  a 
cargo  taken  in  at  Batavia,  with  a  professed  original  intention  of  pro- 
ceeding to  Hamburg;  but  on  coming  into  this  country  for  particular 
orders,  the  ship  and  cargo  were  seized  in  port.  It  does  not  appear 
clear  to  the  court  that  it  might  not  be  a  cargo  intended  to  be  delivered 
in  this  country,  as  many  such  cargoes  have  been,  under  the  Dutch 
property  act.  I  mention  this  to  meet  an  observation  that  has  been 
thrown  out,  "that  it  is  doubtful  whether  the  ship  might  not  be  confis- 
cable on  the  ground  of  being  a  neutral  ship  coming  from  a  colony  of 
the  enemy,  not  to  her  own  ports  or  to  the  ports  of  this  country."  I 
cannot  assume  it  as  a  demonstrated  fact  in  the  case,  that  the  cargo 
was  to  be  delivered  at  Hamburg.  The  vessel  sailed  in  1795,  and  as 
an  American  ship  with  an  American  pass,  and  all  American  docu- 
ments; but  nevertheless  if  the  owner  really  resided  here,  such  papers 
could  not  protect  his  vessel.  If  the  owner  was  resident  in  England, 
and  the  voyage  such  as  an  English  merchant  could  not  engage  in,  an 
American  residing  here,  and  carrying  on  trade,  could  not  protect  his 
ship  merely  by  putting  American  documents  on  board.  His  interest 
must  stand  or  fall  according  to  the  determination  which  the  court 
shall  make  on  the  national  character  of  such  a  person. 

There  are  two  positions  which  are  not  to  be  controverted ;  that  Mr. 
Johnson  is  an  American  generally  by  birth,  which  is  the  circumstance 
that  first  impresses  itself  on  the  mind  of  the  court;  and  also  by  the 
part  which  he  took  on  the  breaking  out  of  the  American  war.  He 
came  hither  when  both  countries  were  open  to  him ;  but  on  the  break- 
ing out  of  hostilities  he  made  his  election  which  country  he  would  ad- 
here to,  and  in  consequence  thereof  went  to  France.  As  to  the  doubt 
that  has  been  suggested  whether  he  would  be  deemed  an  American,  not 
having  been  personally  there  at  the  time  of  the  declaration  of  the  inde- 
pendence of  that  country,  I  think  that  is  sufficiently  cleared  up,  by  the 
circumstance  of  his  being  adopted  as  such  by  the  act  of  the  American 
government,  declaring  him  and  his  family  to  be  American  subjects,* 
and  by  the  official  character  which  that  government  has  intrusted  to 

1  Statement  of  the  case  Is  omitted. 

2  January  15,  17S5. 


G60  RIGHTS  AND  DUTIES  OF  NATIONS   IN  TIME  OF  WAR         (Part  3 

him.  I  am  of  opinion,  therefore,  that  he  has  not  lost  the  benefit  of 
his  native  American  character.  He  came,  however,  to  this  country  in 
1783,  and  engaged  in  trade,  and  has  resided  in  this  country  till  1797. 
During  that  time  he  was  undoubtedly  to  be  considered  as  an  English 
trader;  for  no  position  is  more  established  than  this,  that  if  a  person 
goes  into  another  country  and  engages  in  trade,  and  resides  there,  he 
is,  by  the  law  of  nations,  to  be  considered  as  a  merchant  of  that  coun- 
try. I  should  therefore  have  no  doubt  in  pronouncing  that  Mr.  John- 
son was  to  be  considered  as  a  merchant  of  this  country  at  the  time  of 
sailing  of  this  vessel  on  her  outward  voyage.  That  leads  me  to  take 
a  view  of  the  circumstances  of  this  case;  the  ship  went  out  in  1795 
with  Mr.  Hewlet  on  board,  and  Mr.  Johnson  says  "he  sent  out  Mr. 
Hewlet  as  supercargo,  and  put  the  vessel  under  his  control  to  take 
freight  for  America,  but  that  his  designs  were  frustrated  by  various 
circumstances;"  and  the  ship  actually  went  to  Madeira,  Madras, 
Tranquebar,  and  Batavia,  and  from  thence  to  Cowes  where  she  was 
arrested. 

Now  there  can  be  no  doubt  that  if  Mr.  Johnson  had  continued  where 
he  was  at  the  time  of  sailing,  if  he  had  remained  resident  in  England, 
it  must  be  considered  as  a  British  transaction,  and  therefore  a  criminal 
transaction,  on  the  common  principle  that  it  is  illegal  in  any  person 
owing  an  allegiance,  though  temporary,  to  trade  with  the  public  enemy. 
Btit  it  is  pleaded  that  he  had  quitted  this  country  before  the  capture, 
and  that  he  had  done  this  in  consequence  of  an  intention  which  he 
had  formed  of  removing  much  earlier,  but  that  he  had  been  prevented 
by  obstacles  that  obstructed  his  wish.  To  this  effect  the  letter  of 
March,  1797,  is  exhibited,  which  must  have  been  preceded  by  private 
correspondence  and  application  to  some  of  his  creditors.  It  does,  I 
think,  breathe  strong  expressions  of  intention,  and  of  an  ardent  de- 
sire to  get  over  the  restraint  that  alone  detained  him;  and  it  affords 
conclusive  reason  to  believe  that  if  he  had  been  a  free  man,  and  at 
liberty  to  go  where  he  pleased,  he  would  have  removed  long  before; 
and  that  he  was  detained  here  as  a  hostage,  as  he  describes  himself,  to 
his  creditors,  on  motives  of  honor  creditable  to  his  character.  On 
the  9th  of  September,  1797,  he  did  actually  retire.  Of  the  sincerity  of 
his  quitting  this  country  there  can  hardly  be  a  doubt  entertained ;  it 
is  almost  impossible  to  represent  stronger  or  more  natural  grounds 
for  such  a  measure ;  and  I  do  not  think  the  court  runs  any  risk  of  en- 
countering a  fraudulent  pretension,  put  forward  to  meet  the  circum- 
stances of  the  moment,  without  anything  of  an  original  and  bona  fide 
intention  at  the  bottom  of  it. 

The  ship  was  sent  out  under  the  management  of  the  supercargo, 
and  it  is  said  that  Mr.  Hewlet  exceeded  his  commission.  The  affidavit 
does  not  go  so  far;  it  does  not  appear  from  that,  that  the  agent  had 
not  the  power  to  enter  into  such  an  engagement.  But  this,  I  think,  ap- 
pears clearly,  that  it  was  the  understanding  both  of  Mr.  Johnson,  and 
of  his  agent,  Mr.  Hewlet,  who  had  been  his  clerk,  and  to  whom  he  re- 


Ch.  8)  DOMICILE  661 

fers  for  a  confirmation  of  his  avowed  design  of  removing,  that  before 
the  completion  of  such  a  voyage  Mr.  Johnson  would  be  in  America. 
Therefore,  if  the  illegahty  of  the  vojage  must  be  supposed  to  have 
I)resented  itself  to  their  minds,  as  a  British  transaction,  owing  to  Mr. 
Johnson's  residence  in  England,  there  was  reason  enough  for  them 
to  conclude  that  Mr.  Johnson  would  be  removed;  and,  on  that  view 
of  the  matter,  although  it  is  certain  that  an  agent  would  bind  his  em- 
ployer in  such  a  case,  there  is  ground  sufficient  to  presume  that  the 
agent  acted  fairly  and  bona  fide,  and  under  the  expectation  that  Mr. 
Johnson  would  be  returned  to  America. 

The  ship  arrives  a  few  weeks  after  his  departure;  and  taking  it  to 
be  clear,  that  the  national  character  of  Mr.  Johnson  as  a  British  mer- 
chant was  founded  in  residence  only,  that  it  was  acquired  by  residence, 
and  rested  on  that  circumstance  alone ;  it  must  be  held  that  from  the 
moment  he  turns  his  back  on  the  country  where  he  has  resided,  on 
his  way  to  his  own  country,  he  was  in  the  act  of  resuming  his  original 
character,  and  is  to  be  considered  as  an  American.  The  character 
that  is  gained  by  residence  ceases  by  residence.  It  is  an  adventitious 
character  which  no  longer  adheres  to  him,  from  the  moment  that' he 
puts  himself  in  motion,  bona  fide,  to  quit  the  country,  sine  animo  re- 
vertendi.  The  courts  that  have  to  apply  this  principle,  have  applied 
it  both  ways,  unfavorably  in  some  cases,  and  favorably  in  others.  This 
man  had  actually  quitted  the  country.  Stronger  was  the  case  of  Mr. 
Curtissos  (The  Snelle  Zeylder,  Lds.  Ap.  25,  1783) ;  he  was  a  British 
bom-subject,  that  had  been  resident  in  Surinam  and  St.  Eustatius, 
and  had  left  those  settlements  with  an  intention  of  returning  to  this 
country ;  but  he  had  got  no  farther  than  Holland,  the  mother  country 
of  those  settlements,  when  the  war  broke  out.  It  was  determined  by 
the  Lords  of  Appeal,  that  he  was  in  itinere,  tha't  he  had  put  himself 
in  motion,  and  was  in  pursuit  of  his  native  British  character;  and  as 
such,  he  was  held  to  be  entitled  to  the  restitution  of  his  property.  So 
here,  this  gentleman  was  in  actual  pursuit  of  his  American  character ; 
and,  I  think,  there  can  be  no  doubt  that  his  native  character  was 
strongly  and  substantially  revived,  not  occasionally,  nor  colorably,  for 
the  mere  purposes  of  the  -present  claim ;  and  therefore  I  shall  restore 
this  ship.^ 

3  An  earlier  and  a  leading  case  on  this  subject  is  The  Harmony,  2  C.  Rob. 
322  (1800). 

See,  also,  the  Laurent  Case,  before  the  American  and  British  Claims  Com- 
mission under  Convention  of  February  8,  1853,  Report  of  Decisions,  120,  main- 
taining, as  stated  in  the  headnote,  that: 

"Wliero  claimants,  who  were  originally  British  subjects,  had  become  domi- 
ciled in  Mexico  and  continued  to  reside  there,  engaged  in  trade,  during  war 
between  Mexico  and  the  United  States,  held,  that  they  had  so  far  changed 
their  national  character  that  they  could  not  be  considered  'British  subjects' 
within  the  meaning  of  these  terms  as  used  in  the  convention  for  the  settle- 
ment of  claims  of  British  subjects  upon  the  government  of  the  United  States." 

This  case  is  especially  valuable  for  the  argimient  of  counsel,  who  collected 
the  precedents,  and  for  the  opinions  of  the  commissioners,  who  applied  them 
to  the  facts  of  the  case. 


662  BIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

THE  PORTLAND. 

(High  Court  of  Admiralty,  1800.    3  C.  Rob.  41.) 

This  was  a  question,  depending  in  various  claims,  on  the  national 
character  of  Mr,  Ostermeyer. 

Sir  W.  Scott.*  This  case  is  one  of  ten,  in  which  claims  have  been 
given  for  Mr.  Jacob  Ostermeyer,  described  as  domiciliated  at  Blanka- 
nese,  and  as  having  a  house  of  trade  at  Altona.  *  *  *  There  re- 
main nine  other,  four  of  which.  The  Portland,^  The  Spazhamheid, 
Jonge  Ferdinand,  and  The  Hoop,  do  not  appear  to  have  any  con- 
nection with  Ostend.  With  respect  to  The  Portland,  I  find  it  deter- 
mined by  my  predecessor,  in  one  instance,  that  the  claim  of  Mr.  Marsh, 
a  British  subject,  should  be  restored;  by  which  the  court  must  virtu- 
ally have  declared,  that  the  destination  was  not  to  Ostend,  but  in  truth 
to  Hamburg;  because  if  the  destination  had  been  to  Ostend,  the  prop- 
erty of  a  British  merchant  embarked  in  that  trade  must  have  been 
condemned.  It  appeared  that  the  ship  was  to  touch  at  Ostend,  to  de- 
liver some  prisoners  there  on  the  part  of  this  government ;  but  there 
is  no  reason  to  doubt  of  the  ulterior  destination  to  Hamburg;  and  there 
can  be  no  question  of  the  propriety  of  the  former  judgment;  on  which 
indeed  if  I  could  entertain  a  private  doubt,  I  should  not  take  upon 
myself  to  shake  the  declaration  of  my  predecessor. 

The  Spazamheid*  was  bound  from  London  to  Embden;  and  al- 
though it  does  appear  that  some  of  the  goods  were  to  find  their  way 
to  Ostend,  it  is  sworn  "that  the  destination  was  to  Embden,"  and  there 
is  no  reason  to  think  that  there  was  in  this  destination  any  view 
towards  Ostend.  The  Jonge  Ferdinand'  was  going  from  Spain  to 
Hamburg,  and  the  Hoop  '  from  Amsterdam  to  Bourdeaux.  In  these 
no  ground  of  suspicion  whatever  arises,  pointing  to  Ostend ;  I  shall 
therefore  consider  these  four  cases  as  having  nothing  to  do  with  that 
place. 

The  character  in  which  Mr.  Ostermeyer  claims,  as  arising  out  of 
his  general  history,  makes  this  circumstance  of  a  destination  to  Ostend 
of  great  importance.  Mr.  Ostermeyer  says,  "that  he  had  been  domiciled 
at  Ostend,  as  a  partner  of  a  house  of  great  trade;  but  that  on  the  ir- 
ruption of  the  French  into  that  country  he  removed  himself;   that  he 

*  Parts  of  the  opinion  are  omitted. 

5  Portland,  an  American  ship  taken  December  20,  1795.  Restored.  Voyage 
from  Hamburg  to  London.  Claim  of  Mr.  Ostermeyer  for  a  considerable  part 
of  the  cargo. 

6  Taken  December,  18,  1795.  Claim  of  Mr.  Ostermeyer  for  some  parcels  of 
tobacco,  a  part  of  the  cargo. 

7  The  Jonge  Ferdinand.  Claim  of  Mr.  Ostermeyer  for  some  parts  of  the 
cargo. 

8  Hoop,  Witzes,  a  Prussian  ship  taken  January  6,  1798.  Voyage  from 
Amsterdam  to  Bourdeaux.  Claim  of  Mr.  Ostermeyer  for  some  parts  of  the 
cargo. 


Ch.  8)  DOMICILE  663 

quitted  Ostend,  and  has  since  had  no  connection  or  interference  with 
that  partnership."  On  the  other  side  it  is  contended  that  this  is  not 
a  bona  fide  renunciation,  that  his  name  still  continues  a  prominent 
name  in  the  firm  of  that  house,  and  therefore  that  he  is  liable  to  be  con- 
sidered as  a  merchant  of  Ostend.  It  is  contended,  besides,  that  if  he 
is  not  a  partner  in  that  house,  still  he  is  to  be  considered  a  trader  of 
Ostend,  as  a  sole  trader ;  that  his  connection  with  that  place  still  con- 
tinuing, he  is  to  be  considered  as  a  merchant  of  Ostend,  and  as  such 
liable  to  have  his  property  condemned.  Now,  as  to  the  circumstance 
of  his  being  engaged  in  trading  with  Ostend,  either  under  a  partners- 
ship,  or  as  a  sole  trader,  I  think  it  will  be  difficult  to  extend  the  conse- 
quences of  that  act,  whatever  they  may  be,  to  the  trade  which  he  was 
carrying  on  at  Hamburg,  and  having  no  connection  with  Ostend;  be- 
cause, call  it  what  you  please,  a  colorable  character,  as  to  the  trade 
carried  on  at  Ostend,  I  cannot  think  that  it  will  give  such  a  color  to 
his  other  commerce,  as  to  make  that  liable  for  the  frauds  of  his  Ostend 
trade. 

In  the  case  of  Mr.  Sontag  ^  it  appeared  that  he  had  emigrated  from 
Holland,  and  had  settled  at  Altona,  but  still  continued  to  carry  on  the 
trade  of  Holland.  If  he  had  been  engaged  in  other  trade  totally  dis- 
tinguishable from  the  trade  of  Holland,  I  do  not  see  how  that  would 
have  affected  him.  In  the  present  case,  as  far  as  the  person  is  con- 
cerned, there  is  a  neutral  residence;  as  far  as  the  commerce  is  con- 
cerned, the  nature  of  the  transaction,  and  the  destination,  are  perfectly 
neutral,  unless  it  can  be  said  that  trading  in  an  enemy's  commerce, 
makes  the  man,  as  to  all  his  concerns,  an  enemy,  or  that  being  engaged 
in  a  house  of  trade  in  the  enemy's  country  would  give  a  general  charac- 
ter to  all  his  transactions.  I  do  not  see  how  the  consequences  of  Mr. 
Ostermeyer's  trading  to  Ostend  can  affect  his  commerce  in  other  parts 
of  the  world.  I  know  of  no  case,  nor  of  any  principle,  that  could  sup- 
port such  a  position  as  this,  that  a  man,  having  a  house  of  trade  in  the 
enemy's  country,  as  well  as  in  a  neutral  country,  should  be  considered 
in  his  whole  concerns  as  an  enemy's  merchant,  as  well  in  those  which 
respected  solely  his  neutral  house,  as  in  those  which  belonged  to  his 
belligerent  domicil.  The  only  light  in  which  it  could  affect  him  would 
be,  as  furnishing  a  suggestion  that  the  partners  in  the  house  at  Ostend 
were  also  partners  at  Altona.  But  on  this  part  of  the  case,  I  think  the 
evidence  of  the  merchants  at  Hamburg,  certifying  that  they  have  in- 
spected his  books  at  Altona,  and  find  no  trace  of  a  connection  with 
Ostend,  is  good  evidence;  because,  although  it  is  but  slight  proof  to 
destroy  entirely  a  suspicion  of  a  connection  with  Ostend,  yet  it  is  of 
great  importance  as  to  the  trade  carried  on  at  Altona ;  they  swear  "that 
there  is  nothing  appearing  in  his  books  which  points  in  any  way  to 
a  connection  with  any  partnership  at  Ostend." 

It  comes  then  to  this  question.  Whether  Mr.  Ostermeyer  having  con- 

«  Indiana,  and  other  cases,  Lords,  February  7,  1800. 


664  RIGHTS  AND   DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

nection  at  Ostend,  either  as  a  partner  in  a  house  of  trade,  or  as  a  sole 
trader,  would  be  liable  to  be  considered  as  an  Ostend  merchant,  in  re- 
spect to  a  transaction  originating  with  another  house,  and  having  no 
connection  with  Ostend?  I  am  of  opinion  that  the  consequences  of  the 
transaction  must  be  limited  to  the  transaction  at  Ostend,  and  that  his 
other  trade  must  be  exonerated ;  I  think,  therefore,  with  respect  to  these 
four  ships,  without  going  into  the  particular  evidence,  that  they  are 
cases  of  restitution;  at  the  same  time  I  think  I  am  under  the  neces- 
sity of  saying,  that  the  captors  have  done  nothing  more  than  what  the 
situation  of  Mr.  Ostermeyer  compelled  them  to  do,  in  bringing  these 
cases  to  adjudication;  and  therefore  I  pronounce  them  to  be  entitled 
to  their  expenses — desiring  at  the  same  time  to  be  understood,  as  not 
laying  down  any  general  rule  from  this  precedent.  Considering  the 
circumstances  of  the  several  cases,  that  the  Portland  was  going  on  her 
primary  destination  to  Ostend,  and  that  in  the  Spazamheid  there  were 
goods  clearly  designed  for  Ostend,  I  think  it  is  but  reasonable  thn^  '■-" 
captors'  expenses  should  be  paid.     *     *     *  lo 


THE  DANOUS. 

(Lords  Commissioners  of  Appeal,  1802.    4  C.  Rob.  255,  note.) 

Mr.  ,  a  British-born  subject,  resident  in  the  English  factory 

at  Lisbon,  was  allowed  the  benefit  of  a  Portuguese  character,  so  far  as 
to  render  his  trade  with  Holland  (at  war  with  England,  but  not  with 
Portugal)  not  impeachable  as  an  illegal  trade.  Farther  proof  was  or- 
dered to  be  made  of  the  property.^* 

10  In  The  President,  5  C.  Rob.  277,  280  (1804),  Sir  William  Scott  held  that: 
"It  is  next  said,  that  the  claimant  is  entitled  to  the  benefit  of  an  intention 

of  removing  to  Philadelphia  in  a  few  months.  A  mere  intention  to  remove 
has  never  been  held  sufficient  without  some  overt  act;  being  merely  an  in- 
tention, residing  secretly  and  undistinguishably  in  the  breast  of  the  party, 
and  liable  to  be  revoked  every  hour.  The  expressions  of  the  letter,  in  which 
this  intention  is  said  to  be  found,  are,  I  observe,  very  weak  and  general,  of 
an  intention  merely  in  futuro.  Were  they  even  much  stronger  than  they  are, 
they  would  not  be  sufficient;  something  more  than  mere  verbal  declaration, 
some  solid  fact,  showing  that  the  party  is  in  the  act  of  withdrawing,  has 
always  been  held  necessary  in  such  cases.  Nothing  of  that  sort  is  averred. 
The  court  is,  therefore,  under  the  necessity  of  considering  this  gentleman  as 
a  merchant  of  the  enemy's  country,  and  of  pronouncing  the  ship,  as  his  prop- 
erty, liable  to  condemnation." 

For  the  earlier  cases  on  this  subject,  see  Amory  and  Others  v.  McGregor, 
15  Johns.  (N.  Y.)  24,  8  Am.  Dec.  205  (1818). 

In  The  Clan  Grant,  1  British  and  Ck)lonial  Prize  Gases,  272  (1915),  it  was 
held,  as  stated  in  the  headnote,  that: 

"The  property  of  an  enemy  subject  who  is  domiciled  in  any  enemy  country, 
but  has  a  house  of  trade  in  a  neutral  country,  will  be  treated  as  enemy 
property ;  and  if  the  property  belongs  to  a  partnership,  in  the  absence  of  evi- 
dence to  tbe  contrary,  it  will  be  presumed  to  be  divided  proportionately  be- 
tween the  partners,  and  the  share  attributable  to  the  partner  with  an  enemy 
domicil  will  be  condemned." 

11  Tlie  English  eases  uniformly  hold  that  residence  in  a  foreign  country 
subject  to  the  law  of  extraterritoriality  does  not  change  domicile;   that  is  to 


Ch.  8)  DOMICILE  665 

THE  LIESBET  VAN  DEN  TOLL. 

(High  Court  of  Admiralty,  1804.    5  0.  Rob.  283.) 

This  was  a  question  respecting  the  national  character  of  a  fishing 
adventure,  carried  on  by  a  native  Dutchman  who  had  become  by  domi- 
cile a  subject  of  Prussia,  and  had  purchased  the  vessel,  formerly  a 
Dutch  vessel,  in  February,  at  Embden.  It  appeared  that  he  had  since 
been  employed  in  fishing  off  the  Dutch  coast,  having  sold  his  cargoes  to 
English  ships,  and  having  once  or  twice  resorted  to  Dutch  ports,  not 
for  the  purpose  of  selling  his  cargoes,  but  merely  to  procure  bait. 

Sir  W.  Scott.  It  appears  to  me  that  this  case  is  very  favorably 
distinguished  from  that  *^  of  yesterday,  where  there  was  reason  to  be- 
lieve, from  the  evidence  of  the  mate,  that  the  master  had  delivered 
his  cargoes  in  Dutch  ports ;  although  that  circumstance  was  altogether 
suppressed  by  the  master  in  his  deposition.    That  fact,  connected  with 

say,  a  British  subject  residing  in  Shanghai,  China,  for  instance,  retains  his 
British  domicile. 

One  of  the  most  recent  cases  on  this  subject  in  which  the  authorities  are 
reviewed  is  The  Derfflinger  (No.  1)  1  British  and  Colonial  Prize  Cases,  386 
(1916),  in  which  it  is  held  that  the  private  effects  of  a  German  official  in  the 
service  of  the  Chinese  government,  shipped  aboard  a  German  vessel,  for  de- 
livery in  Germany,  were  subject  to  confiscation  as  enemy  property,  on  the 
ground,  as  stated  in  the  headnote,  that: 

"European  powers  having  the  privilege  of  exterritorial  jurisdiction  in  China, 
a  German  subject  resident  in  Shanghai  does  not  acquire  a  civil  domicile  in 
China  for  war  purposes,  as  he  remains  subject  to  the  jurisdiction  of  his 
own  state." 

In  so  deciding,  the  Egyptian  Prize  Court  followed  In  re  Tootal's  Trusts,  L. 
R.  2.3  Ch.  D.  532  (1882). 

The  whole  subject  was  re-examined  by  the  House  of  Lords  in  Casdagli  v. 
Casdngli,  [1919]  A.  C.  145  (1918),  in  which  that  august  tribunal  held  that 
there  was  no  rule  of  law  which  prevented  a  British  subject,  residing  in  Egypt 
and  registered  in  the  British  consulate  as  a  British  subject,  from  acquiring  an 
Egyptian  domicile,  although  he  enjoys  certain  privileges  and  immunities  by 
i-.nison  of  the  extraterritorial  jurisdiction  which  Great  Britain  exercises  in 
Japan. 

In  the  case  of  The  Will  of  Young  John  Allen,  1  American  Journal  of  Inter- 
national Law.  1029,  1039  (1907),  Wilfley,  J.,  speaking  for  the  United  States 
Court  for  China,  held: 

"First. — That  there  is  nothing  in  the  theory  or  practical  operation  of  the 
law  of  extraterritoriality  inconsistent  with  or  repugnant  to  the  application  of 
the  American  law  of  domicile  to  American  citizens  residing  in  countries  with 
which  the  United  States  has  treaties  of  extraterritoriality. 

"Second. — That  Dr.  Young  J.  Allen,  having  lived  in  China  for  a  period  of 
forty-seven  years  and  having  expressed  his  intention  to  live  here  permanent- 
ly, thereby  acquired  an  extraterritorial  domicile  in  China;  consequently  this 
court  in  the  administration  of  his  estate  will  be  guided  by  the  law  which 
Congress  has  extended  to  Americans  in  China,  which  is  the  common  law." 

This  view  was  later  followed  by  the  Supreme  Court  of  Maine,  in  Mather  v. 
Cunningham,  105  Me.  326,  74  Atl.  809,  29  L.  R.  A.  (N.  S.)  761,  18  Ann.  Cas.  692 
(1909),  the  court  holding  that  "Henry  J.  Cunningham,  the  decedent,  at  the 
time  of  his  decease,  had  abandoned  his  domicile  of  origin  in  Waldo  county, 
and  had  acquired  a  domicile  of  choice  in  Shanghai." 

Both  of  these  cases  are  cited  and  quoted  witli  approval  in  Casdagli  v. 
Casdagli,  supra,  167-168. 

12  Jouge  Jeroem,  Krom,  condemned  October  9,  1804. 


666  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

the  original  character  of  the  vessel,  and  of  the  master,  seemed  to  the 
court  to  amount  to  a  case  of  Dutch  occupation,  and  the  vessel  was  on 
that  ground  condemned.  Here  the  occupation  is  certainly  much  slighter. 
It  is  not  denied  that  a  native  Prussian  might  have  engaged  in  such  an 
adventure,  without  drawing  on  himself  the  consequences  of  a  Dutch 
character.  He  might  unquestionably  have  resorted  to  the  Dutch  coast 
for  the  purpose  of  fishing;  as  it  is,  indeed,  not  unusual  for  fishermen 
to  frequent  very  distant  shores.  Then  the  only  question  will  be,  wheth- 
er this  man,  being  a  native  Dutchman,  and  a  Prussian  subject  by  domi- 
cile only,  but  of  seven  years'  continuance,  and  not  having  recently  taken 
it  up  for  any  purposes  connected  with  the  present  war,  would  be  dif- 
ferently affected  by  this  employment.  I  am  disposed  to  hold  that  he 
would  not.  It  was  open  to  him  to  go  to  the  coasts  of  Holland  to  carry 
on  his  fishery  in  his  Prussian  character ;  he  was  also  at  liberty  to  Sell 
his  cargoes  at  sea,  as  he  appears  to  have  done,  in  every  instance,  to 
British  vessels,  who  have  lately  been  very  numerous  on  the  coasts  of 
Holland,  and  might  be  expected  to  furnish  a  good  market  for  commodi- 
ties of  that  kind.  The  only  circumstance  that  can  raise  a  doubt  is, 
that  he  appears  to  have  resorted  to  the  Texel  for  bait.  It  is  said  that 
this,  though  in  itself  a  slight  circumstance,  affords  no  immaterial  in- 
dication of  the  Dutch  character,  and  of  the  Dutch  origin  of  this  em- 
ployment. But  I  am  not  prepared  to  say  that  this  circumstance  alone, 
unconnected  with  any  habits  of  delivering  his  cargoes  in  the  Dutch 
ports,  will  be  sufficient  to  affect  him  with  a  Dutch  character.  To  hold 
otherwise,  would,  I  think,  be  to  press  the  doctrine  of  occupation  rather 
too  rigidly,  against  a  class  of  cases  which  has  usually  been  very  fa- 
vorably considered,  and  treated  with  peculiar  lenity  and  forbearance. 
Restitution. 


THE  HYPATIA. 
(Probate,  Divorce  and  Admiralty  Division,  1916.     L.  R.  [19171  Prob.  Div.  36.) 

Suit  for  condemnation  of  cargo  as  prize. 

The  facts,  which  are  fully  set  out  in  the  judgment,  shortly  were 
that,  under  a  bill  of  lading  dated  July  10,  1914,  100  bales  of  wool  were 
shipped  at  Buenos  Aires  on  the  British  steamship  Hypatia  for  car- 
riage to  Hamburg.  War  having  broken  out  with  Germany  while  the 
Hypatia  was  in  the  course  of  her  voyage,  she  was  diverted  to  Liver- 
pool, where  the  goods  were  seized  as  prize.  They  were  claimed  by 
the  shippers,  H.  Fuhrmann  &  Co.,  on  the  ground  that  the  property 
had  not  passed  to  the  buyers,  and  that,  as  the  goods  of  a  firm  with 
a  commercial  domicil  in  a  neutral  country,  they  had  a  neutral  charac- 
ter. All  the  partners  of  the  firm  of  H.  Fuhrmann  &  Co.  were  Ger- 
mans. None  of  them  resided  in  Buenos  Aires,  the  business  being  car- 
ried on  there  entirely  by  managers  and  clerks.  The  only  active  part- 
ner left  Buenos  Aires  in  1910  and  took  up  his  residence  in  Antwerp, 


Ch.  8)  DOMICILE  667 

where  the  two  other  partners  already  resided.  Shortly  after  the  out- 
break of  war  all  three  were  expelled  by  the  Belgian  authorities  as 
enemy   subjects.     *     *     * 

1916,  Dec.  21.  The;  President  (Sir  Samuel  Evans)  read  the  fol- 
lowing judgment :  ^^    *     *     * 

The  three  partners  in  the  claimants'  firm  being  Germans,  the  ques- 
tion arises  whether  they  in  fact  or  in  law  acquired  a  commercial  dom- 
icil  in  the  Argentine  Republic. 

It  is  well  known  that  according  to  the  English  and  American  views 
of  international  law  (although  not  according  to  the  French  or  German 
or  general  European  view)  a  subject  of  a  belligerent  state  can  have  a 
commercial  domicil  in  a  neutral  state,  which  would  protect  his  prop- 
erty from  capture  at  sea.^*  But  I  think  that  residence  in  the  neutral 
state  is  an  essential  condition  of  such  a  domicil, 

I  know  of  no  case  where,  merely  by  reason  of  carrying  on  business 
through  agents  or  clerks  in  a  neutral  state,  subjects  of  an  enemy  can 
acquire  a  commercial  domicil  without  residence  in  that  state. 

In  his  celebrated  judgment  in  The  Indian  Chief,  3  C.  Rob.  12,  18, 
1  Eng.  P.  C.  251,  252,  Lord  Stowell  said  of  Mr.  Johnson,  the  Ameri- 
can consul:  "He  came  to  this  country  in  1783,  and  engaged  in  trade, 
and  has  resided  in  this  country  till  1797;  during  that  time  he  was  un- 
doubtedly to  be  considered  as  an  English  trader;  for  no  position  is 
more  established  than  this,  that  if  a  person  goes  into  another  country, 
and  engages  in  trade,  and  resides  there,  he  is,  by  the  law  of  nations,  to 
be  considered  as  a  merchant  of  that  country." 

In  the  case  of  The  Venus  (1814)  8  Cranch,  253,  3  L.  Ed.  553,  where 
the  Supreme  Court  of  the  United  States  discussed  questions  of  com- 
mercial domicil  so  fully,  it  will  be  seen  that  throughout  the  judg- 
ments residence  was  regarded  as  an  essential  ingredient.  On  this 
question  Chancellor  Kent  says:  "If  [a  person]  resides  in  a  belliger- 
ent country,  his  property  is  liable  to  capture  as  enemy's  property,  and 
if  he  resides  in  a  neutral  country,  he  enjoys  all  the  privileges,  and  is 
subject  to  all  tlie  inconveniences,  of  the  neutral  trade."  Kent's  Com- 
mentaries (14th  Ed.)  vol.  1,  p.  103. 

Mr.  Dicey  also  in  his  Conflict  of  Laws  deals  with  the  matter  thus : 
"A  commercial  domicil  *  *  *  jg  such  a  residence  in  a  country 
for  the  purpose  of  trading  there  as  makes  the  person's  trade  or  busi- 
ness contribute  to  or  form  part  of  the  resources  of  such  country,  and 
renders  it,  therefore,  reasonable  that  his  hostile,  friendly,  or  neutral 
character  should  be  determined  by  reference  to  the  character  of  such 
country.  When  a  person's  civil  domicil  is  In  question,  the  matter  to 
be  determined  is  whether  he  has  or  has  not  so  settled  in  a  given  coun- 
try as  to  have  made  it  his  home.    When  a  person's  commercial  domicil 

13  Part  of  the  opinion  is  omitted. 

14  The  leading  French  case  on  the  subject  is  Le  Hardy,  decided  in  1801. 
For  the  text  of  this  important  decision,  see,  post,  p.  GSO. 


668  RIGHTS   AND   DUTIES   OP  NATIONS   IN   TIME   OF   WAR         (Part  3 

is  in  question,  the  matter  to  be  determined  is  whether  he  is  or  is  not 
residing  in  a  given  country  with  the  intention  of  continuing  to  trade 
there."    Dicey's  Conflict  of  Laws  (2d  Ed.,  1908)  p.  742. 

It  is- sometimes  said  that  Lord  Stowell  in  The  Jonge  Klassina  (1804) 
5  C:  Rob.  297,  302,  1  Eng.  P.  C.  485,  488),  expressed  the  opinion  that 
a  man  may  acquire  a  commercial  domicil  in  more  countries  than  one. 
The  passage  referred  to  is  as  follows :  "A  man  may  have  mercantile 
concerns  in  two  countries,  and  if  he  acts  as  a  merchant  of  both,  he 
must  be  liable  to  be  considered  as  a  subject  of  both,  with  regard  to 
the  transactions  originating  respectively  in  those  countries.  That  he 
has  no  fixed  compting-house  in  the  enemy's  country  will  not  be  de- 
cisive. How  much  of  the  great  mercantile  concerns  of  this  kingdom 
is  carried  on  in  coffee-houses?  A  very  considerable  portion  of  the 
great  insurance  business  is  so  conducted.  It  is  indeed  a  vain  idea, 
that  a  compting-hOuse  or  fixed  establishment  is  necessary  to  make  a 
man  a  merchant  of  any  place.  If  he  is  there  himself,  and  acts  as  a 
merchant  of  that  place,  it  is  suflficient ;  and  the  mere  want  of  a  fixed 
compting-house  there,  will  make  no  breach  in  the  mercantile  character 
which  may  well  exist  without  it." 

That  case  was  one  involving  the  question  of  carrying  on  a  trade 
outside  and  beyond  that  authorized  by  a  particular  license  to  trade. 
It  is  no  decision  that  the  existence  of  a  fixed  compting-house  or  house 
of  trade  in  a  neutral  country  without  residence  by  a  trader  or  partner 
in  that  country  will  endow  him  with  a  neutral  commercial  domicil 
which  will  give  him,  though  an  enemy  subject,  protection  for  his  goods 
from  maritime  seizure.  Indeed  the  passage  itself  seems  to  assume 
the  presence  of  the  trader  in  the  neutral  country. 

I  note  that  in  dealing  with  this  case  the  late  Mr.  Westlake  said: 
"Without  having  or  being  a  partner  in  a  house  of  business  established 
in  a  given  country,  a  man  may  in  that  country  make  contracts  or  do 
other  acts  of  a  trader,  not  linked  together  otherwise  than  through  his 
person.  Then  we  have  the  state  of  facts  with  regard  to  which  Lord 
Stowell  said  that  *a  rhan  may  have  mercantile  concerns  in  two  coun- 
tries, and  if  he  acts  as  a  merchant  of  both  he  must  be  liable  to  be  con- 
sidered as  a  subject  of  both,  with  regard  to  the  transactions  originat- 
ing respectively  in  those  countries.' "  Westlake's  International  Law, 
part  II,  p.  164. 

It  must  not  be  taken  that  I  am  expressing  any  opinion  as  to  wheth- 
er a  man  can  have  a  commercial  domicil  in  two  neutral  countries 
which  would  entitle  him  to  be  regarded  as  a  neutral  trader  in  both. 
I  can  conceive  that  it  is  possible  that  he  might  establish  a  sufficient 
residence  in  both  for  the  purpose.  Nor  am  I  considering  the  case  of 
a  corporation  or  incorporated  company  which  might  theoretically  have 
a  "residence"  in  the  country  where  it  was  registered.  DeaHng  with 
the  case  now  before  the  court,  in  my  view  a  commercial  domicil  such 
as  is  here  claimed  cannot  be  established  without  proof  of  a  sufficient 


Ch.  8)  DOMICILE  609 

residence  of  the  partners  or  some  of  them  in  the  counti-y  where  the 
business  is  carried  on,  or  where  the  house  of  trade  is  situate.  *  *  * 
I  find  that  the  wool  at  the  time  of  capture  was  enemy  property  on 
a  British  ship;  and  accordingly  I  adjudge  its  condemnation  as  prize 
to  the  crown  as  droits  of  admiralty.     *     *     *  15 


THE  HAMBORN. 

(Privy  Council,  1919.     L.  E.  [1919]  App.  Cas.  993.) 

The  judgment  of  their  Lordships  was  delivered  by 
Lord  Sumner.^®  The  late  President  condemned  the  steamship 
Hamborn  upon  the  ground  that  she  was  "a  German  vessel  belonging  to 
German  owners."  Her  owners,  the  appellants,  contend  that  they  are 
a  hmited  liability  company,  incorporated  in  Holland  according  to  Dutch 
law,  and  ihat  their  ship  was  on  the  Dutch  register  of  shipping  and 
that  she  flew,  as  well  she  might,  the  flag  of  the  kingdom  of  the  Nether- 
lands. Literally  all  this  is  true.  The  President  spoke  of  her  as  being 
"nominally"  owned  by  a  Dutch  company  but  held  that  she  "must  be 
regarded  as  belonging  to  German  subjects"  and,  quoting  from  The  For- 
tuna,  1  Dods.  81,  87,  that  "it  is  no  inconsiderable  part  of  the  ordinary 
occupation  of  a  prize  court  to  pull  off  this  mask,,  and  exhibit  the  vessel 
so  disguised  in  her  true  character,"  he  laid  it  down  that  "the  court 
is  not' bound  to  determine  the  neutral  or  enemy  character  of  a  vessel 
according  to  the  flag  she  is  flying,  or  may  be  entitled  to  fly,  at  the  time 
of  capture."  In  fact,  however,  in  this  case  there  is  no  mask  to  be 
pulled  off,  if  by  that  is  meant  some  deception  to  be  exposed.  The  ap- 
pellant company  really  is  a  Dutch  company;  the  ship  was  bought  be- 
fore the  war  and  really  was  the  company's  property.  The  company 
is  not  shown  to  be  a  nominee  holding  in  trust  for  other  persons.  There 
seems  to  have  been  no  disguise  or  concealment  or  attempt  to  delude 
either  the  captors  or  thf  court,  and,  according  to  the  municipal  law 

15  "It  is  often  a  matter  of  difficulty  for  prize  courts  to  determine  to  whom 
goods  seized  as  maritime  prize  actually  belong,  since  there  is  no  distinct  and 
generally  accepted  fundamental  principle  as  to  the  test  to  be  applied.  There 
is,  in  fact,  an  opposition  between  the  British  and  American  criterion  of  domi- 
cile, and  the  French  and  Italian  criterion  of  nationality.  *  *  *  Under  the 
circumstances  we  may,  therefore,  expect  a  diversity  of  practice  between  the 
French  and  Italian  prize  decisions  which  strictly  adhere  to  nationality  (The 
Martha-Bockhahn,  1919,  Journal  Officiel,  March  2,  1919,  p.  2348 ;  The  Moravia, 
1916.  Gazetta  Ufficiale,  April  26,  1916,  No.  98),  and  the  British  decisions  which 
consider  the  domicile  of  the  owner  as  the  determining  factor :  'It  appears 
reasonably  certain  that  the  question  whether  a  particular  individual  ought 
to  be  regarded  as  an  enemy  or  otherwise  depends,  prima  facie,  on  his  domi- 
cile, and  domicile  is,  according  to  international  law,  a  matter  of  inference 
from  residence.'  The  Privy  Council  in  The  Anglo-Mexican,  1917,  34  Times 
Law  Reports,  p.  149."  C.  J.  Colomhos,  "Cargoes  in  the  Prize  Courts  of 
Great  Britain,  France,  Italy  and  Germany,"  The  Journal  of  Comparative  Leg- 
islation and  International  Law,  3d  series,  vol.  '6,  part  4,  pp.  286,  289  (Octo- 
ber, 1921). 

18  The  statement  of  facts  is  omitted. 


670  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF  WAR         (Part  3 

applicable,  namely  that  of  Holland,  the  appellants  are  a  Dutch  cor- 
poration, and  the  ship  is  theirs  and  enjoys  the  rights  and  is  subject  to 
the  obligations  which  attach  to  a  Dutch  ship.  Evidently  there  is  some 
inaccuracy,  no  doubt  inadvertent,  in  the  language  employed  by  the 
President  and  on  this  the  appellants'  argument  is  rested. 

The  facts  are  these.  The  appellant  company,  the  Naamlooze  Ven- 
nootschap  Maatschappij  Stoomschip  Hamborn  (or  the  Hamborn  Steam- 
ship Company),  is'  a  single-ship  company  and  the  whole  of  its  shares 
belong  in  equal  moieties  to  two  other  Dutch  companies,  the  Naamlooze 
Vennootschap  Handels  en  Transport  Maatschappij  Vulcaan  of  Rotter- 
dam (or  the  Transport  Company)  and  the  Vulcaan  Kohlen  Maat- 
schappij, also  of  Rotterdam  (or  the  Coal  Company).  As  to  the  Trans- 
port Company,  all  the  shares  but  two,  which  belong  to  the  German 
firm  of  Thyssen  &  Co.  of  Mulheim  on  the  Ruhr,  are  the  property  of 
a  German  company,  the  Gewerkschaft  Deutsche  Kaiser  of  Hamborn. 
The  shares  of  the  Coal  Company  are  held  exclusively  by  three  com- 
panies, the  Vulcaan  Transport  Company  above-mentioned  and  two 
German  companies,  the  Gewerkschaft  Rhein  and  the  Gewerkschaft 
Ivohberg,  both  of  Hamborn.  All  the  directors  and  shareholders  of  the 
last  two  companies  are  Germans,  resident  in  Germany.  So  are  the  di- 
rectors of  .the  Vulcaan  Transport  Company,  and  they  have  under  their 
supervision  and  control  as  managers  two  Germans,  who  have  resided 
in  Holland  since  the  formation  of  the  appellant  company  in  1913  and 
attend  to  the  practical  business  details  of  the  Vulcaan  Transport  Com- 
pany, which  in  its  turn  holds  the  office  of  manager  to  the  Hamborn 
Steamship  Company.  It  does  not  appear  that  they  have  any  business 
of  their  own,  and  before  the  appellant  company  was  formed  they  were 
clerks  employed  by  the  Deutsche  Kaiser  Company,  the  one  till  1907,  the 
other  till  1910. 

Sufficient  details  are  given  of  the  ship's  regular  trade  to  make  it 
quite  clear  what  she  was  bought  for.  Her  trade  was,  with  unimpor- 
tant exceptions,  to  load  ore  at  Spanish  ore  ports  for  Rotterdam,  going 
out  with  coal  from  South  Wales  to  French  pSrts  to  save  a  ballast  voy- 
age. When  the  war  broke  out,  she  was  sent  across  the  Atlantic  and  was 
trading  on  time  charter  there  when  she  was  captured.  The  Transport 
Company,  which  owns  half  the  capital  of  the  appellant  company,  was 
incorporated  to  own  and  manage  lighters  and  tugs  for  the  carriage  of 
cargo  up  the  Rhine  and  its  tributaries,  on  behalf  among  others  of  the 
Deutsche  Kaiser  Company,  for  whom  it  carries  ore.  Thyssen  &  Com- 
pany and  the  Deutsche  Kaiser  Company  own  ironworks  in  Germany, 
and  there  was  not  a  single  person  interested  in  any  of  these  companies 
at  the  time  of  her  capture  who  was  not  an  enemy  subject.  Their  Lord- 
ships entertain  no  doubt  that  the  Hamborn  was  bought  and  employed 
as  a  useful  tender  to  the  German  iron  industry  on  the  Ruhr,  that  her 
other  trading  was  ancillary,  and  that  her  Dutch  flag,  Dutch  owner- 
ship and  local  management  at  Rotterdam  were  adopted  merely  for  the 
convenience  of  her   German  import  trade.     For  some  purposes  no 


Ch.  8)  DOMICILE  671 

doubt  she  belonged  to  and  was  counted  as  part  of  the  mercantile  marine 
of  the  kingdom  of  the  Netherlands,  but  in  substance  she  and  her  trade 
were  a  support  to  and  a  part  of  the  commerce  and  the  shipping  of 
the  German  Empire.  The  legal  effect  of  all  this,  particularly  on  her 
liability  to  capture,  is  another  matter. 

The  true  question  is  one,  in  the  President's  phrase,  of  determining 
the  neutral  or  enemy  character  of  the  Hamborn.  Unless  either  her 
Dutch  flag  or  the  country  of  incorporation  of  the  owning  company  or 
the  place  of  residence  of  her  subordinate  managers  or  some  or  all  of 
these  matters  be  conclusive,  she  bore  a  character  which  justified  her 
condemnation,  for  she  formed  part  of  that  enemy  commerce  which  a 
belligerent  is  entitled  to  disable  and  restrain. 

It  may  be  as  well  to  put  on  one  side  certain  aspects  of  the  effect 
of  using  a  national  flag,  which  are  not  now  relevant  and  are  really  only 
false  analogies.  If  a  ship  for  her  own  purposes  has  assumed  and  used 
a  national  flag  to  which  she  is  not  really  entitled,  she  may  in  some 
circumstances  be  held  bound  by  the  nationality  which  she  has  thus  as- 
sumed without  warrant.  If  a  ship  lawfully  flies  a  national  flag,  she 
may  in  some  cases  be  said,  by  a  figure  of  speech,  to  derive  from  her 
flag  the  system  of  municipal  law  by  which  her  .contracts  or  her  civil 
liabilities  are  governed.  In  the  first  case,  she  cannot  deny  as  against 
captors  the  national  character,  which  she  has  irregularly  taken ;  in  the 
second,  she  derives  from  the  national  character,  which  is  actually  hers 
and  is  indicated  by  her  flag,  the  system  of  legal  rights  and  liabilities 
applicable  to  her.  Neither  case  touches  the  position,  where  in  a  ques- 
tion with  captors  it  becomes  necessary  to  consider  whether  the  ship, 
though  in  contemplation  of  technical  municipal  law  a  neutral  ship,  of 
neutral  registry,  and  entitled  to  the  benefits  of  a  neutral  flag,  is,  in 
the  view  of  the  law  of  nations,  a  ship  of  enemy  character  and  liable  to 
be  treated  in  accordance  with  that  character.  If  the  case  turned  on 
her  user  de  facto  at  the  time  of  capture  it  would  be  simple :  so  it 
would  be,  if  her  owners  were  natural  persons  of  neutral  nationality 
de  jure,  neither  adhering  to  the  enemy  nor  allowing  their  chattel  to  be 
used  in  enemy  service. 

The  present  case  is  more  complex.  The  criteria  for  deciding  enemy 
character  in  the  case  of  an  artificial  person  differ  from  those  applica- 
ble to  a  natural  person,  since  in  the  nature  of  things  conduct,  which 
is  one  of  the  most  important  matters,  can  in  the  former  case  only  be 
the  conduct  of  those  who  act  for  or  in  the  name  of  the  artificial  per- 
son. It  was  decided  in  the  case  of  Daimler  Company  v.  Continental 
Tyre  and  Rubber  Company,  [1916]  2  A.  C.  307,  that,  in  the  case  of 
an  incorporated  company,  the  right  and  power  of  control  may  form 
a  true  criterion,  the  control,  that  is,  of  those  persons  who  are  the  ac- 
tive directors  of  the  company  and  whose  orders  its  officers  must  obey, 
or  the  control  of  those  persons  who  in  their  turn  are  the  masters  of 
the  directorate  and  make  or  unmake  it  by  the  use  of  the  controlling 
majority  of  votes.    The  application  of  this  test  presents  no  difliculty 


672  RIGHTS  AND   DUTIES  OP  NATIONS   IN  TIME  OP  WAR         (Part  3 

here,  for  no  living  person  and  no  sentient  mind  exercised  or  possessed 
any  control  over  the  Hamborn  Steamship  Company,  except  persons 
and  minds  of  enemy  nationality.  The  residence  of  the  two  German 
managers  in  Rotterdam,  if  not  altogether  immaterial,  at  any  rate 
cannot  affect  the  result,  since  the  question  is  not  one  of  trading  with 
enemy  subjects,  resident  or  carrying  on  business  in  a  neutral  country, 
but  is  one  of  the  character  of  an  artificial  persona,  whose  trade  is  car- 
ried on  for  it  under  the  supreme  direction  and  control  of  enemies  born. 
Their  Lordships  agree  with  a  passage  of  the  President's  judgment, 
which  sufficiently  represents  the  true  gist  of  his  reasoning  ([1918]  P. 
25) :  "The  centre  and  whole  effective  control  of  the  business  of  the 
Hamborn  Steamship  Company  was  in  Germany.  Having  regard  to 
these  facts,  the  vessel  must  be  regarded  in  this  court  as  belonging  to 
German  subjects,"  in  a  claim  by  captors  for  condemnation. 

One  small  point  remains.  By  article  57  of  the  Declaration  of  Lon- 
don, varying  the  rule  of  international  law,  the  neutral  or  enemy  char- 
acter of  a  ship  is  simply  determined  by  the  flag  which  she  is  entitled 
to  fly.  Down  to  October  20,  1915,  the  crown,  by  adopting  the  Decla- 
ration of  London,  had  waived  its  right  to  rely  on  other  criteria.  On 
that  day  was  published  an  Order  in  Council,  by  which  that  waiver  was 
withdrawn.  The  ship  was  captured  on  October  27.  It  is  said  that  the 
appellant  company  was  unaware  of  this  order,  but  its  ignorance  can- 
not have  the  effect  of  compelHng  the  crown  to  continue  to  waive  rights 
which  in  truth  were  in  full  effect,  nor,  if  knowledge  of  this  kind  could 
matter,  would  it  be  the  knowledge  of  the  company,  which  merely  owned 
the  ship,  but  that  of  the  time  charterers,  who  sent  her  to  sea,  as  to 
whom  nothing  is  proved. 

Their  Lordships  will  humbly  advise  His  Majesty  that  this  appeal 
should  be  dismissed  with  costs. 


THE  VENUS. 
(Supreme  Court  of  the  United  States,  1814.    8  Cranch,  253,  3  L.  Ed.  553.) 

Appeal  from  the  sentence  of  the  Circuit  Court  for  the  District  of 
Massachusetts. 

The  following  were  the  facts  of  the  case,  as  stated  by  Washington, 
J.,  in  delivering  the  opinion  of  the  court : 

This  is  the  case  of  a  vessel  which  sailed  from  Great  Britain,  with 
a  cargo  belonging  to  the  respective  claimants,  as  was  contended,  be- 
fore the  declaration  of  war  by  the  United  States  against  Great  Brit- 
ain was  or  could  have  been  known  by  the  shippers.  She  sailed  from 
Liverpool  on  the  4th  of  July,  1812,  under  a  British  license,'  for  the 
port  of  New  York,  and  was  captured  on  the  6th  of  August,  1812,  by 
the  American  privateer  Dolphin,  and  sent  into  the  district  of  Massa- 
chusetts, where  the  vessel  and  cargo  were  libelled  in  the  District 
Court. 


Ch.  8)  DOMICILE  673 

The  ship,  100  casks  of  white  lead,  150  crates  of  earthenware,  35 
cases  and  3  casks  of  copper,  9  pieces  of  cotton  bagging,  and  a.  quan- 
tity of  coal,  were  claimed  by  Lenox  and  Maitland.  198  packages  of 
merchandize  and  25  pieces  of  cotton  bagging  were  claimed  by  Jona- 
than Amory,  as  the  joint  property  of  James  Lenox,  William  Maitland 
and  Alexander  McGregor ;  not  distinguishing  the  proportions  of 
each:  but  the  25  pieces  of  cotton  bagging  were  afterwards  claimed 
for  McGregor  as  his  sole  property,  and  also  5  trunks  of  merchandize. 
21  trunks  of  merchandize  were  claimed  by  James  Magee,  of  New 
York,  as  the  joint  property  of  himself  and  John  S.  Jones,  residing  in 
Great  Britain. 

The  District  Court,  on  the  preparatory  evidence,  decreed  restitu- 
tion to  Magee  and  Jones,  and  also  to  Lenox  and  Maitland,  except  as 
to  the  100  casks  of  white  lead;  as  to  which,  and  as  to  the  claim  of 
McGregor,  further  proof  was  ordered.  From  this  decree,  so  far  as 
it  ordered  restitution  of  the  merchandize  to  Magee  and  Jones,  and  to 
Maitland,  and  of  the  ship  to  Lenox  and  Maitland,  the  captors  ap- 
pealed to  the  Circuit  Court,  where  the  decree  was  affirmed  pro  forma, 
and  an  appeal  was  taken  to  this  court. 

In  April,  1813,  the  cause  was  heard  on  further  proof  in  the  District 
Court;  and  in  August  the  claim  x)f  McGregor  was  rejected,  as  well 
as  that  of  Lenox  and  Maitland  to  the  white  lead.  But  at  another  day, 
on  a  further  hearing,  the  court  ordered  restitution  to  McGregor  of 
one  fourth  of  the  property  claimed  by  him,  and  condemned  the  other 
three  fourths  as  belonging  to  his  partners,  being  British  subjects.  Both 
parties  appealed,  as  did  also  Lenox  and  Maitland  in  relation  to  the 
white  lead.  A  pro  forma  decree  of  affirmance  was  made,  from  which 
an  appeal  was  taken  to  this  court. 

Maitland,  McGregor  and  Jones  were  native  British  subjects,  who 
came  to  tlie  United  States  many  years  prior  to  the  present  war,  and, 
after  the  regular  period  of  residence  were  admitted  to  the  rights  of 
naturalization.  Some  time  after  this,  but  long  prior  to  the  declaration 
of  war,  they  returned  to  Great  Britain,  settled  themselves  there,  and 
engaged  in  the  trade  of  that  country  where  they  were  found  carrying 
on  their  commercial  business  at  the  time  these  shipments  were  made, 
and  at  the  time  of  the  capture.  Maitland  is  yet  in  Great  Britain,  but 
has,  since  he  heard  of  the  capture,  expressed  his  anxiety  to  return  to 
the  United  States ;  but  has  been  prevented  from  doing  so  by  various 
causes  set  forth  in  his  affidavit.  McGregor  actually  returned  to  the 
United  States  some  time  in  May  last — Jones  is  still  in  England.  *  *  * 

Saturday,  ]March  12th,  1814.    Absent,  Livingston,  J. 

Washington,  J.,  after  stating  the  facts  of  the  case,  delivered  the 
opinion  of  the  majority  of  the  court  as  follows:  i'     *     *     * 

The  great  question  involved  in  this,  and  many  other  of  the  prize 
cases  which  have  been  argued  is,  whether  the  property  of  these  claim- 

■17  Part  of  the  opinion  is  omitted,  together  with  the  dissenting  opinion  of 
Chief  Justice  Marshall. 
Scott  Int.Law— 43 


674  RIGHTS  AND  DUTIES  OP  NATIONS  IN  TIME  OF  WAR         (Part  3 

ants  who  were  settled  in  Great  Britain,  and  engaged  in  the  commerce  of 
that  country,  shipped  before  they  had  a  knowledge  of  the  war,  but 
which  was  captured,  after  the  declaration  of  war,  by  an  American 
cruizer,  ought  to  be  condemned  as  lawful  prize.  It  is  contended  by 
the  captors,  that  as  these  claimants  had  gained  a  domicil  in  Great 
Britain,  and  continued  to  enjoy  it  up  to  the  time  when  war  was  de- 
clared, and  when  these  captures  were  made,  they  must  be  considered 
as  British  subjects,  in  reference  to  this  property,  and,  consequently, 
that  it  may  legally  be  seized  as  prize  of  war  in  like  manner  as  if  it  had 
belonged  to  real  British  subjects.  But  if  not  so,  it  is  then  insisted,  that 
these  claimants  having,  after  their  naturalization  in  the  United  States, 
returned  to  Great  Britain,  the  country  of  their  birth,  and  there  re- 
settled themselves,  they  became  reintegrated  British  subjects,  and 
ought  to  be  considered  by  this  court  in  the  same  light  as  if  they  had 
never  emigrated.  On  the  other  side  it  is  argued,  that  American  citi- 
zens settled  in  the  country  of  the  enemy,  as  these  persons  were,  at 
the  time  war  was  declared,  were  entitled  to  a  reasonable  time  to  elect, 
after  they  knew  of  the  war,  to  remain  there,  or  to  return  to  the  United 
States;  and  that,  until  such  election  was,  bona  fide,  made,  the  courts 
of  this  country  are  bound  to  consider  them  as  American  citizens,  and 
their  property  shipped  before  they  had  an  opportunity  to  make  this 
election,  as  being  protected  against  American  capture. 

There  being  no  dispute  as  to  the  facts  upon  which  the  domicil  of 
these  claimants  is  asserted,  the  questions  of  law  alone  remain  to  be 
considered.  They  are  two :  First,  By  what  means  and  to  what  ex- 
tent, a  national  character  may  be  impressed  upon  a  person,  different 
from  that  which  permanent  allegiance  gives  him?  and  secondly.  What 
are  the  legal  consequences  to  which  this  acquired  character  may  expose 
him,  in  the  event  of  a  war  taking  place  between  the  country  of  his 
residence  and  that  of  his  birth,  or  in  which  he  had  been  naturalized? 

1,  The  writers  upon  the  law  of  nations  distinguish  between  a  tem- 
porary residence  in  a  foreign  country,  for  a  special  purpose,  and  a 
residence  accompanied  with  an  intention  to  make  it  a  permanent  place 
of  abode.  The  latter  is  styled  by  Vattel,  domicil,  which  he  defines 
to  be,  "a  habitation  fixed  in  any  place,  with  an  intention  of  always 
staying  there."     *     *     * 

The  question,  whether  the  person  to  be  affected  by  the  right  of  dom- 
icil had  sufficiently  made  known  his  intention  of  fixing  himself  per- 
manently in  the  foreign  country,  must  depend  upon  all  the  circum- 
stances of  the  case.  If  he  had  made  no  express  declaration  on  the 
subject,  and  his  secret  intention  is  to  be  discovered,  his  acts  must  be 
attended  to,  as  aft'ording  the  most  satisfactory  evidence  of  his  inten- 
tion. On  this  ground  it  is,  that  the  courts  of  England  have  decided, 
that  a  person  who  removes  to  a  foreign  countiy,  settles  himself  there, 
and  engages  in  the  trade  of  the  countiy,  furnishes,  by  these  acts,  such 
evidence  of  an  intention  permanently  to  reside  there,  as  to  stamp  him 

Scott  Int.Law 


Ch.  8)  DOMICILE  675 

with  the  national  character  of  the  state  where  he  resides.  In  ques- 
tions on  this  subject,  the  chief  point  to  be  considered,  is  the  animus 
manendi;  and  courts  are  to  devise  such  reasonable  rules  of  evidence 
as  may  establish  the  fact  of  intention.  If  it  sufficiently  appear  that  the 
intention  of  removing  was  to  make  a  permanent  settlement,  or  for  an 
indefinite  time,  the  right  of  domicil  is  acquired  by  a  residence  even  of 
a  few  days.  This  is  one  of  the  rules  of  the  British  courts,  and  it  ap- 
pears to  be  perfectly  reasonable.  Another  is,  that  a  neutral  or  sub- 
ject, found  residing  in  a  foreign  country  is  presumed  to  be  there  animo 
manendi;  and  if  a  state  of  war  should  bring  his  national  character 
into  question,  it  lies  upon  him  to  explain  the  circumstances  of  his 
residence.    The  Bernon,  1    Rob.  86,  102.     *     *     * 

2.  The  next  question  is,  what  are  the  consequences  to  which  this 
acquired  domicil  may  legally  expose  the  person  entitled  to  it,  in  the 
event  of  a  war  taking  place  between  the  government  under  which  he 
resides  and  that  to  which  he  owes  a  permanent  allegiance?  A  neutral 
in  his  situation,  if  he  should  engage  in  open  hostilities  with  the  other 
belligerent,  would  be  considered  and  treated  as  an  enemy.  A  citizen 
of  the  other  belligerent  could  not  be  so  considered,  because  he  could 
not,  by  any  act  of  hostility,  render  himself,  strictly  speaking,  an  enemy, 
contrary  to  his  permanent  allegiance.  But  although  he  camiot  be  con- 
sidered an  enemy,  in  the  strict  sense  of  the  word,  yet  he  is  deemed 
such,  with  reference  to  the  seizure  of  so  much  of  his  property  con- 
cerned in  the  trade  of  the  enemy,  as  is  connected  with  his  residence. 
It  is  found  adhering  to  the  enemy.  He  is  himself  adhering  to  the 
enemy,  although  not  criminally  so,  unless  he  engages  in  acts  of  hos- 
tility against  his  native  country,  or,  probably,  refuses,  when  required 
by  his  country,  to  return.  The  same  rule,  as  to  property  engaged  in 
the  commerce  of  the  enemy,  applies  to  neutrals ;  and  for  the  same 
reason.  The  converse  of  this  rule  inevitably  applies  to  the  subject  of 
a  belligerent  state  domiciled  in  a  neutral  country;  he  is  deemed  a 
neutral  by  both  belligerents,  with  reference  to  the  trade  which  he  car- 
ries on  with  the  adverse  belligerent,  and  with  all  the  rest  of  the  world. 

But  this  national  character  which  a  man  acquires  by  residence,  may 
be  thrown  off  at  pleasure,  by  a  return  to  his  native  country,  or  even 
by  turning  his  back  on  the  country  in  which  he  has  resided,  on  his 
way  to  another.  To  use  the  language  of  Sir  W.  Scott,  it  is  an  ad- 
ventitious character  gained  by  residence,  and  which  ceases  by  non- 
residence.  It  no  longer  adheres  to  the  party  from  the  moment  he 
puts  himself  in  motion,  bona  fide,  to  quit  the  country  sine  animo 
revertendi.  3  Rob.  17,  12,  The  Indian  Chief.  The  reasonableness  of 
this  rule  can  hardly  be  disputed.  Having  once  acquired  a  national 
character  by  residence  in  a  foreign  country,  he  ought  to  be  bound  by 
all  the  consequences  of  it,  until  he  has  thrown  it  off,  either  by  an  actual 
return  to  his  native  country,  or  to  that  where  he  was  naturalized,  or 
by  commencing  his  removal,  bona  fide,  and  without  an  intention  of 
returning.    If  any  thing  short  of  actual  removal  be  admitted  to  work 


676  RIGHTS  AND  DUTIES   OP   NATIONS   IN  TIME   OF   WAR         (Part  3 

a  change  in  the  national  character  acquired  by  residence,  it  seems  per- 
fectly reasonable  that  the  evidence  of  a  bona  fide  intention  to  remove 
should  be  such  as  to  leave  no  doubt  of  its  sincerity.  Mere  declarations 
of  such  an  intention  ought  never  to  be  relied  upon,  when  contradicted, 
or  at  least  rendered  doubtful,  by  a  continuance  of  that  residence  which 
impressed  the  character.  They  may  have  been  made  to  deceive;  or, 
if  sincerely  made,  they  may  never  be  executed.  Even  the  party  him- 
self ought  not  to  be  bound  by  them,  because  he  may  afterwards  find 
reason  to  change  his  determination,  and  ought  to  be  permitted  to  do 
so.  But  when  he  accompanies  those  declarations  by  acts  which  speak 
a  language  not  to  be  mistaken,  and  can  hardly  fail  to  be  consummated 
by  actual  removal,  the  strongest  evidence  is  afforded  which  the  nature 
of  such  a  case  can  furnish.  And  is  it  not  proper  that  the  courts  of  a 
belligerent  nation  should  deny  to  any  person  the  right  to  use  a  char- 
acter so  equivocal,  as  to  put  it  in  his  power  to  claim  which  ever  may 
best  suit  his  purpose,  when  it  is  called  in  question?  If  his  property 
be  taken  trading  with  the  enemy,  shall  he  be  allowed  to  shield  it  from 
confiscation,  by  alleging  that  he  had  intended  to  remove  from  the 
country  of  the  enemy  to  his  own,  then  neutral,  and  therefore,  that,  as 
a  neutral,  the  trade  was  lawful?  If  war  exist  between  the  country 
of  his  residence  and  his  native  country,  and  his  property  be  seized  by 
the  former,  or  by  the  latter,  shall  he  be  heard  to  say  in  the  former 
case,  that  he  was  a  domiciled  subject  of  the  cotmtry  of  the  captor,  and 
in  the  latter,  that  he  was  a  native  subject  of  the  country  of  that  cap- 
tor also,  because  he  had  declared  an  intention  to  resume  his  native 
character;  and  thus  to  parry  the  belligerent  rights  of  both?  It  is  to 
guard  against  such  inconsistencies,  and  against  the  frauds  which  such 
pretensions,  if  tolerated,  would  sanction,  that  the  rule  above  men- 
tioned has  been  adopted. 

Upon  what  sound  principle  can  a  distinction  be  framed  between 
the  case  of  a  neutral,  and  the  subject  of  one  belligerent  domiciled  in 
the  country  of  the  other  at  the  breaking  out  of  the  war?  The  prop- 
erty of  each,  found  engaged  in  the  commerce  of  their  adopted  coun- 
tr\%  belonged  to  them,  before  the  war,  in  their  character  of  subjects 
of  that  country,  so  long  as  they  continued  to  retain  their  domicil ;  and 
when  a  state  of  war  takes  place  between  that  country  and  any  other, 
by  which  the  two  nations  and  all  their  subjects  become  enemies  to 
each  other,  it  follows  that  the  property,  which  was  once  the  property 
of  a  friend,  belongs  now,  in  reference  to  that  property,  to  an  enemy. 
This  doctrine  of  the  common-law  and  prize  courts  of  England  is 
founded,  like  that  mentioned  under  the  first  head,  upon  national  law ; 
and  it  is  believed  to  be  strongly  supported  by  reason  and  justice.  It 
is  laid  down  by  Grotius,  p.  563,  "that  all  the  subjects  of  the  enemy 
who  are  such  from  a  permanent  cause,  that  is  to  say,  settled  in  the 
country,  are  liable  to  the  law  of  reprisals,  whether  they  be  natives  or 
foreigners;  but  not  so  if  they  are  only  trading  or  sojourning  for  a 
little  time."    And  why,  it  may  be  confidently  asked,  should  not  the  prop- 


Ch.  8)  DOMICILE  677 

erty  of  such  subjects  be  exposed  to  the  law  of  reprisals  and  of  war, 
so  long  as  the  owner  retains  his  acquired  domicil,  or,  in  the  words  of 
Grotius,  continues  a  permanent  residence  in  the  country  of  the  enemy? 
They  were  before,  and  continue  after  the  war,  bound,  by  such  resi- 
dence, to  the  society  of  which  they  are  members,  subject  to  the  laws 
of  the  state,  and  owing  a  qualified  allegiance  thereto ;  they  are  obUged 
to  defend  it,  (with  an  exception  in  favor  of  such  a  subject,  in  relation 
to  his  native  country)  in  return  for  the  protection  it  affords  them,  and 
the  privileges  which  the  laws  bestow  upon*  them  as  subjects.  The 
property  of  such  persons,  equally  with  that  of  the  native  subjects  in 
their  totality,  is  to  be  considered  as  the  goods  of  the  nation,  in  regard 
to  other  states.  It  belongs,  in  some  sort,  to  the  state,  from  the  right 
which  she  has  over  the  goods  of  its  citizens,  which  make  a  part  of  the 
sum  total  of  its  riches,  and  augment  its  power.  Vatt.  147,  and/also  B. 
1,  c.  14,  §  182.  In  reprisals,  continues  the  same  author,  we  seize  on 
the  property  of  the  subject,  just  as  we  would  that  of  the  sovereign; 
everything  that  belongs  to  the  nation  is  subject  to  reprisals,  wherever 
it  can  be  seized,  with  the  exception  of  a  deposit  entrusted  to  the  pub- 
lic faith.    B.  2,  c.  18,  §  344. 

Now  if  a  permanent  residence  constitutes  the  person  a  subject  of 
the  country  where  he  is  settled,  so  long  as  he  continues  to 
reside  there,  and  subjects  his  property  to  the  law  of  reprisals,  as 
a  part  of  the  property  of  the  nation,  it  would  seem  difficult 
to  maintain  that  the  same  consequences  would  not  follow  in  the 
case  of  an  open  and  public  war,  whether  between  the  adopted  and  na- 
tive countries  of  persons  so  domiciled,  or  between  the  former  and  any 
other  nation.  If,  then,  nothing  but  an  actual  removal,  or  a  bona  fide 
beginning  to  remove,  can  change  a  national  character  acquired  by 
domicil,  and,  if,  at  the  time  of  the  inception  of  the  voyage,  as  well  as 
at  the  time  of  capture,  the  property  belonged  to  such  domiciled  per- 
son in  his  character  of  a  subject,  what  is  there  that  does,  or  ought  to 
exempt  it  from  capture  by  the  privateers  of  his  native  country,  if,  at 
the  time  of  capture,  he  continues  to  reside  in  the  country  of  the  ad- 
verse belligerent?  It  is  contended  that  a  native  or  naturalized  subject 
of  one  country,  who  is  surprised  in  the  country  where  he  was  domi- 
ciled by  a  declaration  of  war,  ought  to  have  time  to  make  his  election 
to  continue  there,  or  to  remove  to  the  country  to  which  he  owes  a  per- 
manent allegiance;  and  that,  until  such  election  is  made,  his  property 
ought  to  be  protected  from  capture  by  the  cruizers  of  the  latter.  This 
doctrine  is  believed  to  be  as  unfounded  in  reason  and  justice,  as  it 
clearly  is  in  law.  In  the  first  place,  it  is  founded  upon  a  presumption 
that  the  person  will  certainly  remove,  before  it  can  possibly  be  known 
whether  he  may  elect  to  do  so  or  not.  It  is  said  that  this  presump- 
tion ought  to  be  made,  because,  upon  receiving  information  of  the 
war,  it  will  be  his  duty  to  return  home.  This  position  is  denied.  It 
is  his  duty  to  commit  no  acts  of  hostility  against  his  native  country, 
and  to  return  to  her  assistance  when  required  to  do  so;   nor  will  any 


678  RIGHTS  AND   DUTIES  OF   NATIONS   IN  TIME  OF   WAR         (Part  3 

just  nation,  regarding  the  mild  principles  of  the  law  of  nations,  re- 
quire him  to  take  arms  against  his  native  country,  or  refuse  her  permis- 
sion to  him  to  withdraw  whenever  he  wishes  to  do  so,  unless  under 
peculiar  circumstances,  which,  by  such  removal  at  a  critical  period, 
might  endanger  the  public  safety.  The  conventional  law  of  nations 
is  in  conformity  with  these  principles.  It  is  not  uncommon  to  stip- 
ulate in  treaties  that  the  subjects  of  each  shall  be  allowed  to  remove 
with  their  property,  or  to  remain  unmolested.  Such  a  stipulation  does 
not  coerce  those  subjects  either  to  remove  or  to  remain.  They  are 
left  free  to  choose  for  themselves;  and  when  they  have  made  their 
election,  they  claim  the  right  of  enjoying  it  under  the  treaty.  But 
until  the  election  is  made,  their  former  character  continues  unchanged. 
Until  this  election  is  made,  if  his  property  found  upon  the  high 
seas,  engaged  in  the  commerce  of  his  adopted  country,  should  be  per- 
mitted, by  the  cruizers  of  the  other  belligerent,  to  pass  free,  under  the 
notion  that  he  may  elect  to  remove,  upon  notice  of  the  war,  and  should 
arrive  safe,  what  is  to  be  done  in  case  the  owner  of  it  should  after- 
wards elect  to  remain  where  he  is?  or,  if  captured  and  brought  im- 
mediately to  adjudication,  it  must,  upon  this  doctrine,  be  acquitted 
until  the  election  to  remain  is  made  known.  In  short,  the  point  con- 
tended for  would  apply  the  doctrine  of  relation  to  cases  where  the 
party  claiming  the  benefit  of  it  may  gain  all,  and  can  lose  nothing. 
If  he,  after  the  capture,  should  find  it  his  interest  to  remain  where 
he  is  domiciled,  his  property  embarked  before  his  election  was  made, 
is  safe;  and  if  he  finds  it  best  to  return,  it  is  safe  of  course.  It  is 
safe  whether  he  goes  or  stays.  This  doctrine,  producing  such  contra- 
dictory consequences,  is  not  only  unsupported  by  any  authority,  but 
it  would  violate  .principles  long  and  well  established  in  the  prize  courts 
of  E^ngland,  and  which  ought  not,  without  strong  reasons  which  may 
render  them  inapplicable  to  this  country,  to  be  disregarded  by  this 
court.  The  rule  there  is  that  the  character  of  property,  during  war, 
cannot  be  changed  in  transitu,  by  any  act  of  the  party,  subsequent  to 
the  capture.  The  rule  indeed  goes  farther,  as  to  the  correctness  of 
which  in  its  greatest  extension,  no  opinion  need  now  be  given;  but  it 
may  safely  be  affirmed  that  this  change  cannot  and  ought  not  to  be 
effected  by  an  election  of  the  owner  and  shipper  of  it  made  subsequent 
to  the  capture,  and,  more  especially,  after  a  knowledge  of  the  capture 
-is  obtained  by  the  owner.  Observe  the  consequences  which  would 
result  from  it.  The  capture  is  made  and  known.  The  owner  is  al- 
lowed to  deliberate  whether  it  is  his  interest  to  remain  a  subject  of 
his  adopted,  or  of  his  native  coimtry.  If  the  capture  be  made  by 
the  former,  then  he  elects  to  be  a  subject  of  that  country;  if  by  the 
latter,  then  a  subject  of  that.  Can  such  a  privileged  situation  be  tol- 
erated by  either  belligerent  ?  Can  any  system  of  law  be  correct,  which 
places  an  individual  who  adheres  to  one  belligerent,  and,  to  the  period 
of  his  election  to  remove,  contributes  to  encrease  her  wealth,  in  so 
anomalous  a  situation  as  to  be  clothed  with  the  privileges  of  a  neu- 


Ch.  8)  DOMICILE  679 

tral,  as  to  both  belligerents?  This  notion  about  a  temporary  state  of 
neutrality  impressed  upon  a  subject  of  one  of  the  belligerents,  and  the 
consequent  exemption  of  his  property  from  capture  by  either,  until  he 
has  had  notice  of  the  war  and  made  his  election,  is  altogether  a  novel 
theoiy,  and  seems,  from  the  course  of  the  argument,  to  owe  its  origin 
to  a  supposed  hardship  to  which  the  contrary  doctrine  exposes  him. 
But  if  the  reasoning  employed  on  this  subject  be  correct,  no  such  hard- 
ship can  exist.  For  if,  before  the  election  is  made,  his  property  on 
the  ocean  is  liable  to  capture  by  the  cruizers  of  his  native  and  deserted 
country,  its  is  not  only  free  from  capture  by  those  of  his  adopted 
country,  but  it  is  under  its  protection.  The  privilege  is  supposed  to  be 
equal  to  the  disadvantage,  and  is  therefore  just.  The  double  privilege 
claimed  seems  too  unreasonable  to  be  granted. 

It  will  be  observed,  that  in  the  foregoing  opinion  respecting  the  na- 
ture and  consequences  of  domicil,  very  few  cases  have  been  referred 
to.  It  was  thought  best  not  to  interrupt  the  chain  of  argument,  by 
stopping  to  examine  cases ;  but  faithfully  to  present  the  essential  prin- 
ciples to  be  extracted  from  those  which  were  cited  at  the  bar,  or  which 
have  otherwise  come  under  the  view  of  the  court,  and  which  applied 
to  the  subject.  With  what  success  this  has  been  executed,  is  not  for 
me  to  decide.  But  there  are  two  or  three  cases  which  seem  to  be  so 
applicable,  and  at  the  same  time  so  conclusive  on  the  great  points  of 
this  question,  that  it  may  not  be  improper  briefly  to  notice  them.  In 
support  of  the  general  principles,  that  the  national  character  of  the 
owner  at  the  time  of  capture,  must  decide  his  right  to  claim,  and  that 
a  subject  is  condemned  by  it,  even  in  the  courts  of  his  native  country, 
without  time  being  allowed  to  him  to  elect  to  remove,  the  following 
cases  may  be  referred  to.  In  The  Boedes  Lust,  5  Rob.  247,  it  was 
decided  that  the  property  of  a  resident  of  Demarara,  shipped  before 
hostilities  of  any  kind  had  occurred  between  Holland  and  Great  Brit- 
ain, but  which  was  captured  under  an  embargo  declared  by  England 
upon  Dutch  property,  as  preparatory  to  war  which  ensued  soon  after 
the  seizure,  was,  by  the  retroactive  effect  of  the  war  applied  to  prop- 
erty so  seized,  to  be  considered  as  the  property  of  an  enemy  taken  in 
war.  In  this  case.  Sir  W.  Scott  lays  it  down,  that,  where  property  is 
taken  in  a  state  of  hostility,  the  universal  practice  has  ever  been  to 
hold  it  subject  to  condemnation,  although  the  claimants  may  have 
become  friends  and  subjects  prior  to  the  adjudication.  This  case  is 
somewhat  stronger  than  the  present,  in  the  circumstances  that  in  that, 
the  state  of  hostility,  alleged  to  have  existed  at  the  time  of  capture 
was  made  out  by  considering  the  subsequent  declaration  of  war  as  re- 
lating back  to  the  time  of  seizure  under  the  embargo,  by  which  refer- 
ence it  was  decided  to  be  a  hostile  embargo,  and  of  course  tantamount 
to  an  actual  state  of  war.  But  this  case  also  proves,  not  only  that 
the  hostile  character  of  the  property  at  the  time  of  capture  establishes 
the  legality  of  it,  but  that  no  future  circumstance  changing  the  hostile 
character  of  the  claimant  to  that  of  a  friend  or  subject,  can  entitle 


680  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

him  to  restitution.  Whether  the  claimant,  in  this  case,  was  a  neutral 
or  a  British  subject,  does  not  appear.  But  if  the  former,  it  will  not, 
it  is  presumed,  be  contended  that  he  is,  upon  the  principles  of  national 
law,  less  to  be  favored  in  the  courts  of  the  belligerent,  than  a  subject 
of  that  nation  domiciled  in  the  country  of  the  adverse  belligerent. 

Whitehill's  Case,  however,  referred  to  frequently  in  Rob.  Reports, 
conies  fully  up  to  the  present,  because  he  was  a  British  subject,  who 
had  settled  but  a  few  days  in  the  hostile  country,  but  before  he  knew 
or  could  have  known  of  the  declaration  of  war;  yet,  as  he  went  there 
with  an  intention  to  settle,  this,  connected  with  his  residence,  short 
as  it  was,  fixed  his  national  character,  and  identified  him  with  the 
enemy  of  the  country  he  had  so  recently  quitted.  The  want  of  no- 
tice, and  of  an  opportunity  to  extricate  himself  from  a  situation  to 
which  he  had  so  recently  and  so  innocently  exposed  himself,  could 
not  prevail  to  protect  his  property  against  the  belligerent  rights  of  his 
own  country,  and  to  save  it  from  confiscation.  There  are  many  other 
strong  cases  upon  these  points,  which  I  forbear  to  notice  particularly, 
from  an  unwillingness  to  swell  this  opinion  already  too  long.     *     *     * 


THIRTY  HOGSHEADS  OF  SUGAR  (BENTZON,  Claimant)  v. 

BOYLE  et  al. 
(Supreme  Court  of  the  United  States,  1815.    9  Cranch,  191,  3  L.  Ed.  701.) 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court  as  follows :  ^* 
The  island  of  Santa  Cruz,  belonging  to  the  kingdom  of  Denmark,  was 
subdued  during  the  late  war,  by  the  arms  of  his  Britannic  Majesty. 
Adrien  Benjamin  Bentzon,  an  officer  of  the  Danish  government,  and  a 
proprietor  of  land  therein,  withdrew  from  the  island  on  its  surrender, 
and  has  since  resided  in  Denmark.  The  property  of  the  inhabitants 
being  secured  to  them,  he  still  retained  his  estate  in  the  island  under 
the  management  of  an  agent,  who  shipped  thirty  hogsheads  of  sugar, 
the  produce  of  that  estate,  on  board  a  British  ship,  to  a  commercial 
house  in  London,  on  account  and  risk  of  the  said  A.  B.  Bentzon.  On 
her  passage  she  was  captured  by  the  American  privateer,  the  Comet, 
and  brought  into  Baltimore,  where  the  vessel  and  cargo  were  libelled 
as  enemy  property.  A  claim  for  these  sugars  was  put  in  by  Bentzon ; 
but  they  were  condemned  with  the  rest  of  the  cargo ;  and  the  sentence 
was  affirmed  in  the  circuit  court.  The  claimant  then  appealed  to  this 
court. 

Some  doubt  has  been  suggested  whether  Santa  Cruz,  while  in  the 
possession  of  Great  Britain,  could  properly  be  considered  as  a  British 
island.  But,  for  this  doubt  there  can  be  no  foundation.  Although 
acquisitions  made  during  war  are  not  considered  as  permanent  until 
confirmed  by  treaty,  yet  to  every  commercial  and  belligerent  pur- 
pose, they  are  considered  as  a  part  of  the  domain  of  the  conqueror, 

IS  Tbe  statement  of  facts  is  omitted. 


Ch.  8)  DOMICILE  681 

so  long  as  he  retains  the  possession  and  government  of  them.  The 
island  of  Santa  Cruz,  after  its  capitulation,  remained  a  British  island 
until  it  was  restored  to  Denmark. 

.Must  the  produce  of  a  plantation  in  that  island,  shipped  by  the 
proprietor  himself,  who  is  a  Dane  residing  in  Denmark,  be  con- 
sidered as  British,  and  therefore  enemy  property?  In  arguing  this 
question,  the  counsel  for  the  claimants  has  made  two  points:  1.  That 
this  case  does  not  come  within  the  rule  applicable  to  shipments  from 
an  enemy  country,  even  as  laid  down  in  the  British  courts  of  admiral- 
ty. 2.  That  the  rule  has  not  been  rightly  laid  down  in  those  courts 
and  consequently  will  not  be  adopted  in  this. 

1.  Does  the  rule  laid  down  in  the  British  courts  of  admiralty  em- 
brace this  case? 

It  appears  to  the  court  that  the  case  of  the  Phoenix,  5  C.  Rob.  20,  is 
precisely  in  point.  In  that  case  a  vessel  was  captvired  in  a  voyage 
from  Surinam  to  Holland,  and  a  part  of  the  cargo  was  claimed  by  per- 
sons residing  in  Germany,  then  a  neutral  country,  as  the  produce  of 
their  estates  in  Surinam.  The  counsel  for  the  captors  considered  the 
law  of  the  case  as  entirely  settled.  The  counsel  for  the  claimants  did 
not  controvert  this  position.  They  admitted  it;  but  endeavoured  to 
extricate  their  case  from  the  general  principle  by  giving  it  the  protec- 
tion of  the  treaty*  of  Amiens.  In  pronouncing  his  opinion,  Sir  Wil- 
liam Scott  lays  down  the  general  rule  thus :  "Certainly  nothing  can 
be  more  decided  and  fixed,  as  the  principle  of  this  court  and  of  the  Su- 
preme Court  upon  very  solemn  argument,  than  that  the  possession  of 
the  soil  does  impress  upon  the  owner  the  character  of  the  country,  as 
far  as  the  produce  of  that  plantation  is  concerned,  in  its  transportation 
to  any  other  country,  whatever  the  local  residence  of  the  owner  may 
be.  This  has  been  so  repeatedly  decided,  both  in  this  and  the  superior 
court,  that  it  is  no  longer  open  to  discussion.  No  question  can  be 
made  on  the  point  of  law,  at  this  day." 

Afterwards,  in  the  case  of  The  Vrow  Anna  Catharina,  5  C.  Rob. 
167,  Sir  William  Scott  lays  down  the  rule,  and  states  its  reason.  "It 
cannot  be  doubted,"  he  says,  "that  there  are  transactions  so  radically 
and  fundamentally  national  as  to  impress  the  national  character,  inde- 
pendent of  peace  or  war,  and  the  local  residence  of  the  parties.  The 
produce  of  a  person's  own  plantation  in  the  colony  of  the  enemy, 
though  shipped  in  time  of  peace,  is  liable  to  be  considered  as  the  prop- 
erty of  the  enemy,  by  reason  that  the  proprietor  has  incorporated  him- 
self with  the  permanent  interests  of  the  nation  as  a  holder  of  the  soil, 
and  is  to  be  taken  as  a  part  of  that  country,  in  that  particular  trans- 
action, independent  of  his  own  personal  residence  and  occupation." 

This  rule  laid  down  with  so  much  precision,  does  not,  it  is  con- 
tended, embrace  Mr.  Bentzon's  claim,  because  he  has  not  "incorporated 
himself  with  the  permanent  interests  of  the  nation."  He  acquired 
the  property  while  Santa  Cruz  was  a  Danish  colony,  and  he  withdrew 
from  the  island  when  it  became  British.    This  distinction  does  not  ap- 


682  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

pear  to  the  court  to  be  a  sound  one.  The  identification  of  the  national 
character  of  the  owner  with  that  of  the  soil,  in  the  particular  transac- 
tion, is  not  placed  on  the  dispositions  with  which  he  acquires  the  soil, 
or  on  his  general  character.  The  acquisition  of  land  in  Santa  Cruz 
binds  him,  so  far  as  respects  that  land,  to  the  fate  of  Santa  Cruz,  what- 
ever its  destiny  may  be.  While  that  island  belonged  to  Denmark,  the 
produce  of  the  soil,  while  unsold,  was,  according  to  this  rule,  Danish 
property,  whatever  might  be  the  general  character  of  the  particular  pro- 
prietor. When  the  island  became  British,  the  soil  and  its  produce,  while 
that  produce  remained  unsold,  were  British.  The  general  commercial 
or  political  character  of  Mr.  Bentzen  could  not,  according  to  this  rule, 
affect  this  particular  transaction.  Although  incorporated,  so  far  as 
respects  his  general  character,  with  the  permanent  interests  of  Den- 
mark, he  was  incorporated  so  far  as  respected  his  plantation  in  Santa 
Cruz,  with  the  permanent  interests  of  Santa  Cruz,  which  was  at  that 
time  British :  and  though  as  a  Dane,  he  was  at  war  with  Great  Britain, 
and  an  enemy,  yet,  as  a  proprietor  of  land  in  Santa  Cruz,  he  was  no 
enemy;   he  could  ship  his  produce  to  Great  Britain  in  perfect  safety. 

The  case  is  certainly  within  the  rule  as  laid  down  in  the  British 
courts.  The  next  inquiry  is,  how  far  will  that  rule  be  adopted  in  this 
country?  The  law  of  nations  is  the  great  source  from  which  we  de- 
rive those  rules,  respecting  belligerent  and  neutral*  rights,  which  are 
recognized  by  all  civilized  and  commercial  states  throughout  Europe 
and  America.  This  law  is  in  part  unwritten,  and  in  part  conventional. 
To  ascertain  that  which  is  unwritten,  we  resort  to  the  great  principles 
of  reason  and  justice;  but,  as  these  principles  will  be  differently  un- 
derstood by  different  nations  under  different  circumstances,  we  con- 
sider them  as  being  in  some  degree,  fixed  and  rendered  stable  by  a  series 
of  judicial  decisions.  The  decisions  of  the  courts  of  every  country, 
so  far  as  they  are  founded  upon  a  law  common  to  every  country,  will  be 
received,  not  as  authority,  but  with  respect.  The  decisions  of  the  courts 
of  every  country  show  how  the  law  of  nations,  in  the  given  case,  is 
understood  in  that  country,  and  will  be  considered  in  adopting  the  rule 
which  is  to  prevail  in  this. 

Without  taking  a  comparative  view  of  the  justice  or  fairness  of  the 
rules  established  in  the  British  courts,  and  of  those  established  in  the 
courts  of  other  nations,  there  are  circumstances  not  to  be  excluded 
from  consideration,  which  give  to  those  rules  a  claim  to  our  attention, 
that  we  cannot  entirely  disregard.  The  United  States  having,  at  one 
time,  formed  a  component  part  of  the  British  Empire,  their  prize  law 
was  our  prize  law.  When  we  separated,  it  continued  to  be  our  prize 
law,,  so  far  as  it  was  adapted  to  our  circumstances  and  was  not  varied 
by  the  power  which  was  capable  of  changing  it. 

It  will  not  be  advanced,  in  consequence  of  this  former  relation  be- 
tween the  two  countries,  that  any  obvious  misconstruction  of  public 
law  made  by  the  British  courts,  will  be  considered  as  forming  a  rule 
for  the  American  courts,  or  that  any  recent  rule  of  the  British  courts 


Ch.  8)  DOMICILE  683 

is  entitled  to  more  respect  than  the  recent  rules  of  other  countries.  But 
a  case  professing  to  be  decided  on  ancient  principles  will  not  be  en- 
tirely disregarded,  unless  it  be  very  unreasonable,  or  be  founded  on 
a  construction  rejected  by  other  nations. 

The  rule  laid  down  in  the  Phoenix  is  said  to  be  a  recent  rule,  be- 
cause a  case  solemnly  decided  before  the  Lords  Commissioners  in 
1783,  is  quoted  in  the  margin  as  its  authority.  But  that  case  is  not 
suggested  to  have  been  determined  contrary  to  former  practice  or 
former  opinions.  Nor  do  we  perceive  any  reason  for  supposing  it  to 
be  contrary  to  the  rule  of  other  nations  in  a  similar  case.  The  opin- 
ion that  ownership  of  the  soil  does,  in  some  degree,  connect  the  owner 
with  the  property,  so  far  as  respects  that  soil,  is  an  opinion  which  cer- 
tainly prevails  very  extensively.  It  is  not  an  unreasonable  opinion. 
Personal  property  may  follow  the  person  anywhere ;  and  its  character, 
if  found  on  the  ocean,  may  depend  on  the  domicil  of  the  owner.  But 
land  is  fixed.  Wherever  the  owner  may  reside,  that  land  is  hostile  or 
friendly  according  to  the  condition  of  the  country  in  which  it  is  placed. 
It  is  no  extravagant  perversion  of  principle,  nor  is  it  a  violent  offense 
to  the  course  of  human  opinion  to  say  that  the  proprietor,  so  far  as 
respects  his  interest  in  this  land,  partakes  of  its  character;  and  that 
the  produce,  while  the  owner  remains  unchanged,  is  subject  to  the  same 
disabilities.  In  condemning  the  sugars  of  Mr.  Bentzon  as  enemy  prop- 
erty, this  court  is  of  opinion  that  there  was  no  error,  and  the  sentence 
is  affirmed  with  costs. 

Sentence  affirmed. 


THE  PRIZE  CASES. 

(Supreme  Court  of  the  United  States,  1862.    2  Black,  635,  17  L.  Ed.  459.) 

Mr.  Justice  GriEr^^  *  *  *  II.  We  come  now  to  the  considera- 
tion of  the  second  question.  What  is  included  in  the  term  "enemies' 
property"?  Is  the  property  of  all  persons  residing  within  the  terri- 
tory of  the  States  now  in  rebellion,  captured  on  the  high  seas,  to  be 
treated  as  "enemies'  property,"  whether  the  owner  be  in  arms  against 
the  government  or  not? 

The  right  of  one  belligerent  not  only  to  coerce  the  other  by  direct 
force,  but  also  to  cripple  his  resources  by  the  seizure  or  destruction  of 
his  property,  is  a  necessary  result  of  a  state  of  war.  Money  and  wealth, 
the  products  of  agriculture  and  commerce,  are  said  to  be  the  sinews  of 
war,  and  as  necessary  in  its  conduct  as  numbers  and  physical  force. 
Hence  it  is,  that  the  laws  of  war  recognize  the  right  of  a  belligerent  to 
cut  these  sinews  of  the  power  of  the  enemy,  by  capturing  his  property 
on  the  high  seas. 

i»  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


684  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

The  appellants  contend  that  the  term  "enemy"  is  properly  applicable 
to  those  only  who  are  subjects  or  citizens  of  a  foreign  state  at  war  with 
our  own.  They  quote  from  the  pages  of  the  common  law,  which  say, 
"that  persons  who  wage  war  against  the  king  may  be  of  two  kinds, 
subjects  or  citizens.  The  former  are  not  proper  enemies,  but  rebels  and 
traitors;  the  latter  are  those  that  come  properly  under  the  name  of 
enemies." 

They  insist,  moreover,  that  the  President  himself,  in  his  proclamation, 
admits  that  great  numbers  of  the  persons  residing  within  the  territories 
in  possession  of  the  insurgent  government,  are  loyal  in  their  feelings, 
and  forced  by  compulsion  and  the  violence  of  the  rebellious  and  revo- 
lutionary party  and  its  "de  facto  government"  to  submit  to  their  laws 
and  assist  in  their  scheme  of  revolution;  that  the  acts  of  the  usurping 
government  cannot  legally  sever  the  bond  of  their  allegiance ;  they  have, 
therefore,  a  co-relative  right  to  claim  the  protection  of  the  government 
for  their  persons  and  property,  and  to  be  treated  as  loyal  citizens,  till, 
legally  convicted  of  having  renounced  their  allegiance  and  made  war 
against  the  government  by  treasonably  resisting  its  laws. 

They  contend,  also,  that  insurrection  is  the  act  of  individuals  and  not 
of  a  government  or  sovereignty;  that  the  individuals  engaged  are 
subjects  of  law.  That  confiscation  of  their  property  can  be  effected  only 
under  a  municipal  law.  That  by  the  law  of  the  land  such  confiscation 
cannot  take  place  without  the  conviction  of  the  owner  of  some  offence, 
'  and  finally  that  the  secession  ordinances  are  nullities  and  ineffectual  to 
release  any  citizen  from  his  allegiance  to  the  national  government,  and 
consequently  that  the  Constitution  and  laws  of  the  United  States  are 
still  operative  over  persons  in  all  the  states  for  punishment  as  well  as 
protection. 

This  argument  rests  on  the  assumption  of  two  propositions,  each  of 
which  is  without  foundation  on  the  established  law  of  nations.  It 
assumes  that  where  a  civil  war  exists,  the  party  belligerent  claiming  to 
be  sovereign,  cannot,  for  some  unknown  reason,  exercise  the  rights  of 
belligerents,  although  the  revolutionary  party  may.  Being  sovereign, 
he  can  exercise  only  sovereign  rights  over  the  other  party.  The  insur- 
gent may  be  killed  on  the  battle-field  or  by  the  executioner;  his  prop- 
erty on  land  may  be  confiscated  under  the  municipal  law ;  but  the  com- 
merce on  the  ocean,  which  supplies  the  rebels  with  means  to  support 
the  war,  cannot  be  made  the  subject  of  capture  under  the  laws  of 
war,  because  it  is  "unconstitutional !  !  !"  Now,  it  is  a  proposition  never 
doubted,  that  the  belligerent  party  who  claims  to  be  sovereign,  may 
exercise  both  belligerent  and  sovereign  rights.  See  4  Cr.  272.  Treat- 
ing the  other  party  as  a  belligerent  and  using  only  the  milder  modes 
of  coercion  which  the  law  of  nations  has  introduced  to  mitigate  the 
rigors  of  war,  cannot  be  a  subject  of  complaint  by  the  party  to  whom 
it  is  accorded  as  a  grace  or  granted  as  a  necessity.  We  have  shown 
that  a  civil  war  such  as  that  now  waged  between  the  Northern  and 


Ch.  8)  DOMICILE  685 

Southern  States  is  properly  conducted  according  to  the  humane  regu- 
lations of  public  law  as  regards  capture  on  the  ocean. 

Under  the  very  peculiar  Constittition  of  this  government,  although 
the  citizens  owe  supreme  allegiance  to  the  federal  government,  they 
owe  also  a  qualified  allegiance  to  the  state  in  which  they  are  domiciled. 
Their  persons  and  property  are  subject  to  its  laws.  Hence,  in  organiz- 
ing this  rebellion,  they  have  acted  as  states  claiming  to  be  sovereign 
over  all  persons  and  property  within  their  respective  limits,  and  as- 
serting a  right  to  absolve  their  citizens  from  their  allegiance  to  the  fed- 
eral government.  Several  of  these  states  have  combined  to  form  a 
new  confederacy,  claiming  to  be  acknowledged  by  the  world  as  a 
sovereign  state.  Their  right  to  do  so  is  now  being  decided  by  wager 
of  battle.  The  ports  and  territory  of  each  of  these  states  are  held  in 
hostility  to  the  general  government.  It  is  no  loOse,  unorganized  insur- 
rection, having  no  defined  boundary  or  possession.  It  has  a  boundary 
marked  by  lines  of  bayonets,  and  which  can  be  crossed  only  by  force 
—south  of  this  line  is  enemies'  territory,  because  it  is  claimed  and  held 
in  possession  by  an  organized,  hostile  and  belligerent  power. 

All  persons  residing  within  this  territory  whose  property  may  be  used 
to  increase  the  revenues  of  the  hostile  power  are,  in  this  contest,  liable 
to  be  treated  as  enemies,  though  not  foreigners.  They  have  cast  off 
their  allegiance  and  made  war  on  their  government,  and  are  none  the 
less  enemies  because  they  are  traitors.  But  in  defining  the  meaning 
of  the  term  "enemies'  property,"  we  will  be  led  into  error  if  we  refer 
to  Fleta  and  Lord  Coke  for  their  definition  of  the  word  "enemy."  It 
is  a  technical  phrase  peculiar  to  prize  courts,  and  depends  upon  prin- 
ciples of  public  policy  as  distinguished  from  the  common  law. 

Whether  property  be  liable  to  capture  as  "enemies'  property"  does 
not  in  any  manner  depend  on  the  personal  allegiance  of  the  owner. 
"It  is  the  illegal  traffic  that  stamps  it  as  'enemies'  property.'  It  is  of  no 
consequence  whether  it  belongs  to  an  ally  or  a  citizen.  8  Cr.  384. 
The  owner,  pro  hac  vice,  is  an  enemy."  3  Wash.  C.  C.  R.  183.  The 
produce  of  the  soil  of  the  hostile  territory,  as  well  as  other  property 
engaged  in  the  commerce  of  the  hostile  power,  as  the  source  of  its 
wealth  and  strength,  are  always  regarded  as  legitimate  prize,  without 
regard  to  the  domicil  of  the  owner,  and  much  more  so  if  he  reside  and 
trade  within  their  territory.     *     *     *  20 

20  In  his  Digest  of  the  Law  of  EMgland  with  reference  to  the  Conflict  of 
Laws  (1896 :  2ci  Ed.  1908)  A.  V.  Dicey,  for  many  years  Viuerian  Professor  of 
English  in  the  University  of  Oxford,  discusses  commercial  domicile  in  time 
of  war  (Appendix,  note  7,  740-745).  After  saying  that  "in  most  cases  at  any 
rate"  trading  residence  or  commercial  domicile  is  the  test  of  enemy  character, 
not  nationality  or  allegiance,  Mr.  Dicey  thus  states  the  English  and  American 
law  on  this  question: 

"Every  person  domiciled  in  a  state  engaged  in  hostilities  with  our  own, 
whether  he  is  a  born  subject  of  that  state  or  not,  is  to  be  regarded  as  an 
alien  enemy  (1  Arnould,  Marino  Insurance  [3d  Ed.]  p.  121;  [7th  Ed.]  §  90; 
The  Indian  Chief,  3  C.  Ro)).  12,  22  [1801]) ;  and,  speaking  genernlly,  a  person 
domiciled  in  a  neutral  country  is  to  be  regarded  as  for  commercial  purposes 


686  BIGHTS  AND  DUTIES  OP  NATIONS  IN  TIME  OF  WAR         (Part  3 


LE  HARDY. 

(French  Prize  Court,  13  Fructidor,  Year  IX  [August  30,  1801].    1  Pistoye 
et  Duverdy,  321  [1855]). 

The  neutral  vessel  Le  Hardy,  laden  for  the  account  of  Coste  Lan- 
freda,  a  citizen  of  Ragusa,  consul  of  Ragusa  to  Messina,  was  ar- 
rested by  La  Voltigeante.  At  that  time  France  was  at  war  with  the 
king  of  the  Two  Sicilies ;  the  point  at  issue  is  to  know  whether  or  not 
Coste  Lanfreda,  citizen  and  consul  of  a  neutral  nation,  should  be  con- 
sidered as  an  enemy  or  as  a  neutral. 

Extract  of  conclusions  of  the  government  commissioner: 

Two  questions  are  to  be  solved:     The  first,  which  you  have  your- 

a  neutral,  even  though  he  be  in  fact  a  British  subject,  or  a  subject  of  a  state 
at  war  with  England  (The  Danous,  4  O.  Rob.  255,  note  [1802];  1  Duer,  The 
Law  and  Practice  of  Marine  Insurance  [1845]  494.  495,  520).  'The  position 
is  a  clear  one,  that  if  a  person  goes  into  a  foreign  country,  and  engages  in 
trade  there,  he  is,  by  the  law  of  nations,  to  be  considered  a  merchant  of  that 
country,  and  a  subject  for  all  civil  purposes,  whether  that  country  be  hostile 
or  neutral ;  and  he  cannot  be  permitted  to  retain  the  privileges  of  a  neutral 
character  during  his  residence  and  occupation  in  an  enemy's  country.'  1 
Kent's  Commentaries  on  American  Law  (12th  Ed.  1873)  p.  75.  A  person's 
character,  in  short,  as  a  friend  or  enemy,  is  in  time  of  war  to  be  determined 
by  what  is  termed  his  commercial  domicile.  Persons  who  are  commercially 
domiciled  in  a  neutral  country  are,  as  far  as  belligerents  are  concerned,  neu- 
trals ;  whilst,  on  the  other  hand,  persons  commercially  domiciled  in  a  hostile 
country  are,  whatever  their  nationality  or  allegiance,  to  be  considered  ene- 
mies, for  'persons  resident  in  a  country  carrying  on  trade,  by  which  both  they 
and  the  country  were  benefited,  were  to  be  considered  as  the  subjects  of  that 
country,  and  were  considered  so  by  the  law  of  nations,  at  least  so  far  as  by 
that  law  to  subject  their  property  to  capture  by  a  country  at  war  with  that 
in  which  they  lived.'  Tabbs  v.  Bendelack,  4  Esp.  106,  108  (1802)  per  Lord 
Kenyon.     *     *     * " 

A  civil  domicile,  according  to  Mr.  Dicey,  is  such  a  permanent  residence  as 
to  make  that  country  a  person's  home ;  and  a  commercial  domicile  is  a  resi- 
dence in  a  country  for  the  purpose  of  trade.  In  the  case  of  civil  domicile, 
residence  is  only  prima  facie  evidence;  whereas,  in  a  commercial  domicile, 
the  presumption  arising  from  residence  can  only  be  overcome  by  proving  af- 
firmatively that  the  person  has  "the  intention  of  not  continuing  to  reside  in 
such  country."  The  intention  to  abandon  a  civil  domicile  is  only  changed  by 
"complete  abandonment  in  fact  of  the  country  where  a  person  is  domiciled 
(In  Goods  of  Rafeenel,  32  L.  J.  P.  &  M.  203  [1863]);  whereas,  "a  commercial 
domicile  in  time  of  war  can,  it  would  seem,  be  changed,  under  some  circum- 
stances, by  the  intention  to  change  it,  accompanied  by  steps  taken  for  the 
purpose  of  effecting  a  change."  Domicile  once  acquired  cannot,  it  is  believed, 
be  changed  in  war  to  the  detriment  of  the  country  whereof  the  person  was  a 
subject  or  citizen. 

Mr.  Justice  Story  was  of  this  opinion,  saying  in  The  Dos  Hermanos,  2 
Wheat.  76,  98,  4  L.  Ed.  189  (1817)  :  "There  is  certainly  much  reason  to  doubt" 
that  an  American  citizen  could  not  "flagrante  bello,  acquire  a  neutral  char- 
acter, so  as  to  separate  himself  from  that  of  his  native  country." 

Mr.  Justice  Story's  opinion  seems  to  be  shared  by  Mr.  Dicey,  who  says : 

"Thus,  according  to  American  decisions  at  least,  an  American  citizen  (and 
the  same  principle  would  perhaps  be  applied  by  English  courts  to  British  sub- 
jects) cannot,  by  emigration  from  his  own  countrj^  during  the  existence  of 
hostilities,  acquire  such  a  foreign  domicile  as  to  protect  his  trade  during  the 
war  against  the  belligerent  claims  either  of  his  own  country  or  of  a  hostile 
power.  1  Duer,  The  Law  and  Practice  of  Marine  Insurance,  p.  521;  The 
Dos  Hermanos,  2  Wheaton,  76,  4  L.  Ed.  189  (1817)." 


Ch.  8)  DOMICILE  687 

selves  submitted  to  the  Minister  of  Foreign  Affairs,  is  thus  set  forth: 
"Is  merchandise  belonging  to  an  individual  of  neutral  origin,  but  hav- 
ing a  domicil  and  a  commercial  establishment  in  an  enemy  country, 
subject  to  confiscation  as  having  taken  on  an  enemy  character?" 

The  second  question  consists  in  knowing  "whether  or  not  the  status 
of  consul  of  a  neutral  power,  within  the  territory  of  a  state  at  war,  re- 
serves to  the  said  consul  and  to  the  commercial  transactions  in  which 
he  is  engaged,  an  absolute  character  of  neutrality  which  should  cause 
his  property  to  be  respected  by  belligerent  nations,  even  in  a  case 
where  the  status  of  a  native  of  a  neutral  country  is  not  sufficient  for 
a  simple  citizen  thereof  to  enjoy  fully  the  benefit  of  such  neutrality, 
when  he  is  inhabiting  and  domiciled  in  enemy  territory?" 

With  the  letter  of  the  minister  at  hand,  and  guided  by  publicists  who 
have  written  upon  this  subject,  I  shall  proceed  to  examine  these  two 
questions  as  succinctly  as  possible. 

Residence  in  a  foreign  country,  if  one  agrees  with  the  principles  set 
forth  by  the  Minister  of  Foreign  Affairs,  does  not  prevent  an  individ- 
ual from  belonging  to  the  country  of  his  birth.  To  cease  to  belong 
to  his  native  country,  it  is  necessary  that  he  voluntarily  choose  to  do 
so,  and  that  he  himself  be  adopted  regularly  by  a  new  country.  With- 
out such  renunciation  on  his  part  of  his  old  country,  without  such 
adoption  on  the  part  of  the  one  he  prefers,  he  remains  what  he  was 
originally,  friend  of  the  friends  and  enemy  of  the  enemies  of  his  na- 
tive country ;  and  when  this  country  is  neutral,  he  too  remains  neutral 
and  should  enjoy  both  for  his  person  and  for  his  property  all  the  advan- 
tages of  neutrality. 

"For  his  property  and  for  his  person"  because  the  former  shares  the 
fate  of  the  latter;  because  when  the  words  "enemy"  and  "neutral" 
are  used  in  speaking  of  things,  it  is  clear  that  these  words  are  but 
figurative  expressions,  according  to  which  the  qualification  of  the 
thing  possessed  is  conveyed  from  the  one  who  possesses  it.  Now,  if 
this  qualification  of  the  thing  possessed  depends  on  the  status  of  him 
who  possesses  it,  as  a  necessary  consequence,  that  thing  should  be  treat- 
ed as  neutral  and  its  owner,  even  though  inhabiting  an  enemy  country, 
should  be  respected  as  a  real  subject  or  citizen  of  a  neutral  power  or 
nation.  This  assertion  results  from  still  another  principle,  namely 
that  war  is  not  a  relation  of  man  to  man,  nor  of  societies  to  individu- 
als, but  rather  of  societies  between  themselves;  now,  in  other  terms, 
a  State  can  have  no  enemies  but  other  States  and  not  men.     *     *     * 

Thd  Court,  having  heard  the  report  of  the  citizen  Lacoste,  member 
of  the  court: 

Because  of  the  fact  that  it  appears,  principally  from  tlie  documents, 
that  there  has  existed  no  serious  difficulty  regarding  the  regularitv  of 
the  documents  relative  to  the  ship,  which  was  removed  immediately 
after  the  decision  of  the  commercial  court;  that,  as  regards  the  cargo, 
Coste  Lanfreda,  the  proprietor,  exercising  at  Messina  the  functions 
of  consul  of  Ragusa,  proved  before  the  court  of  appeals  that  he  was 


688  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

a  native  of  Ragusa,  thus  permitting  us  to  pass  over  the  vague  asser- 
tion of  the  captain  to  the  effect  that  he  bcHeved  him  to  be  a  subject 
of  Naples;  that  there  was  no  double  destination  stated,  and  that  even 
if  there  had  been,  of  the  two  ports  indicated  one  was  neutral  and  the 
other  allied,  so  there  was  no  reasonable  ground  for  suspicion ;  that 
the  law  of  the  29th  Nivose,  Year  VI,  concerning  merchandise  of  Eng- 
lish manufacture  only,  could  not  be  applied  to  the  Two  Sicilies,  which 
had  not  been  occupied  by  the  troops  of  Great  Britain  by  right  of  con- 
quest; that,  therefore,  to  decide  the  status  of  the  cargo  of  the  ves- 
sel Le  Hardy,  it  suffices  to  examine  into  whether  or  not  it  can  be  con- 
sidered as  enemy,  on  the  grounds  that  Coste  Lanfreda,  native  and  con- 
sul of  Ragusa,  resided  in  this  capacity  and  conducted  business  at  Mes- 
sina, a  country  then  at  war  with  the  French  Republic ;  that  this  ques- 
tion of  public  law  is  easily  decided  in  the  negative,  attention  being  paid 
to  the  fact  that  residence  in  a  foreign  country  does  not  prevent  an  in- 
dividual from  belonging  to  the  countr}'-  wherein  he  was  born ;  that, 
for  him  to  cease  to  belong  to  his  native  country  it  is  necessary  for  him 
voluntarily  to  choose  a  new  country,  and  that  he  be  regularly  adopted 
by  it;  that  without  such  renunciation  on  his  part  of  his  old  country, 
without  this  necessary  adoption,  he  remains  what  he  was  originally^ 
friend  of  the  friends  and  enemy  of  the  enemies  of  his  native  country ; 
that,  when  his  native  country  is  neutral,  he  remains  neutral  himself, 
and  should  enjoy  for  his  person,  as  for  his  property,  all  the  advantages 
of  neutrality  because  such  property  has  not  by  itself  neutral  or  hostile 
character,  but  always  assumes  that  of  its  owner ;  that  besides,  war  be- 
ing not  a  relation  of  man  to  man,  or  of  societies  to  individuals,  but 
rather  of  states  among  themselves,  one  can  not  be  forced  to  take  part 
therein  who  has  not  shown  an  express  intention  of  uniting  with  the 
belligerent  power,  the  territory  of  which  he  inhabits ;  that  the  incon- 
veniences and  abuses  resulting  from  a  contrary  system,  however  grave 
they  may  be,  are  more  than  balanced  by  the  advantage  drawn  by  the 
commercial  world  from  the  protection  and  the  favor  accorded  by  the 
belligerents  to  neutral  commerce,  whatever  side  it  takes ;  that  while 
enemy  natives,  although  established  in  a  neutral  country  and  there 
conducting  business  under  the  protection  of  the  enemy  flag,  do  not 
lose  their  enemy  character,  it  would  be  at  the  same  time  disloyal  and 
unreasonable,  following  the  occurrence  and  variable  chances  of  war, 
to  assimilate  neutral  natives  to  enemies,  solely  because  they  reside  and 
conduct  business  in  an  enemy  country;  that  the  publicists  of  those 
remote  times  when  force  took  more  or  less  the  place  of  right,  were 
able  to  state  contrary  facts  and  to  profess  opposed  principles ;  but 
that  the  successive  progressive  steps  of  civilization,  the  want,  uni- 
versally felt,  of  the  growth  and  liberty  of  commercial  relations  be- 
tween peoples,  by  bringing  out  more  sane  ideas,  have  caused  to  pre- 
vail the  more  liberal  ideas  proclaimed  by  the  government  today  as 
typical  of  its  policy  and  as  a  gage  of  its  love  of  humanity;  that  in  set- 
ting forth  these  considerations  in  the  present  case,  we  see  that  an 


Ch.  8)  DOMICILE  689 

owner  of  neutral  origin,  by  his  residence  in  a  country  momentarily 
become  hostile,  and  by  his  commercial  speculations,  could  not  lose 
the  advantages  of  his  neutrality,  with  all  the  more  reason  because  ex- 
ercising there  the  function  of  consul  of  the  country  of  his  origin,  he 
has  not  ceased  to  belong  to  it  in  fact  or  in  law,  and,  in  any  case,  nei- 
ther his  person  nor  his  commerce,  which  are  inseparable,  could  be  con- 
sidered as  enemy ; 

Decides  that  the  prize  taken  by  the  French  privateer  La  Voltigeante, 
of  the  Ragusan  ship  Le  Hardy,  is  void  and  illegal,  and  withdraws  in 
favor  of  the  owners  all  claims  both  to  the  ship  and  to  the  cargo.**^ 


THE  OCEAN. 
(High  Court  of  Admiralty,  1S04.    5  C.  Rob.  90.) 

This  was  a  case  of  a  claim  given  on  behalf  of  Mr.  F ,  a  British- 
born  subject,  who  had  been  settled  as  a  merchant  in  Flushing,  but  who, 
on  the  appearance  of  approaching  hostilities,  had  taken  means  to  re- 
move himself,  and  return  to  England.  The  affidavit  of  the  claimant 
stated,  that  in  the  month  of  July,  1803,  he  actually  effected  his  escape, 
and  returned  to  this  country;  that  he  had  actually  dissolved  his  part- 
nership; and  that  he  had  continued  to  reside  in  Holkmd  after  the  war, 
only  under  the  detention  so  unwarrantably  applied  to  all  Englishmen 
resident  in  the  country  of  the  enemy  at  the  breaking  out  of  hostilities. 

Sir  W.  Scott.  This  claim  relates  to  the  situation  of  British  subjects 
settled  in  foreign  states  in  time  of  amity,  and  taking  early  measures 
to  withdraw  themselves  on  the  breaking  out  of  war.  The  affidavit  of 
claim  states,  that  this  gentleman  had  been  settled  as  a  partner  in  a 
house  of  trade  in  Holland,  but  that  he  had  made  arrangements  for  the 
dissolution  of  the  partnership,  and  was  only  prevented  from  removing 
personally,  by  the  violent  detention  of  all  British  subjects,  who  hap- 
pened to  be  within  the  territories  of  the  enemy  at  the  breaking  out  of 
the  war.  It  would,  I  think,  under  these  circumstances,  be  going  far- 
ther than  the  principle  of  law  requires,  to  conclude  this  person,  by  his 
former  occupation,  and  by  his  present  constrained  residence  in  France, 
so  as  not  to  admit  him  to  have  taken  himself  out  of  the  effect  of 

21  "It  is  to  be  noted  that  the  Fi-ench  Commissions  of  Trize  have  remained 
faithful  to  the  principle  proclaimed  1.3  Fructidor,  year  IX  [1801].  There  is  a 
decision  of  27  PluviOse,  year  X  [1802],  and  if  there  were  no  decisions  in  the 
War  of  1854-56,  a  number  of  decisions  were  rendered  in  the  War  of  ISTO-lSTl, 
which  established  the  doctrine  of  nationality."  Ernest  Nys.  I^  Droit  Inter- 
national, Les  Principes,  Les  Th^'ories,  Les  Faits.  v.  3,  pp.  78.  79  (1912). 

In  the  case  of  The  ^'enezuela.  Joiirnal  Offlciel,  March  14,  1919,  p.  2710.  the 
French  Prize  Council  condemned  ten  packages  sent  by  parcels  post  seized 
aboard  a  French  steamer  in  the  port  of  Saint  Nazaire,  on  the  ground  that 
they  were  addressed  to  two  German  houses  domiciled  in  Mexico — thus  ap- 
plying the  French  theory  of  domicile  in  preference  to  the  Anglo-American 
theory. 

Scott  Int. Law — 44 


690  RIGHTS   AND   DUTIES  OF  NATIONS  IN  TIME   OF  WAR         (Part  3 

supervening  hostilities,  by  the  means  which  he  had  used  for  his  remov- 
al. On  sufificient  proof  being  made  of  the  property,  I  shall  be  dis- 
posed to  hold  him  entitled  to  restitution.^^ 


THE  WILLIAM  BAGALEY. 
(Supreme  Court  of  the  United  States,  1866.    5  Wall.  377,  18  L.  Ed.  583.) 

Mr.  Justice  Clifford  delivered  the  opinion  of  the  court.^^ 

The  steamer  and  cargo  were  captured  as  prize  of  war  on  the  18th 
day  of  July,  1863,  and,  having  been  duly  libelled  and  prosecuted  as 
such  in  the  District  Court,  on  the  17th  day  of  August  following,  they 
were  both  condemned  as  forfeited  to  the  United  States.     *     *     * 

1.  Captors  contend  that  the  steamer  and  cargo  were  both  rightfully 
condemned  as  enemy  property,  and  also  for  breach  of  blockade.  Ap- 
pellant denies  the  entire  proposition  as  respects  his  interest  in  the  cap- 
tured property,  and  insists  that  the  one-sixth  of  the  same  belonging  to 
him  cannot  properly  be  condemned  on  either  ground,  because  he  was 
never  domiciled  in  the  rebellious  States,  and  because  he  never  em- 
ployed the  property,  either  actually  or  constructively,  in  any  il- 
legal trade  with  the  enemy,  or  in  any  attempt  to  break  the  block- 
ade.    *     *     * 

3.  Proclamation  of  blockade  was  made  by  the  President  on  the  nine- 
teenth day  of  April,  1861,  and  on  the  thirteenth  day  of  July,  in  the 
same  year,  Congress  passed'  a  law  authorizing  the  President  to  inter- 


2  2  So,  in  The  Doornbaag.  restitution  was  decreed  to  A.  B.,  removing  from 
Holland,  of  a  ship  and  parts  of  the  cargo  allotted  to  him  on  the  dissolution 
of  the  partnership,  for  the  purpose  of  his  removal.  The  situation  of  British 
subjects  wishing  to  remove  from  the  country  of  the  enemy  on  the  event  of  a 

ar,  but  prevented  by  the  sudden  interruption  of  hostilities  from  taking 
measures  for  removing  sufficiently  early  to  enable  them  to  obtain  restitution, 
forms  not  unfrequently  a  case  of  considerable  hardship  in  the  Prize  Court.  In 
such  cases  it  would  be  advisable  for  persons  so  situated,  on  their  actual  re- 
moval, to  make  application  to  government  for  a  special  pass,  rather  than  to 
hazard  valuable  property,  to  the  effect  of  a  mere  previous  intention  to  remove, 
dubious  as  that  intention  may  frequently  nprear  under  the  circumstances 
that  prevent  it  from  being  carried  into  execution.     [Reporter's  note.]. 

In  the  case  of  The  Flamenco,  1  British  and  Colonial  Prize  Cas.  509  (1915), 
it  was  held,  as  stated  in  the  headnote,  that : 

"An  enemy  subject  who  has  acquired  a  trade  domicile  in  a  neutral  country 
loses  that  domicile  if,  on  the  outbreak  of  war,  he  leaves  the  neutral  country 
for  another  neutral  country,  in  the  absence  of  evidence  that  his  departure  is 
merely  temporary." 

See  The  Lutzow  (No.  5)  3  British  and  Colonial  Prize  Cas.  37,  45  (1917),  in 
which  the  Privy  Council  cited  leading  cases,  and  stated,  per  Sir  Arthur  Chan- 
nell,  that: 

"On  the  outbreak  of  war  the  appellants  were  entitled  to  save  themselves 
from  being  treated  by  Great  Britain  and  her  allies  as  an  enemy  in  respect  of 
their  German  branch  by  promptly  ceasing  to  carry  on  trade  in  Germany,  and 
if,  for  the  purpose  of  doing  so,  they  removed  from  Germany  by  sea  any 
property  which  they  then  had  in  Germany,  it  would  during  its  transit  for  that 
purpose  be  free  from  seizure  and  condemnation  as  enemy  property." 

23  The  statement  of  facts  is  omitted. 

Scott  Int.Law 


Ch.  8)  DOMICILE  691 

diet,  by  proclamation,  all  trade  and  intercourse  between  the  inhab- 
itants of  the  states  in  insurrection  and  the  rest  of  the  United  States.^* 

Provision  of  the  sixth  section  of  the  act  is  that,  after  fifteen  days 
from  the  issuing  of  such  proclamation,  "any  ship  or  vessel  belonging 
in  whole  or  part  to  any  citizen  or  inhabitant"  of  a  state  or  part  of  a 
state,  whose  inhabitants  shall  be  so  declared  to  be  in  insurrection,  if 
found  at  sea  or  in  the  port  of  any  loyal  state,  may  be  forfeited.  Ref- 
erence is  made  to  those  provisions,  as  showing  that  our  citizens  were 
duly  notified  that  Congress  as  well  as  the  President  had  recognized 
the  undeniable  fact  that  civil  war  existed  between  the  constitutional 
government  and  the  Confederate  States;  and  that  seasonable  notice 
was  given  to  all  whose  interests  could  be  afifected,  and  that  ample  op- 
portunity and  every  facility  were  extended  to  them,  which  could  prop- 
erly be  granted,  to  enable  them  to  withdraw  their  effects  from  the 
states  in  rebellion,  or  to  dispose  of  such  interests  as  in  the  nature  of 
things  could  not  be  removed. 

Open  war  had  existed  between  the  belligerents  for  more  than  two 
years  before  the  capture  in  this  case  was  made,  and  yet  there  is  not 
the  slightest  evidence  in  the  record  that  the  appellant  ever  attempted 
or  manifested  any  desire  to  withdraw  his  effects  in  the  partnership 
or  to  dispose  of  his  interest  in  the  steamer.  Effect  of  the  war  was 
to  dissolve  the  partnership,  and  the  history  of  that  period  furnishes 
plenary  evidence  that  ample  time  was  afforded  to  every  loyal  citizen 
desiring  to  improve  it,  to  withdraw  all  such  effects  and  dispose  of  all 
such  interests.  "Partnership  with  a  foreigner,"  says  Maclachlan,  "is 
dissolved  by  the  same  event  which  makes  him  an  alien  enemy;"  and 
Judge  Story  says,  "that  there  is  in  such  cases  an  utter  incompatibility 
created  by  operation  of  law  between  the  partners  as  to  their  respec- 
tive rights,  duties,  and  obligations,  both  public  and  private,  and  there- 
fore that  a  dissolution  must  necessarily  result  therefrom,  independent 
of  the  will  or  acts  of  the  parties."  ^^ 

Executory  contracts  with  an  alien  enemy,  or  even  with  a  neutral, 
if  they  cannot  be  performed  except  in  the  way  of  commercial  inter- 
course with  the  enemy,  are  ipso  facto  dissolved  by  the  declaration  of 
war,  which  operates  to  that  end  and  for  that  purpose  with  a  force 
equivalent  to  that  of  an  act  of  Congress.^^ 

Duty  of  a  citizen  when  war  breaks  out,  if  it  be  a  foreign  war,  and 
he  is  abroad,  is  to  return  without  delay;  and  if  it  be  a  civil  war,  and 
he  is  a-  resident  in  the  rebellious  section,  he  should  leave  it  as  soon  as 
practicable  and  adhere  to  the  regular  established  government.  Domi- 
cile in  the  law  of  prize  becomes  an  important  consideration,  because 
every  person  is  to  be  considered  in  such  proceedings  as  belonging  to 

24  12  Stat,  at  Larfjo,  12r>8,  257. 

an  Maclachlan  on  Shipping,  475 ;    Story  on  Partnership.  §  .^Ifi:    Oriswold  v. 
Waddington,  15  Johns.  (N.  Y.)  57  (1818) ;    Id.,  IG  Johns.  (N.  Y.)  438  (1819), 
"zoExposito  V.  Bowden,  7  Ellis  &  Bl.  763  (1857). 


/ 


692  RIGHTS   AND   DUTIES   OP   NATIONS   IN   TIME   OF   WAR         (Part  3 

that  country  where  he  has  his  domicile,  whatever  may  be  his  native 
or  adopted  country.^' 

4.  Personal  property,  except  such  as  is  the  produce  of  the  hostile 
soil,  follows  as  a  general  rule  the  rights  of  the  proprietor;  but  if  it  is 
suffered  to  remain  in  the  hostile  country  after  war  breaks  out,  it  be- 
comes impressed  with  the  national  character  of  the  belligerent  where 
it. is  situated.  Promptitude  is  therefore  justly  required  of  citizens 
resident  in  the  enemy  country,  or  having  personal  property  there,  in 
changing  their  domicile,  severing  those  business  relations,  or  disposing 
of  their  effects,  as  matter  of  duty. to  their  own  government,  and  as 
tending  to  weaken  the  enemy.  Presumption  of  the  law  of  nations  is 
against  one  who  lingers  in  the  enemy's  country,  and  if  he  continue 
there  for  much  length  of  time,  without  satisfactory  explanations,  he 
is  liable  to  be  considered  as  remorant,  or  guilty  of  culpable  delay,  and 
an  enemy.^* 

Ships  purchased  from  an  enemy  by  such  persons,  though  claimed 
to  be  neutral,  are  for  the  same  reasons  liable  to  condemnation,  unless 
the  delay  of  the  purchaser  in  changing  his  domicile  is  fully  and  satis- 
factorily explained.  Omission  of  the  appellant  to  dispose  of  his  in- 
terest in  the  steamer,  and  his  failure  to  withdraw  his  effects  from  the 
rebellious  state,  are  attempted  to  be  explained  and  justified,  because 
the  same  were,  as  alleged  in  the  petition,  confiscated  during  the  re- 
bellion under  the  authority  of  the  rebel  government.  More  than  a 
year  however  had  elapsed  after  the  proclamation  of  blockade  was 
issued  before  any  such  pretended  confiscation  took  place.  Members 
of  a  commercial  firm  domiciled  in  the  enemy  country,  whether  citi- 
zens or  neutrals,  after  having  been  guilty  of  such  delay  in  disposing 
of  their  interests  or  in  withdrawing  their  effects,  cannot,  when  the 
property  so  domiciled  and  so  suffered  to  remain,  is  captured  as  prize 
of  war,  turn  round  and  defeat  the  rights  of  the  captors  by  proving 
that  their  own  domicile  was  that  of  a  friend,  or  that  they  had  no  con- 
nection with  the  illegal  voyage. 

Property  suffered  so  to  remain  has  impressed  upon  it  the  character 
of  enemy  property,  and  may  be  condemned  as  such  or  for  breach  of 
blockade.  Prize  courts  usually  apply  these  rules  where  the  partner- 
ship effects  of  citizens  or  neutrals  is  suffered  to  remain  in  the  enemy 
country,  under  the  control  and  management  of  the  other  partners  who 
are  enemies.     *     *     * 

Giving  full  effect  to  the  admissions  in  this  case,  the  appellant  shows 
no  just  ground  for  the  reversal  of  the  decree  made  by  the  District 
Court.     *     *     * 

Decree  of  the  District  Court  affirmed.^* 

2  7  The  Vigilantia,  1  C.  Rob.  1  (1798);  The  Venus,  8  Cranch,  288,  3  L.  Ed. 
553  (1814);    3  l^hillimore's  International  Law,  128. 

i8  Maclachlan  on  Shippina;.  -ISO;  The  Ocean,  5  Rob.  91  (1804);  The  Venus,  8 
Cranch,  278,  3  L.  Ed.  5-53  (1814). 

2  3  In  The  Joseph,  1  Gall.  545,  13  Fed.  Cas.  1126,  1128,  No.  7,533  (1813),  Mr. 


Ch.  8)  DOMICILE  693 

Justice  Story  had  said  at  circuit:  "It  has  been  further  argued,  that  a  decla- 
ration of  war  is,  in  effect,  a  command  to  the  citizens  of  the  belligerent  conn- 
try  abroad  at  the  time,  to  return  home,  and  that  the  law  allows  a  reasonable 
time  and  way  to  effect  it.  I  am  not  aware  of  any  principle  of  public  law, 
Avhich  obliges  every  absent  citizen  to  return  to  his  conntry,  on  the  breaking 
out  of  a  war ;  nor  has  any  authority  been  produced  which  countenances  the 
position.  It  may  be  admitted,  that  the  sovereign  power  of  the  country  has  a 
right  to  require  the  services  of  all  its  citizens,  in  time  of  war,  and  for  this 
purpose  may  recall  them  home  under  penalties  for  disobedience.  But  until 
the  sovereign  power  has  promulgated  such  command,  the  citizens  of  the 
country  have  a  perfect  right  to  pursue  their  ordinary  business  and  trade  in 
and  with  all  other  countries,  except  that  of  the  enemy.  Upon  any  other  sup- 
position, all  foreign  commerce  would,  during  war,  be  suspended;  for  if  it 
were  the  duty  of  absent  citizens  to  return,  it  would,  upon  the  same  principle, 
be  the  duty  of  those  at  home  to  remain  there.  As  to  citizens  in  the  hostile- 
country,  the  declaration  of  war  imports  a  suspension  of  all  further  commerce, 
with  such  country,  and  obliges  them  to  return,  unless  they  would  be  involved 
in  all  the  consequences  of  the  hostile  character.  If  they  wish  to  return,  they 
must  do  it  in  a  manner,  which  does  not  violate  the  laws ;  and  their  property 
cannot  be  removed  with  safety  from  the  enemy  country,  unless  under  the 
sanction  of  their  own  government.  But  even  if  the  position  were  generally 
true,  that  is  contended  for,  the  law  would  never  deem  that  a  reasonable  mode 
of  conveying  property  home,  which  involved  it  in  a  noxious  trade  with  the 
public  enemy.  That  can  never  be  held  to  be  a  reasonable  mode  of  returning 
a  ship  to  the  United  States,  which  involves  her  in  a  traffic  forbidden  by  the 
laws.  However,  I  am  well  satisfied,  that  the  position  cannot  be  maintained 
in  any  extent  adequate  to  the  purpose,  for  which  it  has  been  introduced." 

The  doctrine  laid  down  in  the  principal  case  appears  to  have  met  with  the 
approval  of  the  Supreme  Court: 

"Brinkley,  in  his  answer,  claims  to  have  gone  within  the  insurrectionary 
lines  as  a  private  citizen  and  upon  private  business.  *  *  *  He  was,  there- 
fore, in  the  very  fullest  legal  sense,  an  enemy  of  the  government  during  his 
stay  within  the  military  lines  of  the  rebellion,  liable  to  be  treated  as  such 
both  as  to  his  person  and  property.  His  remaining  there  was  in  plain  viola- 
tion of  law  and  in  disregiu'd  of  duty.  In  The  William  Bagaley,  5  Wall.  377, 
18  L.  Ed.  583  (18fi6),  we  said  that  'it  was  the  duty  of  a  citizen  when  war 
breaks  out,  if  it  be  a  foreign  ^war  and  he  is  abroad,  to  return  without  delay ; 
and  if  it  be  a  civil  war,  and  he  is  a  resident  in  the  rebellious  section,  he 
should  leave  it  as  soon  as  practicable,  and  adhere  to  the  regular  established 
government.' "  Per  Mr.  Justice  Harlan  in  Gates  v.  Goodloe,  101  U.  S. '  612, 
617,  25  L.  Ed.  895  (1879). 

"The  liability  of  the  property  is  irrespective  of  the  status  domicilii,  guilt 
or  innocence  of  the  owner.  If  it  come  from  enemy  territory,  it  bears  the  im- 
press of  enemy  property.  If  it  belong  to  a  loyal  citizen  of  the  country  of  the 
captors,  it  is  nevertheless  as  much  liable  to  condemnation  as  if  owned  by  a 
citizen  or  sulj.iect  of  the  hostile  country  or  by  the  hostile  government  itself. 
The  only  qualification  of  these  rules  is,  that  where,  upon  the  breaking  out  of 
hostilities,  or  as  soon  after  as  possible,  the  owner  escapes  with  such  property 
as  he  can  take  with  him,  or  in  good  faith  thus  early  removes  his  property, 
with  the  view  of  putting  it  beyond  the  dominion  of  the  hostile  power,  the  prop- 
erty in  such  cases  is  exempt  from  the  liability  which  would  otherw:^^e  attend 
it.  Such,  with  this  limitation,  is  the  settled  law  of  this  and  of  all  other 
prize  courts."  Per  Mr.  Justice  Swayne  in  The  Gray  Jacket,  5  Wall.  342,  300. 
370,  IS  L.  Ed.  646  (1866). 


694  RIGHTS  AND  DUTIES  OP  NATIONS   IN  TIME  OF  WAR         (Part  3 

CHAPTER  IX 
OCCUPATION;   CONQUEST;   MARTIAL  LAW 


THE  SANTA  ANNA. 
(High  Court  of  Admiralty,  1809.    1  Edwards,  180.) 

This  was  the  case  of  a  Spanish  ship  and  cargo,  which  was  captured 
21st  August,  1809,  by  the  private  ship  of  war  John  Bull,  on  a  voyage 
from  Montrico  to  Cadiz ;  with  an  ostensible  destination  to  St.  Andero. 

On  the  part  of  the  captors  it  was  contended — That  the  parties  on 

whose  behalf  the  claim  was  given,  were  resident  in  that  part  of  Spain 

which  was  under  the  dominion  of  the  French,  and,  consequently,  that 

they  had  not  a  persona  standi  in  the   British  Court  of  Admiralty. 
*     *     * 

Sir  William  Scott.  I  think  it  is  clearly  the  intention  of  the  govern- 
ment of  this  country,  publicly  expressed,  that  all  Spanish  property 
should  be  treated  with  the  utmost  possible  tenderness.  The  order  in 
council  of  the  4th  July,  1808,  declares  that  "all  hostilities  against  Spain, 
on  the  part  of  his  Majesty,  shall  immediately  cease" ;  here,  then,  is  a 
total  extinction  of  hostilities  proclaimed,  without  any  exception  or 
limitation  whatever.  In  the  third  and  fourth  articles  of  the  same  or- 
der it  is  provided,  "that  all  ships  and  vessels  belonging  to  Spain  shall 
have  free  admission  into  the  ports  of  his  Majesty's  dominions,  as  be- 
fore the  present  hostilities ;  and  that  all  ships  and  vessels  belonging 
to  Spain,  which  shall  be  met  with  by  any  of  his  Majesty's  ships  and 
cruisers,  shall  be  treated  in  the  same  manner  as  the  ships  of  states  in 
amity  with  his  Majesty."  Here,  again,  is  no  restrictive  distinction  of 
particular  parts  of  Spain,  but  peace  and  amity  are  proclaimed  generally 
with  that  country,  in  exactly  the  same  terms  as  would  have  been  em- 
ployed in  a  definitive  treaty.  Under  these  public  declarations  of  the 
state,  establishing  this  general  peace  and  amity,  I  do  not  know  that  it 
would  be  in  the  power  of  this  court  to  condemn  Spanish  property, 
though  belonging  to  persons  resident  in  those  parts  of  Spain  which  are, 
at  the  present  moment,  under  French  control,  except  under  such  cir- 
cumstances as  would  justify  the  confiscation  of  neutral  property.  The 
order  in  council  appears  to  be  framed  under  the  impression,  that  the 
general  disposition  of  the  inhabitants  is  friendly  to  this  country,  and 
that  this  disposition  is  only  overruled  by  the  effect  of  French  force  in 
particular  districts.  In  the  cases  of  the  property  of  such  persons  taken, 
the  court  would,  I  think,  be  at  most  inclined  to  suspend  its  judgment 
for  the  present,  under  the  authority  of  this  general  declaration,  and 
wait  till  some  more  precise  rule  was  framed  by  proper  authority,  or  till 


Ch.  9)  OCCUPATION  ;  conquest  ;  martial  law  €95 

length  of  time  and  duration  of  French  possession  furnished  a  rule 
that  might  apply  to  such  cases,  though  not  specifically  distinguished  in 
the  terms  of  the  order. 

In  the  present  case,  I  see  no  sufficient  reason  for  an  unfavorable 
hesitation  of  judgment.  The  vessel  is,  I  think,  proved  to  be  going  to 
Cadiz,  the  port  of  our  allies,  with  a  useful  cargo  on  board,  a  cargo  of 
military  stores ;  there  is  nothing  to  contradict  this  destination,  except- 
ing a  single  document,  a  paper  of  mere  form,  granted  by  the  constituted 
authorities,  as  they  are  called,  at  Montrico,  in  which  a  destination 
to  St.  Andero,  then  in  French  possession,  is  held  out.  It  is  impossible 
to  attach  much  weight  to  that,  because  such  a  paper  must  have  been 
accepted  on  board  any  vessel  sailing  from  the  port  which  this  ship 
had  quitted,  as  a  cargo  of  such  a  description  would  not  have  been 
licensed  to  depart  for  Cadiz  by  those  who  alone  had  the  authority  to 
grant  passports.  All  the  witnesses  depose  to  the  destination  to  Cadiz ; 
the  letters  on  board  are  addressed  to  persons  there,  and  the  fact  that 
this  vessel  stood  towards  the  British  privateer  for  protection,  the  mo- 
ment her  character  was  ascertained,  strengthens  the  presumption.  The 
evidence,  therefore,  of  a  destination  to  Cadiz,  strongly  preponderates; 
and,  taking  the  fact  to  be  so,  what  is  this  case,  but  that  of  subjects  of 
a  country  with  which  a  general  amity  had  been  proclaimed,  serving  the 
common  cause  of  the  allied  countries,  by  carrying  military  stores  to 
one  of  the  strongholds  occupied  on  behalf  of  that  cause,  from  a  port 
happening  to  be  subject  to  the  prevalence  of  French  arms  in  its  immedi- 
ate neighborhood.  Be  the  residence  of  the  parties  what  it  may,  (for 
it  does  not  very  distinctly  appear,)  I  can  have  no  hesitation  in  restor- 
ing property  so  employed  to  persons  manifesting  such  dispositions. 


DONALDSON  v.  THOMPSON. 

(Court  of  King's  Bench,  1808.     1  Campbell's  N.  P.  Rep.  420.) 

This  was  an  action  on  a  policy  of  insurance  on  the  American  ship 
Maryland  Mary,  at  and  from  Gibraltar  to  a  market,  with  leave  to  call 
and  land  goods  at  two  or  more  ports  in  the  Mediterranean. 

The  ship  having  landed  some  goods  at  Malta,  proceeded  from  thence 
on  the  17th  of  May,  1807,  with  the  rest  of  her  cargo  for  Smyrna,  but 
was  the  same  day  captured  by  a  Russian  privateer,  and  being  after- 
wards carried  into  Corfu,  was  there  condemned  as  lawful  prize. 
*     *     * 

The  condition  of  Corfu,  in  July,  1807,  was  described  by  a  gentle- 
man who  had  acted  there  as  English  consul.  He  stated,  that  at  that 
time,  there  was  a  Russian  garrison  in  Corfu,  and  the  Russians  had 
about  6,000  men  in  the  different  islands  of  the  republic ;  -that  they  had 
made  Corfu  a  military  station  for  four  or  five  years,  and  that  they 
continued  in  possession  of  it  till  the  peace  of  Tilsit,  when  they  deliv- 


696  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

ered  it  up  to  Bonaparte;  but  that,  previously  to  that  event,  the  flag 
of  the  Ionian  Republic  flew  from  the  forts  in  the  island,  there  was  a 
port  admiral  appointed  by  the  Ionian  Republic,  a  consul  from  the 
Sublime  Porte  resided  at  Corfu,  and  the  witness  was  recognised  as 
English  consul  by  the  prince  and  senate  of  the  Ionian  Republic,  who 
continued  in  their  functions  till  the  republican  government  was  dis- 
solved by  the  French. 

Lord  ElIvEnborough.^  *  *  *  Under  these  circumstances,  the 
Russians  must  be  considered  as  visitors  in  Corfu,  and  not  as  sover- 
eigns. While  a  government  subsists  as  this  did,  we  cannot  look  to  the 
degree  in  which  it  might  be  overawed  by  a  foreign  force.     *     *     * 

Verdict  for  the  plaintiff. 

In  the  ensuing  term.  Park  applied  to  the  court  to  set  aside  this  ver- 
dict. *  *  *  A  rule  nisi  was  reluctantly  granted;  but,  cause  being 
shewn,  it  was  discharged. 

Lord  Ellenborough.  It  is  impossible  to  say  that  the  government 
of  the  Ionian  Republic  was  superseded,  at  a  time  when  its  institutions 
subsisted,  and  its  supremacy  was  recognised.  How,  then,  was  Corfu 
a  co-belligerent?  Only  because  it  endured  a  hostile  aggression.  Will 
any  one  contend  that  a  government  which  is  obliged  to  yield  in  any 
quarter  to  a  superior  force,  becomes  a  co-belligerent  with  the  power 
to  which  it  yields?     *     *     * 


THE  GERASIMO. 
(Privy  Council,  1857.    11  Moore,  P.  C.  88.) 

A  ship  under  Wallachian  colors,  with  a  cargo  of  corn  belonging  to 
owners  residing  at  Galatz,  in  Moldavia,  was  seized  for  breach  of  the 
Black  Sea  blockade,  when  coming  out  of  the  Sulina  moi^th  of  the 
Danube,  then  in  a  state  of  blockade.  At  the  time  of  the  shipment  of 
the  cargo  the  Russians  held  possession  of  Moldavia  and  Wallachia,  but 
such  holding  was  with  the  express  intention  of  not  changing  the  na- 
tional character,  or  incorporating  that  country  with  Russia.  From 
the  decree  of  condemnation  in  the  High  Court  of  Admiralty  an  appeal 
was  taken  to  the  Privy  Council." 
The  Right  Hon.  T.  Pemberton  Leigh.»  *  *  * 
Upon  the  present  appeal  the  first  question  is,  whether  the  owners  of 
the  cargo,  in  regard  to  this  claim,  are  to  be  considered  as  alien  enemies ; 
and  for  this  purpose  it  will  be  necessary  to  examine  carefully  both  the 
principles  of  law  which  are  to  govern  the  case,  and  the  nature  of  the 
possession  which  the  Russians  held  of  Moldavia  at  the  time  of  this 
shipment. 

1  The  statement  of  facts  is  abridged  and  parts  of  the  opinions  are  omitted. 

2  Short  statement  substituted  for  that  of  the  report. 

3  Only  part  of  the  opinion  of  the  learned  judge  is  given. 


Ch.  9)  OCCUPATION  ;  conquest  ;  martial  law  697 

Upon  the  general  principles  of  law  applicable  to  this  subject  there 
■can  be  no  dispute.  The  national  character  of  a  trader  is  to  be  decided 
for  the  purposes  of  the  trade,  by  the  national  character  of  the  place 
in  which  it  is  carried  on.  If  a  war  breaks  out,  a  foreign  merchant  car- 
rying on  trade  in  a  belligerent  country  has  a  reasonable  time  allowed 
him  for  transferring  himself  and  his  property  to  another  country.  If 
he  does  not  avail  himself  of  the  opportunity,  he  is  to  be  treated,  for 
the  purposes  of  the  trade,  as  a  subject  of  the  power  under  whose  do- 
minion he  carries  it  on,  and,  of  course,  as  an  enemy  of  those  with 
whom  that  power  is  at  war.  Nothing  can  be  more  just  than  this  prin- 
ciple; but  the  whole  foundation  of  it  is,  that  the  country  in  which  the 
merchant  trades  is  enemy's  country. 

Now  the  question  is,  what  are  the  circumstances  necessary  to  con- 
vert friendly  or  neutral  territory  into  enemy's  territory?  For  this 
purpose,  is  it  sufficient  that  the  territory  in  question  should  be  occu- 
pied by  a  hostile  force,  and  subjected,  during  its  occupation,  to  the  con- 
trol of  the  hostile  power,  so  far  as  such  power  may  think  fit  to  exer- 
cise control ;  or  is  it  necessary  that,  either  by  cession  or  conquest,  or 
some  other  means,  it  should,  either  permanently  or  temporarily,  be 
incorporated  with,  and  form  part  of,  the  dominions  of  the  invader  at 
the  time  when  the  question  of  national  character  arises? 

It  appears  to  their  lordships  that  the  first  proposition  cannot  be  main- 
tained. It  is  impossible  for  any  judge,  however  able  and  learned,  to 
have  always  present  to  his  mind  all  the  nice  distinctions  by  which  gen- 
eral rules  are  restricted ;  and  their  lordships  are  inclined  to  think 
that  if  the  authorities  which  were  cited  and  so  ably  commented  upon 
at  this  bar  had  been  laid  before  the  judge  of  the  court  below,  he  would, 
perhaps,  have  qualified  in  some  degree  the  doctrine  attributed  to  him 
in  the  judgment  to  which  we  have  referred. 

With  respect  to  the  meaning  of  the  term  "dominions  of  the  enemy," 
and  what  is  necessary  to  constitute  dominion.  Lord  Stowell  has  in 
several  cases  expressed  his  opinion.  In  the  case  of  The  Fama,  5  Rob. 
115,  he  lays  it  down  that  in  order  to  complete  the  right  of  property, 
there  must  be  both  right  to  the  thing  and  possession  of  it;  both  jus 
ad  rem  and  jus  in  re.  "This,"  he  observes,  "is  the  general  law  of 
property,  and  applies,  I  conceive,  no  less  to  the  right  of  territory  than 
to  other  rights.  Even  in  newly  discovered  countries,  when  a  title  is 
meant  to  be  established  for  the  first  time,  some  act  of  possession  is 
usually  done  and  proclaimed  as  a  notification  of  the  fact.  In  transfer, 
surely,  when  the  former  rights  of  others  are  to  be  superseded  and  ex- 
tinguished, it  cannot  be  less  necessary  that  such  a  change  should  be 
indicated  by  some  public  acts,  that  all  who  are  deeply  interested  in  the 
€vent,  as  the  inhabitants  of  such  settlements,  may  be  informed  under 
whose  dominion  and  under  what  laws  they  are  to  live." 

The  importance  of  this  doctrine  will  appear  when  the  facts  with 
respect  to  the  occupation  of  the  principalities  come  to  be  examined. 
That  the  national  character  of  a  place  is  not  changed  by  the  mere  cir- 


698  RIGHTS  AND   DUTIES  OF   NATIONS  IN  TIME   OP  WAR         (Part  3 

cumstance  that  i{  is  in  the  possession  and  under  the  control  of  a  hostile 
force,  is  a  principle  held  to  be  of  such  importance  that  it  was  acted 
upon  by  the  Lords  of  Appeal  in  1808,  in  the  St.  Domingo  cases  of  The 
Dart  and  Happy  Couple,  when  the  rule  operated  with  extreme  hardship. 

In  the  case  of  The  Manilla,  1  Edw.  3,  Lord  Stowell  gives  the  fol- 
lowing account  of  those  decisions :  "Several  parts  of  it  (the  island 
of  St.  Domingo)  had  been  in  the  actual  possession  of  insurgent  ne- 
groes, who  had  detached  them,  as  far  as  actual  occupancy  could  do, 
from  the  mother  country  of  France  and  its  authority,  and  maintained, 
within  those  parts,  at  least,  an  independent  government  of  their  own. 
And  although  this  new  power  had  not  been  directly  and  formally  rec- 
ognized by  any  express  treaty,  the  British  government  had  shown  a 
favorable  disposition  towards  it  on  the  ground  of  its  common  opposi- 
tion to  France,  and  seemed  to  tolerate  an  intercourse  that  carried  with 
it  a  pacific  and  even  friendly  complexion.  It  was  contended,  there- 
fore, that  St.  Domingo  could  not  be  considered  as  a  colony  of  the 
enemy.  The  Court  of  Appeal,  however,  decided,  though  after  long 
deliberation,  and  with  much  expressed  reluctance,  that  nothing  had 
been  declared  or  done  by  the  British  government  that  could  authorize 
a  British  tribunal  to  consider  this  island  generally,  or  parts  of  it  (not- 
withstanding a  power  hostile  to  France  had  established  itself  within 
it,  to  that  degree  of  force,  and  with  that  kind  of  allowance  from  some 
other  states),  as  being  other  than  still  a  colony,  or  parts  of  a  colony, 
of  the  enemy.  There  can  be  no  doubt  that  the  strict  principle  of  that 
decision  was  correct." 

On  the  other  hand,  when  places  in  a  friendly  country  have  been 
seized,  by,  and  are  in  possession  of  the  enemy,  the  same  doctrine 
has  been  held.  While  Spain  was  in  the  occupation  of  France,  and  at 
war  with  Great  Britain,  the  Spanish  insurrection  broke  out,  and  the 
British  government  issued  a  proclamation  that  all  hostilities  against 
Spain  should  immediately  cease.  Great  part  of  Spain,  however,  was 
still  occupied  by  the  French  troops,  and  amongst  others,  the  port  of  St. 
Andero.  A  ship  called  the  Santa  Anna  was  captured  on  a  voyage,  as 
it  was  alleged,  to  St.  Andero,  and  Lord  Stowell,  1  Edw.  182,  ob- 
served: "Under  these  public  declarations  of  the  state,  establishing 
this  general  peace  and  amity,  I  do  not  know  that  it  would  be  in  the 
power  of  the  court  to  condemn  Spanish  property,  though  belonging 
to  persons  resident  in  those  parts  of  Spain  which  are  at  the  present 
moment  under  French  control,  except  under  such  circimistances  as 
would  justify  the  confiscation  of  neutral  property." 
•  The  same  principle  has  been  acted  upon  in  the  courts  of  common 
law.  In  the  case  of  Donaldson  v.  Thompson,  1  Campb.  429,  the  Rus- 
sian troops  were  in  possession  of  Corfu  and  the  other  Ionian  Islands, 
though  the  form  of  a  republic  was  preserved,  and  it  was  contended 
that  the  islands  must  be  considered  as  substantially  part  of  the  terri- 
tory^ of  the  Russian  Empire,  if  the  Russian  power  was  there  dominant, 
and  the  supreme  authority  was  in  the  Russian  commander;   or,  if  not, 


Ch.  9)  OCCUPATION ;  conquest  ;  martial  law  699 

that  the  republic  must  be  considered  as  a  co-belligerent  with  Russia 
against  the  Porte,  since  the  emperor  of  Russia  derived  the  same  advan- 
tages, in  a  military  point  of  view,  from  this  occupation  of  the  islands 
as  if  he  had  seized  it  hostilely,  or  tlie  Ionian  Republic  had  been  his 
ally  in  the  war  he  was  carrying  on.  Both  these  propositions,  how- 
ever, were  repudiated  by  Lord  EHenborough;  and  afterwards,  on  a 
motion  to  set  aside  the  verdict  by  the  Court  of  King's  Bench,  Lord 
Ellenborough  observed:  "Will  any  one  contend  that  a  government 
which  is  obliged  to  yield  in  any  quarter  to  a  superior  force  becomes 
a  co-belligerent  with  the  power  to  which  it  yields?  It  may  as  well  be 
contended  that  neutral  and  belligerent  mean  the  same  thing."  The 
same  doctrine  was  afterwards  laid  down  by  the  Court  of  King's  Bench, 
in  Hagedorn  v.  Bell,  1  Mau.  &  Sel.  450,  in  the  case  of  a  trade  carried 
on  with  Hamburg,  which  had  been  for  several  years,  and  at  the  time 
was  in  the  military  occupation  of  the  French. 

The  distinction  between  hostile  occupation  and  possession  clothed 
with  a  legal  right  by  cession  or  conquest,  or  confirmed  by  length  of 
time,  is  recognized  by  Lord  Stowell  in  the  case  of  The  Bolletta,  1  Edw. 
171.  A  question  there  arose  whether  certain  property  belonging  to 
merchants  at  Zahte,  which  had  been  captured  by  a  British  privateer, 
was  to  be  considered  as  French  or  as  Russian  property;  that  ques- 
tion depending  upon  the  national  character  of  Zante  at  the  time  of  the 
capture.  Lord  Stowell  observes  (page  173):  "On  the  part  of  the 
crown  it  has  been  contended  that  the  possession  taken  by  the  French 
was  of  a  forcible  and  temporary  nature,  and  that  such  a  possession 
does  not  change  the  national  character  of  the  country  until  it  is  con- 
firmed by  a  formal  cession,  or  by  long  lapse  of  time.  That  may  be 
true,  when  possession  has  been  taken  by  force  of  arms  and  by  vio- 
lence ;  but  this  is  not  an  occupation  of  that  nature.  France  and  Rus- 
sia had  settled  their  differences  by  the  treaty  of-  Tilsit,  and  the  two 
countries  being  at  peace  with  each  other,  it  must  be  understood  to 
have  been  a  voluntary  surrender  of  the  territory  on  the  part  of  Rus- 
sia." On  this  ground  he  held  the  territory  to  have  become  French 
territory,  remarking  in  a  subsequent  passage  of  his  judgment  that  this 
was  a  cession  by  treaty,  and  not  a  hostile  occupation  by  force  of  arms, 
liable  to  be  lost  again  the  next  day. 

These  authorities,  with  the  other  cases  cited  at  the  bar,  seem  to  es- 
tablish the  proposition,  that  the  mere  possession  of  a  territory  by  an 
enemy's  force  does  not  of  itself  necessarily  convert  the  territory 
so    occupied    into    hostile    territory,    or    its    inhabitants    into    ene- 


mies. 


*     *     * 


The  ground  now  suggested  is  that  the  Gerasimo  was  guilty  of  a 
breach  of  blockade  in  coming  out  of  the  Danube  when  the  mouths  of 
that  river  were  in  a  state  of  notified  blockade.  It  is  singular  that  if 
this  were  the  ground  of  capture,  no  notice  whatever  of  the  blockade 
should  have  been  contained  in  the  affidavit  originally  prepared  for  Cap- 


700  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

tain  Powell  to  swear  when  the  seizure  was  made,  and  the  facts  recent ; 
that  notice  of  it  should  be  introduced  for  the  first  time  in  the  affidavit 
made  by  him  on  the  30th  of  August,  1855 ;  and  that  even  in  that  late 
affidavit  it  is  not  stated  that  breach  of  blockade  was  the  cause  of 
seizure.  There  is  no  doubt,  however,  that  breach  of  blockade,  whether 
it  was  the  cause  of  seizure  or  not,  may  be  used  as  ground  of  condem- 
nation, if  the  circumstances  of  the  case  bring  it  within  the  law. 

What,  then,  were  the  circumstances?  In  the  summer  of  1854,  the 
Russian  forces  in  the  Turkish  territories  were  straitened  for  provi- 
sions. The  allied  fleets  desired  to  prevent  the  importation  of  provi- 
sions up  the  Danube,  and  with  that  view  the  two  admirals  in  com- 
mand of  the  English  and  French  fleets  issued  a  proclamation,  dated 
the  2d  of  June,  1854,  in  which  they  declared,  to  all  whom  it  might  con- 
cern, that  they  had  established  an  effective  blockade  of  the  Danube, 
in  order  to  stop  all  transport  of  provisions  to  the  Russian  armies ;  they 
declared  that  this  blockade  included  all  those  mouths  of  the  Danube 
which  communicate  with  the  Black  Sea,  and  they  apprized  all  vessels 
of  every  nation  that  they  will  not  be  able  to  enter  the  river  till  further 
orders  (qu'ils  ne  pourront  entrer  dans  ce  fleuve  jusqu'a  nouvel  ordre). 

On  the  26th  of  June,  the  Russians  forbade  all  export  of  cereals 
after  the  2d'  of  July.  Any  exportation  of  cereals,  therefore,  was  in 
furtherance  of  the  objects  of  the  allies,  and  to  the  prejudice  of  the 
Russians.  Could  a  Moldavian  merchant  imagine,  if  he  had  heard  of 
this  blockade,  that  he  was  to  be  liable  to  capture  by  the  allies  for  ex- 
porting provisions,  when  the  whole  purpose  of  the  blockade  was  de- 
clared to  be  to  prevent  their  import  ? 

But,  by  the  rules  of  law,  a  ship  which  has  entered  a  blockaded  port 
before  the  blockade,  is  entitled  to  come  out  again ;  and  if  she  has  a 
cargo  taken  on  board  before  notice  of  the  blockade,  she  is  entitled  to 
bring  it  out.  The  blockade  of  a  port  is  prima  facie  notice  of  the  exist- 
ence of  the  blockade  to  all  who  are  within  it,  because  the  inhabitants 
who  see  the  blockading  ships  off  their  coast  cannot  be  well  ignorant  of 
the  blockade.  But  this  was  no  blockade  of  the  port  of  Galatz,  but  a 
blockade  of  the  mouths  of  the  Danube,  Galatz  lying  on  its  banks  up 
the  river,  at  a  distance  of  150  miles  from  its  mouth. 

In  this  case  the  ship  had  entered  the  river  before  the  blockade ;  the 
cargo  was  taken  on  board  on  the  30th  of  June ;  and  the  ship  must  have 
sailed  on  or  before  the  2d  of  July;  otherwise  she  would  have  been 
detained  by  the  Russians.  If  she  had  no  notice  of  the  blockade,  she- 
was,  on  that  general  ground,  entitled  to  bring  out  her  cargo ;  if  she 
had  notice,  she  never  could  suppose  that,  according  to  the  notification, 
she  could  be  liable  to  capture ;  but  if  the  case  had  been  open  to  any 
suspicion,  though,  in  fact,  there  is  none,  no  weight  could  be  given  to 
such  suspicion,  when  the  claimant  has  been  deprived,  by  the  wrongful 
act  of  the  captors,  of  the  opportunity  of  affording  the  explanations 
which  the  rules  of  law  were  intended  to  secure  to  him. 


Ch.  9)  OCCUPATION  ;  conquest  ;  martial  law  701 

Of  the  law  applicable  to  the  case,  as  it  appears  to  then-  lordships, 
they  cannot  express  their  opinion  better  than  in  the  language  used  by 
the  learned  judge  of  the  court  below,  in  the  beginning  of  his  judgment 
on  the  hearing  before  him.  He  says :  "On  the  part  of  the  claimants, 
a  very  long  argument  was  addressed  to  the  court,  impugning  the  con- 
duct of  the  captors,  and  charging  them  with  having  improperly  brought 
the  vessel  to  Constantinople.  It  has  been  further  stated  that  there 
being  no  means  of  examining  witnesses  at  Constantinople,  great  un- 
necessary delay  had  occurred,  and  that  the  captors  were  responsible 
for  such  delay  and  all  the  consequences.  The  court  is  not  disposed  to 
deny  the  truth  and  justice  of  the  principle  contended  for;  on  the  con- 
trary, I  am  clearly  of  the  opinion,  that  if  a  delay  in  bringing  to  adju- 
dication, and  the  non-examination  of  witnesses,  arose,  though  it  may 
be  almost  impossible  for  the  government  of  the  belligerent  nation  to 
prevent  such  occurrence,  still  that  neutrals  ought  to  be  indemnified  if 
injustice  hasbeen  done  them.  The  captors  in  the  first  instance,  though 
they  may  be  perfectly  blameless,  are  responsible  to  the  neutrals,  and 
they  must  look  to  their  own  government  for  redress,  if  they  have  been 
compelled  to  make  good  any  injury  sustained  by  neutrals,  in  conse- 
quence of  their  fulfilling  the  commands  which  they  dare  not  disobey. 
In  many  cases  the  captains  of  some  of  her  Majesty's  cruisers  may 
have  a  discretion  to  release  at  once,  but  this  may  not  be  so  in  case  of 
a  blockade,  when  special  orders  may  have  been  given  to  capture  and 
detain." 

In  this  statement  of  the  principles  of  law,  their  lordships  cordially 
concur.  What  claim  the  captor,  Captain  Powell,  may  have  upon  her 
Majesty's  government,  it  is  not  their  duty  to  judge,  nor  have  they  any 
means  of  forming  an  opinion.*  But  as  regards  the  claimants,  his  con- 
duct appears  to  be  without  any  excuse,  and  their  lordships  have  no 
hesitation  in  advising  restitution  of  the  cargo,  with  cost  and  damages 
against  the  captors.     *     *     * 


WADEER  V.  THE  EAST  INDIA  CO. 

(Rolls  Court,  1860.     7  Jurist,  N.  S.,  350.) 

R.  Palmer,  O.  C.  Schomberg,  and  Leith,  for  the  plaintiff. 

The  notes  were  not  part  of  the  jura  regalia,  but  belonged  to  the 
plaintiff  as  private  property.  The  right  of  the  conqueror  to  confiscate 
the  property  of  the  conquered  did  not  extend  to  debts  secured  by  the 

*  A  commander  of  a  ship  of  war  of  the  United  States,  in  obeying  his  in- 
structions from  the  President  of  the  United  States,  acts  at  his  peril.  If  these 
instructions  are  not  strictly  warranted  by  law,  he  is  answerable  in  damages 
to  any  persons  injured  by  their  execution.  Little  et  al.  v.  Barreme  et  al..  2 
Cranch.  170,  2  L.  Ed.  243  (1804)  per  Marshall,  C.  J.  This  case  is  distingnisliod 
in  Garland  v.  Davis,  4  How.  131,  149,  11  L.  Ed.  907  (1846),  where  it  is  held 
that  public  agents  are  not  liable  on  contracts  made  for  principals  where  no 
misfeasance  is  shown. 


702  RIGHTS  AND   DUTIES  OF   NATIONS  IN  TIME  OF  WAR         (Part  S 

conquering  power,  and  these  notes  were  secured  by  the  public  faith 
of  the  India  government.  "In  reprisals,  we  seize  on  the  property  of 
the  subject  just  as  we  would  on  that  of  the  state  or  sovereign.  Every- 
thing that  belongs  to  the  nation  is  subject  to  reprisals  whenever  it  can 
be  seized,  provided  it  be  not  a  deposit  intrusted  to  the  public  faith." 
Vattel,  book  2,  c.  18,  §  344;  Wolff  v.  Oxholm,  6  Mau.  &  S.  92.  The 
fact  that  these  notes  were  taken,  as  to  one,  to  the  rajah,  his  executors 
and  administrators,  and  as  to  the  other,  in  the  name  of  a  stranger, 
shewed  that  they  were  private  and  not  public  property.  The  mere 
declaration  of  war,  and  the  possession  of  the  person  of  the  prisoner, 
did  not  amount  to  a  confiscation  of  his  private  property;  and  the  in- 
dorsement made  by  one  of  the  defendants'  agents  on  the  packet  con- 
taining one  of  the  notes  recognised  the  continued  right  of  the  ex-rajah. 
Wheaton's  Inter.  Law,  part  4,  c.  1,  p.  371 ;  3  Phillim.  Inter.  Law,  682. 
The  plaintiff's  right  to  sue  was  not  barred  by  lapse  of  time,  for  the  regu- 
lations provided  that  the  time  within  which  a  person  might  sue  was 
twelve  years  from  the  acquisition  of  a  right,  unless  by  reason  of  minor- 
ity, or  other  good  and  sufficient  cause,  he  was  precluded  from  obtain- 
mg  redress.  The  plaintiff  until  1852  was  a  prisoner,  and  the  Court 
would  give  a  liberal  construction  to  the  regulations.  Dyce  Sombre 
v.  The  East  India  Company,  10  Moo.  P.  C.  232 ;  Troup  v.  The  East 
India  Company,  7  Moo.  Ind.  App.  Cas.  104;  Williams  v.  Jones,  13 
East,  439.  They  cited  also  McLeod  v.  The  Bank  of  Bengal,  5  Moo.  P. 
C.  1 ;  The  Bank  of  Bengal  v.  Fagan,  Id.  27 ;  Gosain  v.  Gosain,  6  Moo. 
P.  C.  53 ;  M'Naghten's  Principles  of  Hindoo  Law,  22,  33 ;  and  Stat. 
21  Jac.  I,  c.  16,  §  7. 

The  Attorney  General  (Sir  R.  Bethell),  Lloyd,  Q.  C,  Forsyth,  Q.  C, 
and  Melvill,  for  the  Secretary  of  State  for  India.  This  suit  was  in- 
stituted by  a  dethroned  prince,  while  a  prisoner  of  war,  against  his 
captor,  a  sovereign  government,  in  his  own  courts,  to  recover  property 
which  had  been  confiscated  by  that  sovereign  power;  but  it  was  a 
principle  of  law  that  acts  done  by  a  sovereign  power  could  not  be  com- 
plained of  in  the  courts  of  that  sovereign,  and  its  acts  could  not  be 
examined  by  the  court.  It  was  true  that  the  defendants  filled  a  double 
character,  but  the  notes  which  the  plaintiff  sought  to  recover  were  se- 
curities for  a  loan  raised  for  political  purposes,  and  the  revenues  of 
the  state  were  charged  with  the  payment,  but  they  were  no  evidence  of 
a  private  debt  distinct  from  that  of  a  political  debt.  The  notes  did  not 
constitute  a  private  debt;  and  no  jurist  had  ever  supposed  that  the 
private  property  of  a  conquered  sovereign  was  to  be  respected.  The 
words  written  upon  the  envelope  which  contained  one  of  the  notes 
merely  stated  the  contents ;  they  acknowledged  no  right,  and  did  not 
affect  the  property.  They  cited  The  Secretary  of  State  for  India  v. 
Kamachee  Boye  Sahaba,  7  Moo.  Ind.  App.  Cas.  476 ;  The  Nabob  of  the 
Carnatic  v.  The  East  India  Company,  1  Ves,  Jun..371,  3  Bro.  C.  C. 
292;  Elphinstone  v.  Bedreechund,  1  Knapp's  P.  C.  316;  The  Advocate 
General  of  Bombay  v.  Amerchund,  Id.  329,  note;    3  Phillim.  Inter. 


Ch.  9)  OCCUPATION ;  conquest  ;  martial  law  703 

Law,  721 ;  The  Attorney  General  v.  Weedon,  Parker,  207 ;  Barclay  v. 
Russell,  3  Ves.  424;  Spanenburg  v.  Bannatyne,  1  B.  &  P.  163 ;  1  Hargr. 
Collatanea  Juridica,  129;  The  Mayor  of  Lyons  v.  The  East  India  Com- 
pany, 1  Moo.  P.  C.  175;  The  Duke  of  Brunswick  v.  The  King  of  Han- 
over, 6  Beav.  1,  57,  2  ,H.  L.  C.  1 ;   and  3  Mill's  British  India,  345. 

R.  Palmer,  in  reply. 

Dec.  8. — Sir  J.  Romilly,  M.  R.^  This  is  a  suit  instituted  by  the 
ex-Rajah  of  Coorg  against  the  East  India  Company  to  recover  two 
promissory  notes,  together  with  the  interest  secured  upon  them.  One 
of  them  is  a  note  to  secure  the  sum  of  653,940  Madras  rupees,  with 
interest  at  £6.  per  cent.,  and  the  other  to  secure  203,900  sicca  rupees, 
with  interest  at  £4.  per  cent.  The  circumstances  connected  with  the 
origin  of  these  notes  were  these:  Rajah  Veer,  the  Rajah  of  Coorg, 
had  advanced  money  to  the  East  India  government,  in  respect  of  which 
he  was  made  a  creditor,  holding  the  notes  of  the  government,  issued 
under  the  authority  and  by  the  sanction  of  the  government.  *  *  * 
At  the  beginning  of  the  year  1834  the  plaintiff  was  Rajah  of  Coorg, 
and  was  a  creditor  of  the  East  India  Company  for  the  amounts  se- 
cured by  both  of  these  notes,  both  of  which  were  then  in  his  posses- 
sion or  power ;  and  whether  his  possession  of  or  title  to  them  was  at- 
tributable to  his  royal  character  as  Rajah  of  Coorg,  or  to  his  private 
character,  is  a  matter  of  material  importance  in  the  determination  of 
this  question,  to  which  I  shall  presently  address  myself. 

Early  in  the  year  1834  differences  arose  between  the  East  India 
government  and  the  plaintiff;  the  government  made  war  against  the 
plaintiff,  and  in  April,  1834,  Coorg  was  taken;  the  territories  of  the 
rajah  were  annexed  to  the  British  territory  in  India;  the  plaintiff  him- 
self was  made  a  prisoner,  and  his  property  was  divided  as  booty  of 
war.  The  property,  however,  which  was  divided,  did  not  include  ei- 
ther of  the  notes,  as  appears  from  an  inventory  of  such  boot}^  which 
was  made  out  and  proved  in  the  cause.  The  ex-rajah  practically  re- 
mained a  prisoner  during  the  remainder  of  his  life,  although  he  was 
permitted  to  visit  this  country  in  1852,  and  in  1854  this  bill  was  filed. 
The  defence  is,  that  this  court  has  no  jurisdiction  to  entertain  the 
question ;  that  this  is  a  case  of  the  property  of  a  captive  prince  taken 
by  a  hostile  power  in  war,  and  while  in  the  exercise  of  its  political 
power,  and  in  its  character  of  a  sovereign  power.  If  this  be  a  correct 
description,  such  a  transaction  undoubtedly  is  not  cognisable  by  any 
court  of  justice.  The  East  India  Company  obtained  possession  of  the 
two  notes  in  the  following  manner :  The  note  for  203,900  sicca  rupees 
had  been  left  by  the  plaintiff  in  the  hands  of  Mr.  Cassamajer,  the  res- 
ident at  Mysore,  of  which  Coorg  was  a  dependency;  and  in  January, 
1836,  Captain  Chalmers,  the  superintendent  of  Mysore,  took  possession 
of  this  note,  giving  a  receipt  for  it  to  the  resident  at  Mysore.    It  was 

«  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


704 


RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 


then  sealed  up  in  a  cover,  which  was  fastened  by  the  official  seal  of 
the  commissioner  of  the  Mysore  government,  and  it  was  placed  in  his 
treasury,  where  it  has  since  remained,  and  no  interest  has  been  paid 
upon  it  since  1834.  The  other  note  was  in  1834  in  the  hands  of  Messrs. 
Binney  &  Co.  as  the  agents  of  the  plaintiff,  and  after  some  correspond- 
ence, and  considerable  delay,  it  was  in  1840  delivered  up  to  the  de- 
fendants on  giving  an  indemnity  to  Messrs.  Binney  &  Co.,  and  by  the 
defendants  it  was  deposited  in  the  government  treasury,  and  no  in- 
terest has  been  paid  upon  it  since  1834.  I  think  that  the  acts  proved 
establish  that  these  notes  were  taken  possession  of  by  and  on  the  part 
of  the  defendants.     *     *     * 

The  principal  difficulty  that  I  have  felt  in  this  case  has  arisen  from 
the  double  character  filled  by  the  defendants  the  East  India  Company. 
They  were  both  a  company  of  merchants  trading  to  the  East  Indies, 
and  a  sovereign  power,  and,  in  so  far  as  the  Rajah  of  Coorg  was  con- 
cerned, a  sovereign  state,  wholly  independent,  and  at  war  with  him. 
From  hence  it  follows  that  the  acts  done  by  the  defendants  are  fre- 
quently of  an  ambiguous  character,  and  that  it  becomes  extremely  dif- 
ficult to  ascertain  whether  any  particular  act  is  to  be  attributed  to  the 
exercise  of  the  political  power  of  a  sovereign  state,  or  to  a  company  of 
merchants  trading  to  the  East  Indies.  If  this  case  can  be  fairly  rep- 
resented to  be  an  instance  of  a  foreign  power  taking  prisoner  an  en- 
emy, by  means  whereof,  and  while  so  holding  him,  obtaining  posses- 
sion of  documents  which  estabhsh  his  right  to  recover  his  debt  due  from 
another  to  him  in  his  private  capacity,  then  I  am  clear  that  the  plain- 
tiff is  entitled  to  relief,  and  that  the  circumstance,  that  the  defendants 
constitute  both  the  conquering  power  and  the  debtor,  does  not  in  any 
respect  vary  the«question.  But  if  the  notes  were  the  property  of  the 
plaintiff  in  his  character  of  rajah,  and  if  they  were  taken  possession  of 
by  the  defendants  in  the  exercise  of  their  sovereign  and  political  power, 
then  I  am  equally  clear  that  this  court  cannot  interfere.  On  the  first 
point,  the  evidence  satisfies  me  that  these  notes  belonged  to  the  plaintiff 
in  his  character  of  Rajah  of  Coorg,  and  not  in  any  private  character 
apart  from  such  office.  *  *  *  Now,  these  circumstances,  in  my 
opinion,  amount  to  a  taking  possession  of  the  notes  on  the  part  of  the 
defendants  in  the  exercise  of  their  sovereign  and  political  power.  It  is 
clear  that,  in  this  act  of  taking  possession  of  the  notes,  it  was  in  no 
mercantile  character  that  they  could  have  taken  or  retained  them ;  and 
if  this  is  so,  as  in  my  opinion  it  is,  then  the  authorities  to  which  I  have 
been  referred,  and  which  I  have  carefully  examined,  from  Vattel  and 
various  other  sources,  particularly  those  in  the  Duke  of  Newcastle's  an- 
swer to  the  Prussian  Government  on  the  seizure  of  the  Silesian  debt 
due  to  British  subjects,  do  not  apply  to  this  case,  but  it  falls  within  the 
rule  laid  down,  and  the  cases  cited,  in  the  case  of  The  Secretary  of 
State  for  India  v.  Kamachee  Boye  Sahaba,  7  Moo.  Ind.  App.  Cas.  476. 

I  am  of  opinion  that  the  taking  possession  of  the  notes  by  the  East 


Ch.  9)  OCCUPATION ;  conquest  ;  martial  law  705 

India  government  were  acts  done  in  the  exercise  of  their  sovereign 
power,  and  that  those  acts  are  not  subject  to  the  control  of  this  court. 
I  must,  therefore,  direct  the  bill  to  be  dismissed,  but  I  shall  do  so  with- 
out costs. 


WADE  V.  BARNWELL. 
(Superior  Court  of  South  Carolina,  Charleston  District,  1799.    2  Bay,  229.) 

Case  on  a  special  verdict  found  at  Beaufort.  This  verdict  stated, 
substantially,  that  sundry  negroes  therein  named,  which  formerly  be- 
longed to  a  Mr.  Knox,  a  British  subject  in  Georgia,  had  been  confis- 
cated during  the  Revolutionary  War,  and  sold ;  but  that  some  time  in 
the  year  1778,  when  the  British  repossessed  themselves  of  Georgia, 
and  overrun  that  country,  Knox,  the  original  owner  of  the  negroes,  re- 
gained possession  of  them,  and  when  at  the  close  of  the  war,  the  Brit- 
ish finally  evacuated  that  state,  took  them  off  with  him  to  Jamaica, 
where  he  kept  them  several  years,  and  then  sent  them  into  South  Caro- 
lina for  sale,  when  the  defendant  John  Barnwell,  became  the  purchaser: 
whereupon  Wade,  who  claimed  under  the  sale  by  virtue  of  the  con- 
fiscation act  in  Georgia,  commenced  his  action  of  trover  for  recovery 
of  them,  as  being  his  property.  The  verdict  then  submitted  the  question 
to  the  court,  whether  from  the  foregoing  circumstances,  the  property 
of  the  negroes  in  question  was  in  Wade,  who  claimed  under  the  act  of 
the  state  of  Georgia  or  in  the  defendant,  Barnwell,  who  held  under 
the  original  proprietor? 

Mr.  Holmes,  for  the  plaintiff,  insisted  that  the  property  of  an  enemy 
found  in  the  state  of  Georgia  during  the  war,  after  the  Declaration  of 
Independence,  by  the  jus  belli  became  liable  to  seizure  and  confiscation ; 
and  that  the  supreme  authority  of  the  state  had  by  an  act  declared  the 
same  to  be  confiscated,  and  directed  a  sale  for  the  use  and  benefit  of 
the  state,  at  which  sale,  Mr.  Wade,  or  those  under  whom  he  claimed, 
were  bona  fide  purchasers.  A  higher  title  than  this,  he  said,  could  not 
well  be  submitted  to  the  consideration  of  a  court  of  justice. 

Mr.  Desaussure,  on  the  part  of  the  defendant,  argued  that  the  con- 
test between  Great  Britain  and  America  was  at  first  a  dispute  between 
two  great  parties  of  the  same  empire,  contending  for  rights  and  priv- 
ileges on  one  hand,  and  for  the  supreme  and  uncontrolled  power  and 
authority  of  the  mother  country  on  the  other.  That  in  such  a  contest, 
the  right  of  property  remained  in  a  great  measure  undecided,  till  the 
dispute  was  ended  and  a  treaty  made,  confirming  the  rights  to  each  of 
the  great  parties  so  engaged ;  and  this  ought  to  have  been  the  true  pol- 
icy both  of  Great  Britain  and  America.  But  admitting  that  the  same 
rules  which  governed  foreign  nations  at  war,  were  applicable  to  this 
country  after  the  declaration  of  independence,  it  is  evident  that  on 
the  retaking  of  Georgia  by  the  British,  all  the  property  taken  or  ac- 
ScOTT  Int.Law — i5 


706  EIGHTS  AND   DUTIES  OF  NATIONS  IN  TIME  OP  WAR         (Part  3 

quired  by  the  Americans  from  the  other  party,  and  retaken  and  re- 
possessed again  by  the  original  owners,  flagrante  bello,  reverted  abso- 
lutely and  unconditionally,  in  the  original  proprietors  or  owners,  by 
the  jus  postliminium,  a  well-known  and  acknowledged  part  of  the  law 
of  nations,  which  is  paramount  to  all  municipal  regulations.  Vattel,  c. 
14,  §  204 ;  Gro.  book  3,  c.  9.  By  this  law,  things  taken  by  the  enemy, 
and  regained  by  the  former  owner,  are  restored  to  their  original  state 
and  condition,  as  fully  and  completely,  as  if  they  had  never  been  taken. 
Upon  these  principles,  then,  he  contended,  that  upon  the  repossession  of 
the  state  of  Georgia  by  the  British,  in  the  year  1778,  after  the  Ameri- 
cans had  been  nearly  all  driven  out  of  the  country,  Mr.  Knox  being 
then  a  British  subject,  and  regaining  possession  of  his  negroes,  acquired 
an  absolute  right  to  them,  and  his  title  was  as  fully  confirmed  to  him  as 
if  they  had  never  gone  out  of  his  possession.  That  the  act  of  Georgia, 
and  sale  during  the  heat  of  the  contest,  and  before  the  treaty  of  peace, 
did  not  ivlter  that  part  of  the  law  of  nations,  which  gave  Mr.  Knox  this 
right  of  repossessing  himself  of  his  property  wherever  he  could  find 
it  within  the  limits  of  Georgia,  after  the  British  got  possession  of  the 
country.  It  was  a  risk  which  the  purchaser  ran,  and  he  must  now  take 
the  consequences  of  it,  or  apply  to  the  Legislature  of  Georgia  for  re- 
dress. 

The  judges,  after  duly  considering  the  circumstances  of  the  case 
submitted  to  them  by  this  special  verdict,  were  unanimously  of  opin- 
ion, that  the  judgment  should  be  rendered  up  for  the  defendant  John 
Barnwell.  The  jus  postliminium,  upon  which  this  case  turns,  and  by 
virtue  of  which,  things  taken  by  an  enemy  are  to  be  restored  to  their 
former  state  or  owners,  when  a  country  comes  again  under  the  power 
of  the  nation  to  which  it  formerly  belonged,  is  a  very  important  branch 
of  the  law  of  nations,  and  is  founded  on  the  obligation  which  every 
sovereign  or  state  is  under,  to  protect  the  persons  and  goods  of  its  sub- 
jects or  citizens  against  an  enemy;  should  any  fortunate  event  bring 
it  again  under  such  sovereign  power,  he  is  bound  to  restore  them  to 
their  former  state,  and  to  give  back  the  efifects  to  the  owners  to  whom 
they  originally  belonged,  and  to  settle  every  thing  as  they  were  before 
they  fell  into  the  enemies  hands.  Hence  it  is,  therefore,  that  a  pri- 
vate individual  acquires  a  right  to  every  thing  which  belonged  to  him 
before  they  were  taken  by  an  enemy,  as  soon  as  a  country  comes  again 
under  the  power  or  dominion  of  the  sovereign  to  whom  he  is  a  sub- 
ject, or  owes  allegiance.  Gro.  book  3,  c.  9;  Vattel,  lib.  3,  c.  14.  This 
postliminary  right  is  of  very  ancient  origin,  and  seems  to  have  been 
respected  by  all  nations',  from  the  days  of  the  ancient  Greeks  and  Ro- 
mans, down  to  the  present  day.  It  would  ill  become  a  young  people, 
therefore,  just  taking  their  rank  and  station  among  the  nations  of  the 
world,  to  disregard  so  important  a  principle  of  the  national  law.  And 
however  we  may  be  disposed  to  respect  the  acts  and  proceedings  of 
our  sister  states,  as  municipal  regulations,  yet  whenever  they  come  in 

Scott  Int.Law 


Ch.  9)  OCCUPATION ;  conquest  ;  martial  law  707 

contact  with,  or  in  opposition  to,  the  governing  code  of  nations,  we  are 
bound  to  say  they  must  give  way. 

Let  judgment  be  entered  for  defendant. 

Present,  GrimkE,  Waties  and  Bay.« 


UNITED  STATES  v.  RICE. 

(Supreme  Court  of  the  United  States,  1819.    4  Wheat.  246,  4  L.  Ed.  562.) 

Story,  Justice,  delivered  the  opinion  of  the  court.' 
The  single  question  arising  on  the  pleadings  in  this  case  is,  whether 
goods  imported  into  Castine,  during  its  occupation  by  the  enemy,  are 
liable  to  the  duties  imposed  by  the  revenue  laws  upon  goods  imported 
into  the  United  States.  It  appears,  by  the  pleadings,  that  on  the  first 
day  of  September,  1814,  Castine  was  captured  by  the  enemy,  and  re- 
mained in  his  exclusive  possession,  under  the  command  and  control  of 
his  military  and  naval  forces,  until  after  the  ratification  of  the  treaty 
of  peace,  in  February,  1815.  During  this  period,  the  British  govern- 
ment exercised  all  civil  and  military  authority  over  the  place ;  and  es- 
tablished a  custom-house,  and  admitted  goods  to  be  imported,  according 
to  regulations  prescribed  by  itself,  and  among  others,  admitted  the  goods 
upon  which  duties  are  now  demanded.  These  goods  remained  at  Cas- 
tine until  after  it  was  evacuated  by  the  enemy,  and  upon  the  reestab- 
lishment  of  the  American  government,  the  collector  of  the  customs, 
claiming  a  right  to  American  duties  on  the  goods,  took  the  bond  in 
question  from  the  defendant,  for  the  security  of  them. 

Under  these  circumstances,  we  are  all  of  opinion,  that  the  claim  for 
duties  cannot  be  sustained.  By  the  conquest  and  military  occupation 
of  Castine,  the  enemy  acquired  that  firm  possession  which  enabled  him 
to  exercise  the  fullest  rights  of  sovereignty  over  that  place.  The  sov- 
ereignty of  the  United  States  over  the  territory  was,  of  course,  sus- 
pended, and  the  laws  of  the  United  States  could  no  longer  be  right- 
fully enforced  there,  or  be  obligatory  upon  the  inhabitants  who  re- 
mained and  submitted  to  the  conquerors.     By  the  surrender  the  in- 

6  "These  United  States  by  their  inferior  courts  have  decided  that  when  a  con- 
quered territory  is  repossessed  by  its  former  sovereign!,  private  individuals  ac- 
quire a  right  to  all  property  that  belonged  to  them  before  it  was  talien  bv  the 
conqueror.  Wade  v.  Barnewell,  2  Bay  (S.  O.)  Rep.  229  (1799)."  3  Philli- 
more's  Commentaries  on  International  Law  (1SS5)  875. 

"And  generally  the  English  Privy  Council  has  decided,  that  a  country  re- 
conquered from  an  enemy  reverts  to  the  same  state  that  it  was  in  before  its 
conquest.  The  British  inhabitants  of  a  part  of  the  French  dominions  which 
was  conquered  by  the  Dutch,  and  afterwards  re-conquered  by  the  French, 
ought  therefore,  the  Privy  Council  decided,  to  have  had,  after  the  re-conquest 
of  that  part,  the  same  protection  that  they  were  entitled  to  under  a  Treaty 
of  Commerce  of  1786 ;  and  this  Tribunal  awarded  them  compensation  in  re- 
spect of  losses  after  the  re-conquest,  incurred  by  sequestration  of  tlieir  proper- 
ty in  contravention  of  Ihat  Treaty  by  the  French  Government.  Gumbe's  Case, 
2  Knapp's  Privy  Council  Rep.,  369  (1834)."    Id.  859. 

7  The  statement  of  facts  is  omitted. 


708  RIGHTS   AND   DUTIES   OF  NATIONS   IN   TIME   OF   WAR         (Part  3 

habitants  passed  under  a  temporary  allegiance  to  the  British  govern- 
ment, and  were  bound  by  such  laws,  and  such  only,  as  it  chose  to  recog- 
nize and  impose.  From  the  nature  of  the  case,  no  other  laws  could  be 
obligatory  upon  them;  for  where  there  is  no  protection,  or  allegiance, 
or  sovereignty,  there  can  be  no  claim  to  obedience.  Castine  was  there- 
fore, during  this  period,  so  far  as  respected  our  revenue  laws,  to  be 
deemed  a  foreign  port;  and  goods  imported  into  it  by  the  inhabitants 
were  subject  to  such  duties  only  as  the  British  government  chose  to 
require.  Such  goods  were  in  no  correct  sense  imported  into  the  United 
States.  The  subsequent  evacuation  by  the  enemy,  and  resumption  of 
authority  by  the  United  States,  did  not,  and  could  not,  change  the 
character  of  the  previous  transactions. 

The  doctrines  respecting  the  jus  postliminii  are  wholly  inapplicable 
to  the  case.  The  goods  were  liable  to  American  duties,  when  imported, 
or  not  at  all.  That  they  were  not  so  liable  at  the  time  of  importation, 
is  clear  from  what  has  been  already  stated;  and  when,  upon  the  re- 
turn of  peace,  the  jurisdiction  of  the  United  States  was  reassumed,  they 
were  in  the  same  predicament  as  they  would  have  been  if  Castine  had 
been  a  foreign  territory  ceded  by  treaty  to  the  United  States,  and  the 
goods  had  been  previously  imported  there.  In  the  latter  case,  there 
would  be  no  pretence  to  say  that  American  duties  could  be  demanded ; 
and,  upon  principles  of  public  or  municipal  law,  the  cases  are  not  dis- 
tinguishable. The  authorities  cited  at  the  bar  would,  if  there  were 
any  doubt,  be  decisive  of  the  question.  But  we  think  it  too  clear  to 
require  any  aid  from  authority. 

Judgment  affirmed  with  costs.* 


FLEMING  et  al.  v.  PAGE,  Collector. 

(Supreme  Court  of  the  United  States,  1850.    9  How.  603,  13  L.  Ed.  276.) 

R)r  the  material  portion  of  Fleming  v.  Page,  see  New  Orleans  v. 
New  York  Steamship  Company,  post,  p.  714. 

8  In  United  States  v.  Hay  ward,  2  Gall.  485,  Fed.  Cas.  No.  15,336  (1815),  Mr. 
Justice  Story  held  that  Castine  was  to  be  considered  a  "foreign  port,"  with 
reference  to  the  nonimportation  acts. 


Ch.  9)  OCCUPATION  ;  conquest  ;  martial  law  709 

NEW  ORLEANS  v.  NEW  YORK  STEAMSHIP  CO. 
(Supreme  Court  of  the  United  States,  1874.    20  Wall.  387,  22  L.  Ed.  354.) 

Appeal  from  the  Circuit  Court  for  the  District  of  Louisiana;  the 
case  being  thus : 

On  the  1st  of  May,  1862,  the  army  of  the  United  States  captured 
the  city  of  New  Orleans.  It  was  held  by  military  occupation  until 
the  18th  of  March,  1866,  when  its  government  was  handed  over  to 
the  proper  city  authorities.  The  condition  of  things  which  subsisted 
before  the  rebellion,  was  then  restored.  During  the  military  occupa- 
tion it  was  governed  by  a  mayor,  a  board  of  finance,  and  a  board  of 
street  landings,  appointed  by  the  commanding  general  of  the  depart- 
ment. On  the  8th  of  June,  1865,  Hugh  Kennedy  was  thus  appointed 
mayor.  On  the  8th  of  July,  1865,  as  such  mayor,  pursuant  to  a  reso- 
lution signed  by  the  chairman  of  the  board  of  finance,  and  by  the 
chairman  of  the  board  of  street  landings,  both  boards  having  been 
appointed  in  the  same  manner  as  himself,  Kennedy  executed  to  the 
appellees  a  lease  of  certain  water-front  property  therein  described. 
The  lease  made  the  following  provisions: 

The  city  granted  to  the  company  the  right  to  inclose  and  occupy 
for  their  exclusive  use  the  demised  premises  for  the  term  of  ten  years. 
The  company  was  at  its  own  expense  to  build  a  new  wharf  in  front 
of  the  landing,  as  designated,  with  new  bulk-heads  to  retain  the  levee 
earthworks  throughout  the  whole  extent  of  the  front  assigned  to  them, 
they  furnishing  the  requisite  labor  and  materials ;  to  keep  the  struc- 
ture in  complete  order  and  repair  until  the  termination  of  the  lease, 
and  then  to  deliver  it  to  the  city  authorities  in  that  condition,  natural 
wear  and  tear  only  excepted.     *     *     * 

The  lease  was  not  to  be  transferred  without  the  city's  consent,  and, 
in  case  of  default  by  the  company  to  fulfil  its  engagements,  the  city 
had  the  right  to  annul  it.  At  the  expiration  of  the  lease  all  the  im- 
provements made  by  the  company  were  to  become  the  property  of  the 
city.  The  company  agreed  to  pay  an  annual  rent  of  $8,000,  in  monthly 
installments,  for  which  it  gave  its  promissory  notes,  one  himdred  and 
twenty  in  number. 

The  company  expended  more  than  $65,000  in  making  the  improve- 
ments specified  in  the  lease,  and  duly  paid  its  notes  as  they  matured 
down  to  the  11th  of  April,  1866,  including  the  one  then  due.  On  the 
18th  of  that  month  the  city  surveyor,  aided  by  a  number  of  laborers, 
acting  under  an  order  of  the  city  council,  approved  by  the  mayor,  de- 
stroyed the  fence  or  inclosure  erected  by  the  company.  It  had  cost 
them  $7,000.  The  company  filed  a  bill  and  supplemental  bill  whereby 
they  prayed  for  an  injunction  and  damages.  The  notes  for  rent  given 
by  the  company  and  then  unpaid  were  delivered  by  the  military  author- 
ities to  the  proper  city  authorities  when  the  government  of  the  city  was 


710  RIGHTS  AND   DUTIES  OF  NATIONS   IN  TIME   OP  WAR         (Part  3 

transferred  to  the  mayor  and  council.  Those  unpaid  when  this  litiga- 
tion was  begun  were  held  by  the  city  then  and  for  several  months  after- 
wards. They  were  tendered  to  the  company  by  a  supplemental  answer 
in  this  case  and  deposited  in  court,  where  they  still  remained.  The  note 
last  paid  matured  and  was  paid  before  the  inclosure  was  destroyed. 
The  city  had  not  tendered  back  the  money  so  paid,  nor  had  it  disclaim- 
ed the  validity  of  the  payment,  nor  had  it  tendered  back  the  amount  or 
any  part  of  it,  expended  by  the  company  in  making  the  improvements, 
nor  made  any  offer  touching  the  subject.     *     *     * 

The  following  facts  were  agreed  on  by  the  parties :  "From  the  ex- 
ecution of  the  lease  to  the  18th  of  April,  1866,  the  company  had  been 
in  peaceable  possession  of  the  demised  premises,  and  had  performed 
all  its  obligations  under  the  lease.  No  notice  was  given  by  the  city  of 
the  intended  demolition  of  the  inclosure,  and  it  was  done  early  in  the 
morning.  Under  its  charter  of  1856  the  city  had,  before  the  war, 
leased  portions  of  its  wharves  to  individuals  and  companies,  and  had, 
in  one  instance,  farmed  out  the  collection  of  levee  dues  upon  all  the 
wharves  by  sections.  The  damages  resulting  from  the  destruction  of 
the  company's  buildings,  etc.,  and  the  necessary  employment,  in  con- 
sequence of  this  destruction,  of  additional  watchmen,  amounted  to 
$8,000." 

•At  the  hearing  the  court  decreed  *  *  *  that  the  city  should  be 
enjoined  from  interfering  with  the  possession  and  enjoyment  of  the 
demised  premises  by  the  company  during  the  life  of  the  lease,  and  that 
the  company  should  recover  from  the  city  $8,000  for  damages,  and 
that  the  city  should  pay  the  costs  of  the  suit.  It  was  from  this  decree 
that  the  present  appeal  was  taken.     *     *     * 

Mr.  Justice  Swaynk  (having  stated  the  case)  delivered  the  opinion 
of  the  court.^^ 

The  questions  presented  for  our  consideration  are  questions  of  law. 
The  facts  a,ve  undisputed.  Our  remarks  will  be  confined  to  the  sev- 
eral objections  to  the  decree  taken  by  the  counsel  for  the  appel- 
lant.    *     *     * 

It  has  been  strenuously  insisted  that  the  lease  was  made  by  Kennedy 
without  authority,  was,  therefore,  void,  ab  initio,  and,  if  this  was  not 
so,  that  its  efficacy,  upon  the  principle  of  the  jus  post  liminium,  wholly 
ceased  when  the  government  of  the  city  was  surrendered  by  the  mili- 
tary authorities  of  the  United  States  to  the  mayor  and  council  elected 
under  the  city  charter. 

Although  the  city  of  New  Orleans  was  conquered  and  taken  pos- 
session of  in  a  civil  war  waged  on  the  part  of  the  United  Statfes  to 
put  down  an  insurrection  and  restore  the  supremacy  of  the  national 
government  in  the  Confederate  States,  that  government  had  the  same 
power  and  rights  in  territory  held  by  conquest  as  if  the  territory  had 

12  Part  of  the  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Ch.  9)  OCCUPATION ;  conquest  ;  martial  law  711 

belong-ed  to  a  foreign  country  and  had  been  subjugated  in  a  foreign 
war.^^  In  such  cases  the  conquering  power  has  a  right  to  displace 
the  pre-existing  authority,  and  to  assume  to  such  extent  as  it  may 
deem  proper  the  exercise  by  itself  of  all  the  powers  and  functions  of 
government.  It  may  appoint  all  the  necessary  officers  and  clothe  them 
with  designated  powers,  larger  or  smaller,  according  to  its  pleasure. 
It  may  prescribe  the  revenues  to  be  paid,  and  apply  them  to  its  own 
use  or  otherwise.  It  may  do  anything  necessary  to  strengthen  itself 
and  weaken  the  enemy.  There  is  no  limit  to  the  powers  that  may  be 
exerted  in  such  cases,  save  those  which  are  found  in  the  laws  and 
usages  of  war.  These  principles  have  the  sanction  of  all  publicists 
who  have  considered  the  subject. 

They  have  been  repeatedly  recognized  and  applied  by  this  court.^* 
In  the  case  last  cited  the  President  had,  by  proclamation,  established 
in  New  Orleans  a  provisional  court  for  the  state  of  Louisiana,  and  de- 
fined its  jurisdiction.  This  court  held  the  proclamation  a  rightful  ex- 
ercise of  the  power  of  the  executive,  the  court  valid,  and  its  decrees 
binding  upon  the  parties  brought  before  it.  In  such  cases  the  laws  of 
war  take  the  place  of  the  Constitution  and  laws  of  the  United  States 
as  applied  in  time  of  peace.  It  follows  as  a  corollary  from  these 
propositions  that  the  appointment  of  Kennedy  as  mayor  and  of 
the  boards  of  finance  and  of  street  landings  was  valid,  and  that  they 
were  clothed  with  the  powers  and  duties  which  pertained  to  their  re- 
spective positions. 

It  can  hardly  be  doubted  that  to  contract  for  the  use  of  a  portion 
of  the  water-front  of  the  city  during  the  continuance  of  the  military 
possession  of  the  United  States  was  within  the  scope  of  their  author- 
ity. But,  conceding  this  to  be  so,  it  is  insisted  that  when  the  military 
jurisdiction  terminated  the  lease  fell  with  it.  We  cannot  take  this 
view  of  the  subject.  The  question  arises  whether  the  instrument  was 
a  fair  and  reasonable  exercise  of  the  authority  under  which  it  was 
made.  A  large  amount  of  money  was  to  be  expended  and  Avas  ex- 
pended by  the  lessees.  The  lease  was  liable  to  be  annulled  if  the  ex- 
penditures were  not  made  and  the  work  done  within  the  limited  time 
specified.  The  war  might  last  many  years,  or  it  might  at  any  time 
cease  and  the  state  and  city  be  restored  to  their  normal  condition.  The 
improvements  to  be  made  were  important  to  the  welfare  and  pros- 
perity of  the  city.  The  company  had  a  right  to  use  them  only  for  a 
limited  time.  The  company  was  to  keep  them  in  repair  during  the  life 
of  the  lease,  and  at  its  termination  they  were  all  to  become  the  prop- 
is  Tlie  Prize  Oases,  2  Black,  636,  17  L.  Ed.  459  (1862) ;  Mrs.  Alexander's 
Cotton,  2  Wali.  417,  17  L.  Ed.  915  (1864) ;  Mauran  v.  Alliance  Insurance  Co., 
6  Wall.  1,  IS  L.  Ed.  836  (1867). 

14  Cross  V.  Harrison,  16  How.  164,  14  L.  Ed.  889  (1853) ;  Leitensdorfer  v. 
Webb,  20  How.  176,  15  L.  Ed.  S91  (1857) ;  The  Grapeshot,  9  Wall.  129,  19  L. 
Ed.  651  (1869). 


712  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   WAR         (Pait  3 

erty  of  the  city.  In  the  meantime  the  rental  of  eight  thousand  dol- 
lars a  year  was  to  be  paid. 

When  the  militar}'-  authorities  retired  the  rent  notes  unpaid  were  all 
handed  over  to  the  city.  The  city  took  the  place  of  the  United  States, 
and  succeeded  to  all  their  rights  under  the  contract.^^  The  company 
became  bound  to  the  city  in  all  respects  as  it  had  before  been  bound 
to  the  covenantees  in  the  lease.  The  city  thereafter  collected  one  of 
the  notes  subsequently  due,  and  it  holds  the  fund,  without  an  offer  to 
return  it,  while  conducting  this  litigation.  It  is  also  to  be  borne  in 
mind  that  there  has  been  no  offer  of  adjustment  touching  the  lasting 
and  valuable  improvements  made  by  the  company,  nor  is  there  any 
complaint  that  the  company  has  failed  in  any  particular  to  fulfill  their 
contract. 

We  think  the  lease  was  a  fair  and  reasonable  exercise  of  the  power 
vested  in  the  military  mayor  and  the  two  boards,  and  that  the  injunc- 
tion awarded  by  the  court  below  was  properly  decreed.  The  jus  post 
liminium  and  the  law  of  nuisance  have  no  application  to  the  case. 

We  do  not  intend  to  impugn  the  general  principle  that  the  contracts 
of  the  conqueror,  touching  things  in  conquered  territory  lose  their  ef- 
ficacy when  his  dominion  ceases.  We  decide  the  case  upon  its  own 
peculiar  circumstances,  which  we  think  are  sufficient  to  take  it  out 
of  the  rule. 

We  might,  perhaps,  well  hold  that  the  city  is  estopped  from  deny- 
ing the  validity  of  the  lease  by  receiving  payment  of  one  of  the  notes, 
but  v,e  prefer  to  place  our  judgment  upon  the  ground  before  stated. 

Judgment  affirmed. 

Justices  Clifford,  Davis,  and  Bradley  did  not  hear  the  argument 
of  this  case,  and  did  not  participate  in  the  judgment. 

Mr.  Justice  Hunt,  concurring. 

I  cannot  assent  to  the  proposition  that  the  agents  of  the  cit}^  appoint- 
ed by  the  conquering  power  which  captured  it  had  authority  to  exe- 
cute a  lease  of  its  levees  and  wharves  continuing  more  than  nine  years 
after  the  conquering  power  had  abdicated  its  conquest.  If  an  exten- 
sion of  nine  years  may  be  justified,  it  would  be  difficult  to  repudiate 
an  extension  for  ninety  years,  if  that  case  should  be  presented.  The 
lease  under  consideration  was  executed  on  the  8th  day  of  July,  1865, 
to  continue  for  the  term  of  ten  years.  On  the  ISth  of  March,  1866, 
eight  months  and  ten  days  afterwards,  tlie  military  authority  of  the 
United  States  was  withdrawn  and  the  civil  authority  resumed  its  sway. 
The  lease  continued  for  that  length  of  time  during  the  military  occu- 
pation of  the  city,  and  by  its  terms  was  to  continue  nine  years,  three 
months,  and  twenty  days  after  the  military  dominion  did  in  fact  cease 
to  exist.  That  the  execution  of  this  lease  was  an  unwarranted  assump- 
tion of  power  by  the  agents  who  made  it,  I  quote  Halleck  on  Interna- 
ls United  States  v.  McRae,  8  L.  R.  Eq.  75  (1869). 


Ch.  9)  OCCUPATION ;  conquest  ;  martial  law  713 

tional  Law  and  the  Laws  of  War,  p.  780,  §  4  (1861).  He  uses  this  lan- 
guage: 

"Sec.  4.  Political  laws,  as  a  general  rule,  are  suspended  during 
the  military  occupation  of  a  conquered  territory.  The  political  con- 
nection between  the  people  of  such  territory  and  the  state  to  which 
they  belong  is  not  entirely  severed,  but  is  interrupted  or  suspended 
so  long  as  the  occupation  continues.  Their  lands  and  immovable  prop- 
erty are,  therefore,  not  subject  to  the  taxes,  rents,  &c.,  usually  paid 
to  the  former  sovereign.  These,,  as  we  have  said  elsewhere,  belong 
of  right  to  the  conqueror,  and  he  may  demand  and  receive  their  pay- 
ment to  himself.  They  are  a  part  of  the  spoils  of  war,  and  the  peo- 
ple of  a  captured  province  or  town  can  no  more  pay  them  to  the  for- 
mer government  than  they  can  contribute  funds  or  military  munitions 
to  assist  that  government  to  prosecute  the  war.  To  do  so  would  be 
a  breach  of  the  impHed  conditions  under  which  the  people  of  a  con- 
quered territory  are  allowed  to  enjoy  their  private  property  and  to 
pursue  their  ordinary  occupations,  and  would  render  the  offender  lia- 
ble to  punishment.  They  are  subject  to  the  laws  of  the  conqueror, 
and  not  to  the  orders  of  the  displaced  government.  Of  lands  and  im- 
movable property  belonging  to  the  conquered  state,  the  conqueror  has, 
by  the  rights  of  war,  acquired  the  use  so  long  as  he  holds  them.  The 
fruits,  rents,  and  profits,  are  therefore,  his ;  and  he  may  lawfully  claim 
and  receive  them.  Any  contracts  or  agreements,  however,  which  he 
may  make  with  individuals  farming  out  such  property,  will  continue 
only  so  long  as  he  retains  control  of  them,  and  will  cease  on  their  res- 
toration to,  or  recovery  by,  their  former  owner."  To  which  he  cites 
Hefi'ter,  Droit  International,  §§  131-133,  186;  Vattel,  Droit  des  Gens, 
liv.  3,  c.  13,  §  197  et  seq. ;  American  Ins.  Co.  v.  Canter,  1  Pet.  511,  542,  7 
L.  Ed.  242  (1828),  and  other  authorities.  See,  also.  Thirty  Hogs- 
heads of  Sugar  V.  Boyle,  9  Cranch,  191,  3  L.  Ed.  701  (1815). 

The  wharves  and  levees  now  in  question  were  land  and  immovable 
property  belonging  to  the  conquered  state.  The  fruits  and  rents  of 
them  were  spoils  of  war  which  belonged  to  the  conqueror  so  long  as 
he  held  the  conquered  state.  When  the  possession  of  the  conqueror 
was  at  an  end,  the  rights  belonging  to  a  conqueror  ceased  also.  The 
spoils  of  war  do  not  belong  to  a  state  of  peace.     *     *     * 

The  armies  of  the  revolting  states  were  overthrown,  and  peace  en- 
sued. It  was  not,  as  the  ancient  historian  said,  "solitudinem  faciunt. 
pacem  appellant,"  but  rest,  repose,  and  rights  restored.  The  state 
of  Louisiana  was  again  the  sovereign  authority  in  which  all  the  ad- 
ministrative power  of  the  state  was  vested.  The  City  of  New  Or- 
leans as  a  representative  of  the  state,  and,  under  its  authority,  pos- 
sessed the  absolute  control  of  its  municipal  powers,  in  the  same  man- 
ner and  to  the  same  extent  as  it  possessed  and  exercised  them  before 
the  existence  of  the  war.  The  displaced  government  resumed  its  sway. 
The  conqueror's  possession  ceased. 


714  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   WAR         (Part  3 

The  state  of  Louisiana  and  the  Confederate  government  were  public 
enemies,  not  unsuccessful  revolutionists  merely.  The  forts  of  the 
Confederate  States  were  blockaded  as  those  of  a  foreign  enemy,  and 
vessels  taken  in  attempting  to  enter  them  were  adjudged  prizes  of  war. 
A  prize  court  is  in  its  very  nature  an  international  tribunal.  Their 
captured  soldiers  were  not  shot  as  rebels,  but  were  exchanged  as  pris- 
oners of  war.  All  intercourse  between  the  citizens  of  the  contending 
states  was  illegal,  contracts  were  dissolved  or  suspended,  their  prop- 
erty within  our  states  was  confiscated  to.  the  public  use.  In  short,  we 
were  at  war  with  them.  It  is  difficult  to  understand,  why  the  post- 
liminy doctrine  is  not  applicable  under  such  circumstances. 

In  Fleming  v.  Page,  9  How.  614,  13  L.  Ed.  276  (1850),  Chief  Jus- 
tice Taney  says :  "The  port  of  Tampico,  at  which  the  goods  were 
shipped,  and  the  Mexican  state  of  Tamaulipas,  in  which  it  is  situated, 
were  undoubtedly,  at  the  time  of  the  shipment,  subject  to  the  sover- 
eignty and  dominion  of  the  United  States.  The  Mexican  authorities 
had  been  driven  out  or  had  submitted  to  our  army  and  navy;  and 
the  country  was  in  the  exclusive  and  firm  possession  of  the  United 
States,  and  governed  by  its  military  authorities,  acting  under  the  order 
of  the  President.  But  it  does  not  follow  that  it  was  a  part  of  the 
United  States,  or  that  it  ceased  to  be  a  foreign  country  in  the  sense 
in  which  these  words  are  used  in  the  acts  of  Congress.  *  *  * 
While  it  was  occupied  by  our  troops,  they  were  in  an  enemy's  country 
and  not  in  their  own ;  the  inhabitants  were  still  foreigners  and  enemies, 
and  owed  to  the  United  States  nothing  more  than  the  submission  and 
obedience,  sometimes  called  temporary  allegiance,  which  is  due  from 
a  conquered  enemy  when  he  surrenders  to  a  force  which  he  is  unable 
to  resist.  Tampico,  therefore  (he  says),  was  a  foreign  port  when  this 
shipment  was  made." 

This  case  is  authority  to  the  proposition  that  conquest  and  tempo- 
rary military  possession  do  not  alter  the  national  character  of  a  city 
or  port.  As  Tampico  remained  Mexican,  notwithstanding  its  con- 
quest by  our  armies,  so  New  Orleans,  so  far  as  the  jus  post  liminii 
is  concerned,  remained  a  part  of  the  Southern  Confederacy.     *     *     * 

In  my  view,  the  agents  of  the  city  who  made  the  lease  of  July  18, 
1865,  which  we  are  now  considering,  exceeded  the  authority  they  pos- 
sessed. Their  authority  was  limited  to  the  time  of  the  possession  and 
control  of  the  lots  by  the  military  authority  which  appointed  them.  The 
making  of  the  lease,  however,  was  not  an  illegal  act  in  any  other 
sense  than  that  the  agents  had  exceeded  their  powers.  The  excessive 
acts  gf  those  agents  were  capable  of  ratification,  and  if  ratified,  were 
as  binding  upon  the  principal  as  if  originally  authorized. 

It  appears  that  the  lessees  gave  their  notes  (one  hundred  and  twenty 
notes  in  number)  for  $666.66  each,  payable  monthly,  for  the  whole 
amount  of  the  rent  to  become  due.  The  first  nine  of  the  notes  were 
paid  to  the  mayor  and  bureau  acting  under  the  military  authority.    The 


Ch.  9)  OCCUPATION ;  conquest  ;  martial  law  715 

igovernment  of  the  city  now  in  power  was  elected  by  the  citizens  ac- 
cording to  law,  in  the  ordinary  manner,  upon  the  resumption  by  the 
state  and  city  of  their  civil  powers,  and  was  vested  with  the  entire  au- 
thority of  the  city  in  respect  to  wharves,  levees,  their  management  and 
control.  Upon  the  principles  already  stated,  it  had  power  to  lease 
the  levee  and  wharf  in  question  to  the  steamship  company  for  the 
period  named  in  the  lease.  Prior  to  the  war,  it  had  leased  portions  of 
its  wharves  to  individuals,  and  had  farmed  out  the  collection  of  the 
levee  dues  upon  the  entire  wharves  by  sections.-^® 

It  came  into  possession  of  the  city  government  upon  the  election  of 
its  citizens  on  the  18th  of  March,  1866.  Twenty-four  days  thereafter, 
to  wit,  on  the  11th  of  April,  1866,  the  note  for  $666.66  due  three  days 
previously,  was  paid  to  the  city  government.  At  the  same  time  all  the 
other  notes,  one  hundred  and  eleven  in  number,  were  transferred  by  the 
military  government  to  the  new  city  administration.  These  notes  were 
retained  by  the  city  until  several  months  after  the  present  action  was 
begun,  when  they  were  tendered  to  the  plaintiff  by  supplemental  an- 
swer. No  tender  was  ever- made  of  the  money,  $666.66,  received  by 
the  city  upon  the  note  paid  to  it  by  the  plaintiff  for  the  rent  due  April 
8,  1866.  It  now  holds  and  enjoys,  to  that  amount,  the  rent  received 
by  it  under  a  lease  which  it  seeks  to  repudiate. 

The  reception  and  holding  of  this  rent  is  a  clear  and  unqualified  act 
of  ratification,  which  bars  the  defence  of  a  want  of  authority  to  execute 
the  lease  from  which  it  issued.  It  is  in  violation  of  every  principle 
of  honesty  and  of  sound  morality,  that  one  should  retain  the  benefit 
of  the  act  of  his  agent,  and  at  the  same  time  repudiate  such  act. 

A  ratification  once  made,  with  a  knowledge  of  all  the  material  cir- 
cumstances, cannot  be  recalled.  A  ratification  of  a  part  of  a  contract 
ratifies  the  whole.  One  act  of  ratification  is  as  complete  and  perfect 
in  its  effect  as  any  number  of  acts  of  the  same  character. 

For  these  reasons  I  am  able  to  concur  in  the  affirmance  of  the  judg- 
ment. 

Mr.  Justice  Field,  dissenting. 

I  am  unable  to  agree  with  the  majority  of  the  court  in  the  judgment 
rendered.  The  power  of  the  mayor  and  board  of  New  Orleans,  ap- 
pointed by  the  commanding  general  upon  the  military  occupation  of 
that  city,  terminated  with  the  cessation  of  hostilities ;  and  I  am  of  opin- 
ion that  no  valid  alienation  of  any  portion  of  the  levee  front  and  landing 
of  the  city  could  be  made  by  them  for  any  period  extending  beyond 
such  occupation. 

Assuming,  as  asserted,  that  the  capture  of  New  Orleans  gave  to  the 
military  authorities  of  the  Union  the  same  rights  with  respect  to  prop- 
erty there  situated  which  would  attend  the  conquest  of  a  foreign  coun- 
try, the  result  is  not  different.    A  temporary  conquest  and  occupation 

i»l  Dillon  on  Municipal  Corporations,  §§  43,  G4,  67,  74,  181. 


716  RIGHTS   AND   DUTIES  OF   NATIONS  IN  TIME  OF  WAR         (Part  3 

of  a  country  do  not  change  the  title  to  immovable  property,  or  author- 
ize its  alienation.  They  confer  only  the  rights  of  possession  and  use. 
When  the  military  occupation  ceases,  the  property  reverts  to  the  original 
owner  with  the  title  unimpaired. 

"Of  lands  and  immovable  property  belonging  to  the  state,"  says  Hal- 
leck,  "the  conqueror  has  by  the  rights  of  war  acquired  the  use  so  long 
as  he  holds  them.  The  fruits,  rents,  and  profits,  are,  therefore,  his; 
and  he  may  lawfully  claim  and  receive  them,  but  contracts  or  agree- 
ments, however,  which  he  may  make  with  individuals  farming  out  such 
property,  will  continue  only  so  long  as  he  retains  control  of  them,  and 
will  cease  on  their  restoration  to  or  recovery  by  their  former  owner."  ^' 
Such  is  the  language  of  all  publicists  and  jurists,  and  there  is  nothing 
in  the  circumstances  attending  the  military  occupation  of  New  Orleans 
by  our  forces  which  calls  for  any  modification  of  the  well-established 
rule  of  public  law  on  this  subject.  The  fact  that  New  Orleans  is  a 
part  of  one  of  the  states  of  the  Union  certainly  ought  not  to  be  deemed 
a  reason  for  enlarging  the  power  of  the  military  commander,  but  on 
the  contrary  would  seem  to  be  good  ground  for  restricting  it. 

It  appears  to  me  to  be  perfectly  clear  that,  according  to  settled  doc- 
trines of  public  law,  questioned  by  no  publicists,  but  everywhere  rec- 
ognized, the  authorities  of  New  Orleans  were  restored  to  as  complete 
control  over  the  levee  front  and  landing  of  the  city  upon  the  cessation 
of  the  military  occupation  as  they  possessed  previously,  and  had,  in  con- 
sequence, a  perfect  right  to  remove  all  obstacles  to  the  public  use  of 
such  levees  and  landings. 

I  do  not  see  any  ground  for  the  application  of  the  doctrine  of  rati- 
fication in  the  case.  The  civil  authorities  of  the  city  were  restored  to 
power  in  March,  1866,  and  in  April  following  they  asserted  their 
right  to  remove  the  obstructions  to  the  levees  created  by  the  steamship 
company,  and  took  steps  to  enforce  it.  In  this  proceeding  they  repudi- 
ated instead  of  ratifying  the  action  of  their  military  predecessors.  The 
one  hundred  and  eleven  unpaid  notes  of  the  company  received  by  their 
predecessors  have  been  deposited  in  court  subject  to  the  company's  or- 
der, and  the  failure  to  restore  or  tender  the  proceeds  of  one  note, 
amounting  to  six  hundred  and  sixty-six  dollars,  previously  paid,  may 
be  justified  or  explained,  on  grounds  consistent  with  the  repudiation  of 
the  lease.  Ratification  of  unauthorized  acts  of  public  agents,  or  persons 
assuming  to  be  public  agents,  can  only  be  inferred  from  conduct  indi- 
cating an  intention  to  adopt  the  acts  and  inconsistent  with  any  other 
purpose.  The  alienation  by  sale  or  lease  of  any  portion  of  the  public 
levees  and  landings  of  the  city  after  the  restoration  of  its  civil  author- 
ities could  only  be  made,  if  at  all.  by  ordinance  or  resolution  of  its  com- 
mon council,  and  It!  may  be  doubted  whether  there  could  be  a  ratification 

IT  On  International  Law,  e.  32,  §  4. 


Ch.  9)  OCCUPATION ;  conquest  ;  martial  law  717 

of  an  unauthorized  alienation,  attempted  by  their  predecessors,  by  any 
proceeding  less  direct  and  formal. 

I  am  of  opinion,  therefore,  that  the  decree  of  the  court  below  should 
be  reversed,  and  the  bill  be  dismissed.^* 


MacLEOD  V.  UNITED  STATES. 

(Supreme  Court  of  the  United  States.  1913.    229  U.  S.  416,  33  Sup.  Ct  955. 

57  L.  Ed.  1260.) 

The  appellant,  William  Stewart  MacLeod,  surviving  partner  of  Mac- 
Leod &  Co.,  brought  suit  in  the  Court  of  Claims  to  recover  from  the 
United  States  the  amount  of  certain  duties  paid  by  the  firm  under  pro- 
test upon  a  cargo  of  rice  imported  into  the  Island  of  Cebu  at  the  city 

18  In  1898  the  United  State?  intervened  on  behalf  of  the  Cubans,  in  their 
war  of  independence  against  Spain,  and  from  1898  to  1902  the  American  army 
occupied  the  island. 

"It  is  understood  that  any  obligations  assumed  in  this  treaty  by  the  United 
States  with  respect  to  Cuba  are  limited  to  the  time  of  its  occupancy  thereof; 
but  It  will  upon  the  termination  of  such  occupancy,  advise  any  government 
established  in  the  island  to  assume  the  same  obligations."  Article  XVI,  Trea- 
ty with  Spain,  30  Stat.  1754,  1761. 

"That  no  property,  franchises,  or  concessions  of  any  kind  whatever  shall 
be  granted  by  United  States,  or  by  any  military  or  other  authority  whatever, 
in  the  Island  of  Cuba  during  the  occupation  thereof  bv  the  United  States." 
Act  of  March  3,  1899,  30  Stat.  1065,  1074. 

The  French  courts  of  justice  have  been  called  upon  to  pass  on  que-stions 
more  or  less  related  to  those  discussed  in  the  principal  case. 

In  Villasseque's  Case,  Cour  de  Cassation.  Ortolan,  Diplomatie  de  la  Mer. 
(2d  Ed.,  1853)  vol.  1,  324  note  (1818),  it  was  decided  that  a  crime  committed  by 
a  French  citizen  in  Spanish  territory,  occupied  and  administered  by  the  French 
army,  was  a  crime  committed  in  a  foreign  country.  Cf.  Neely  v.  Henkel,  ISO 
U.  S.  100,  21  Sup.  Ct.  302,  45  L.  Ed.  448  (1901). 

In  the  Case  of  Guerin,  Court  of  Appeal  of  Nancy,  1872,  Dalloz,  vol.  2,  p. 
185  (1872),  it  was  held  that  the  occupation  of  a  department  of  France  by  the 
troops  of  the  enemy  does  not  suspend  therein  the  civil  and  criminal  laws  of 
Fran,ce ;  that  these  continue  obligatory  upon  all  Frenchmen  so  long  at  least 
as  they  have  not  been  expressly  and  specifically  abrogated  by  the  exigencies 
of  the  war.  This  rule  was  enforced  in  respect  to  the  custom  laws,  and  even 
in  that  part  of  the  occupied  territory  where  the  Germans  collected  and  ap- 
propriated the  duties.    Dalloz,  vol.  2,  p.  185,  notes  3,  4  (1872). 

In  Mohr  &  Haas  v.  Hatzfeld,  Court  of  Appeals  of  Nancy,  1872,  Dalloz,  vol. 
2,  p.  229  (1872),  it  was  held  that  the  military  occupation  of  a  territory  confers 
upon  the  invader  the  right  only  to  the  usufruct  and  revenues  of  the  public  do- 
main; that  the  French  courts  will  not  recognize  as  valid  the  sale  of  old 
trees  (during  the  war  of  1870-71)  on  the  public  domain,  which  were  reserved 
at  the  time  of  the  annual  cutting ;  that  they  are  as  inalienable  as  the  soil  of 
the  forest  itself. 

Perhaps  the  most  famous  case  on  the  general  subject  relates  to  the  debts 
and  domains  of  Hesse-Cassel,  confiscated  or  alienated  by  Napoleon  I.  Hesse- 
Cassel  was  conquered  by  Napoleon  in  1800,  and  remained  for  about  a  year 
under  his  immediate  control,  when  it  was  annexed  to  the  new  kingdom  of 
Westphalia,  of  which  it  remained  a  part  until  after  the  battle  of  Leipzig  in 
1813.  It  was  held  in  the  Elector  of  Hesse-Cassel's  Ca.se,  that  debts  due  the 
Elector  were  validly  discharged  by  payment  to  Napoleon  and  receiving  from 
him  acquittance  in  full.  3  Phillimore's  International  Law  (3d  Ed.)  841  (1SS5) ; 
Magoou's  Military  Occupation,  2G2,  263   (1902). 


718  EIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

and  port  of  the  same  name,  in  the  Philippine  Islands,  on  January  29, 
1899.  The  Court  of  Claims  decided  in  favor  of  the  United  States  and 
rendered  judgment  dismissing  the  petition.  45  Ct.  01.  339.  The  case 
was  then  appealed  to  this  court. 

The  Court  of  Claims  made  findings  of  fact,  the  substance  of  which 
is  as  follows: 

The  claimant  firm,  comprised  of  the  appellant  (the  survivor)  and  two 
others,  all  citizens  of  Great  Britain,  had  its  head  office  at  Manila  and 
was  engaged  in  doing  a  general  mercantile  business  there  and  else- 
where in  the  Orient.  On  January"  13,  1899,  the  claimants  chartered 
an  American  steamship,  the  Venus,  at  Manila  and  cleared  her  in  ballast 
for  Saigon,  China,  whence  she  sailed  for  the  port  of  Cebu  with  a  cargo 
of  rice  on  January  22nd,  carrying  the  usual  consular  papers.  Prior 
to  that  time  it  had  been  the  practice  of  the  military  authorities  at  Ma- 
nila to  require  importers,  residing  in  that  city  and  shipping  rice  to  points 
in  the  Philippines  not  actually  occupied  by  the  United  States  forces, 
to  present  certified  manifests  covering  their  cargoes  and  to  pay  the 
duties  thereon  to  the  United  States  military  collector  of  customs  at 
Manila,  which  practice  was  a  matter  of  common  knowledge  and  dis- 
cussion among  the  business  men  in  that  city,  but  there  is  no  other  evi- 
dence charging  the  claimants  with  knowledge  of  the  fact. 

The  collector  at  Alanila  was  informed  by  competitors  of  the  claim- 
ants that  the  latter  proposed  to  ship  the  cargo  to  Cebu  without  pay- 
ing duty  at  Manila  and  that,  as  they  complied  with  the  requirements  of 
the  United  States  authorities,  they  would  be  unable  to  compete,  un- 
der such  unfair  conditions,  with  the  claimants ;  and  the  collector  re- 
ceived confirmation  of  such  report  from  the  consul  at  Saigon  on  the 
21st  of  January,  and  on  the  23d  officially  notified  the  claimants  that 
a  certified  manifest  must  be  presented  and  duties  paid  on  the  cargo 
at  the  custom  house  at  Manila.  The  next  day  one  of  the  claimants  pre- 
sented in  person  to  the  collector  a  letter  stating  that  there  had  been 
no  secret  as  to  the  movement  of  the  Venus ;  that  she  had  been  openly 
dispatched  to  Saigon  to  load  a  cargo  of  rice  for  the  Philippines,  and  that 
the  captain  had  instructions  to  secure  consular  papers,  if  ordered  to 
Cebu,  in  case  that  port  should  be  in  the  possession  of  the  United  States 
authorities  upon  his  arrival,  and  that  they  presumed  his  papers  were 
in  order ;  that  according  to  their  advice  Cebu  was  in  the  hands  of 
the  republican  government,  whose  authorities  would  exact  the  pay- 
ment of  duties,  the  same  in  amount  as  under  the  Manila  tariff;  that 
in  selling  the  cargo  they  had  been  required  to  guarantee  that  the  duties 
would  not  exceed  those  under  the  Manila  tariff;  that  the  claimants 
protested  against  paying  the  duties  twice,  as  it  was  through  no  fault 
of  theirs  that  the  duties  went  to  the  Cebu  authorities,  and  that,  desir- 
ing to  respect  the  notification,  they  would,  if  instructed,  request  their 
Cebu  friends  to  protest  against  the  payment  in  Cebu  because,  accord- 
ing to  the  notification,  the  Cebu  customs  were  under  the  control  of 
the  United  States.    At  the  same  time  the  collector  was  informed  that 


Ch.  9)  OCCUPATION ;  conquest  ;  martial  law  719 

a  ship  of  the  claimants  was  about  to  leave  Manila  for  Cebu,  which  would 
arrive  in  time  to  head  off  the  Venus  (which  did  in  fact  sail  from  Manila 
that  day  and  arrived  in  Cebu  before  the  Venus) ;  that  their  intention 
in  so  advising  the  collector  was  that  he  might  take  the  steps  he  thought 
most  expedient,  but  that  the  claimants,  unless  otherwise  ordered  by  the 
United  States,  intended  to  carry  out  their  contract  with  the  purchasers 
of  the  cargo,  even  if  required  to  pay  double  duties. 

Upon  the  arrival  of  the  Venus  at  Cebu,  January  29,  1899,  the  native 
government  demanded  the  payment  of  duties  on  the  cargo  and  refused 
to  allow  its  discharge  until  such  payment  was  made.  On  February 
4,  1899,  the  duties  were  paid  and  the  cargo  delivered  to  the  purchasers. 
Upon  the  arrival  of  the  Venus  thereafter  at  Manila,  with  a  cargo  from 
Cebu,  she  was  at  first  prevented  from  discharging  her  cargo  without 
paying  the  duties  involved  in  this  case,  but  later  was  permitted  to  do 
so.  Subsequently  the  collector  refused  to  receive  further  business  from 
the  claimants  until  the  duties  in  question  were  paid,  and  because  of 
such  refusal  and  in  order  to  transact  further  business  with  the  col- 
lector, the  claimants,  involuntarily  and  under  protest,  paid  the  duties 
demanded. 

War  was  declared  with  Spain  on  April  25,  1898,  and  on  May  1,  1898, 
the  forces  of  the  United  States  captured  Manila  Bay  and  harbor.  The 
following  order  of  the  President  was  thereafter  promulgated : 

"Executive  Mansion,  July  12,  1898. 

"By  virtue  of  the  authority  vested  in  me  as  Commander-in-Chief  of 
the  Army  and  Navy  of  the  United  States  of  America,  I  do  hereby  or- 
der and  direct  that  upon  the  occupation  and  possession  of  any  ports  and 
places  in  the  Philippine  Islands  by  the  forces  of  the  United  States  the 
following  tariff  of  duties  and  taxes,  to  be  levied  and  collected  as  a 
military  contribution,  and  regulations  for  the  administration  thereof, 
shall  take  effect  and  be  in  force  in  the  ports  and  places  so  occupied. 

"Questions  arising  under  said  tariff  and  regulations  shall  be  decided 
by  the  general  in  command  of  the  United  States  forces  in  those  islands. 

"Necessary  and  authorized  expenses  for  the  administration  of  said 
tariff  and  regulations  shall  be  paid  from  the  collections  thereunder. 

"Accurate  accounts  of  collections  and  expenditures  shall  be  kept 
and  rendered  to  the  Secretary  of  War.  William  McKinley." 

The  protocol  of  August  12,  1898,  provided  that  "the  United  States 
will  occupy  and  hold  the  city,  bay  and  harbor  of  Manila,  pending  the 
conclusion  of  a  treaty  of  peace  which  shall  determine  the  control,  dis- 
position and  government  of  the  Philippines."  Manila  was  opened  as 
a  port  of  entry  on  August  20,  1898,  and  Cebu  on  March  14,  1899. 
The  executive  order  of  July  12,  1898,  was  not  proclaim^ed  in  Cebu  until 
February  22,  1899,  or  later.  The  treaty  of  peace  was  signed  on  De- 
cember, 10,  1898,  but  ratifications  were  not  exchanged  until  April  11, 
1899.  The  Spanish  forces  evacuated  the  island  of  Cebu  on  December 
25,  1898,  having  first  appointed  a  provisional  governor.    Shortly  there- 


720  RIGHTS  AND   DUTIES   OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

after  the  native  inhabitants,  formerly  in  insurrection  against  Spain, 
took  possession  of  the  island,  formed  a  so-called  republic  and  admin- 
istered the  affairs  of  the  island  until  possession  was  surrendered  to 
the  United  States  on  February  22,  1899,  prior  to  which  time  no  au- 
thorities of  the  United  States  had  been  in  the  island  and  the  United 
States  had  not  been  in  possession  or  occupation  of  the  island,  it  having 
been  up  to  tliat  time  in  the  actual  physical  possession  of  the  Spanish 
and  the  people  of  the  island.     *     *     * 

Mr.  Justice  Day,  after  making  the  foregoing  statement,  delivered  the 
opinion  of  the  court.^® 

When  the  Spanish  fleet  was  destroyed  at  Manila,  May  1,  1898,  it 
became  apparent  that  the  government  of  the  United  States  might  be 
required  to  take  the  necessary  steps  to  make  provision  for  the  gov- 
ernment and  control  of  such  part  of  the  Philippines  as  might  come  into 
the  military  occupation  of  the  forces  of  the  United  States.  The  right 
to  thus  occupy  an  enemy's  country  and  temporarily,  provide  for  its 
government  has  been  recognized  by  previous  action  of  the  executive 
authority  and  'sanctioned  by  frequent  decisions  of  this  court.  The 
local  government  being  destroyed,  the  conqueror  may  set  up  its  own 
authority  and  make  rules  and  regulations  for  the  conduct  of  tempo- 
rary government,  and  to  that  end  may  collect  taxes  and  duties  to  sup- 
port the  military  authority  and  carry  on  operations  incident  to  the  oc- 
cupation. Such  was  the  course  of  the  government  with  respect  to 
the  territory  acquired  by  conquest  and  afterwards  ceded  by  the  Mexi- 
can government  to  the  United  States.  Cross  et  al.  v.  Harrison,  16 
How.  164,  14  L.  Ed.  889.  See  also,  m  this  connection,  Fleming  v. 
Page,  9  How.  603,  13  L.  Ed.  276;  New  Orleans  v.  Steamship  Co.,  20 
Wall.  387,  22  L.  Ed.  354;  Dooley  v.  United  States,  182  U.  S.  222. 
21  Sup.  Ct.  762,  45  L.  Ed.  1074;  7  Moore's  International  Law  Digest, 
§  1143  et  seq.,  in  which  the  history  of  this  government's  action  fol- 
lowing the  Mexican  War  and  during  and  after  the  Spanish-American 
War  is  fully  set  forth ;  and  also  Taylor  on  International  Public  Law, 
chapter  IX,  Military  Occupation  and  Administration,  §  568  et  seq. ; 
and  2  Oppenheim  on  International  Law,  §  166  et  seq. 

There  has  been  considerable  discussion  in  the  cases  and  in  works  of 
authoritative  writers  upon  the  subject  of  what  constitutes  an  occupa- 
tion which  will  give  the  right  to  exercise  governmental  authority. 
Such  occupation  is  not  merely  invasion,  but  is  invasion  plus  posses- 
sion of  the  enemy's  country  for  the  purpose  of  holding  it  temporarily 
at  least.  2  Oppenheim,  §  167.  What  should  constitute  military  occu- 
pation was  one  of  the  matters  before  the  Hague  Convention  in  1899 
respecting  laws, and  customs  of  war'  on  land,  and  the  following  arti- 
cles were  adopted  by  the  nations  giving  adherence  to  that  convention, 
among  which  is  the  United  States  (32  Stat.  II,  1821) : 

i»  Parts  of  the  opinion  are  omitted. 


Ch.  9)       OCCUPATION ;  conquest  ;  martial  law        721 

"Article  XLH.  Territory  is  considered  occupied  when  it  is  actually 
placed  under  the  authority  of  the  hostile  army. 

"The  occupation  applies  only  to  the  territory  where  such  authority 
is  established,  and  in  a  position  to  assert  itself. 

"Article  XLIII.  The  authority  of  the  legitimate  power  having  ac- 
tually passed  into  the  hands  of  the  occupant,  the  latter  shall  take  all 
steps  in  his  power  to  re-establish  and  insure,  as  far  as  possible,  pub- 
lic order  and  safety,  while  respecting,  unless  absolutely  prevented,  the 
laws  in  force  in  the  country." 

A  reference  to  the  Messages  and  Papers  of  the  Presidents,  to  which 
we  may  refer  as  matters  of  public  history,  shows  that  the  President 
was  sensible  of  and  disposed  to  conform  the  activities  of  our  govern- 
ment to  the  principles  of  international  law  and  practice.  See  10  Mes- 
sages and  Papers  of  the  Presidents,  208,  executive  order  of  the  Pres- 
ident to  the  Secretary  of  War,  in  which  the  President  said  (page  210) : 

"While  it  is  held  to  be  the  right  of  a  conqueror  to  levy  contribu- 
tions upon  the  enemy  in  their  seaports,  towns,  or  provinces  which  may 
be  in  his  military  possession  by  conquest,  and  to  apply  the  proceeds 
to  defray  the  expenses  of  the  war,  this  right  is  to  be  exercised  within 
such  limitations  that  it  may  not  savor  of  confiscation.  As  the  result 
of  military  occupation  the  taxes  and  duties  payable  by  the  inhabitants 
to  the  former  government  become  payable  to  the  military  occupant, 
unless-he  sees  fit  to  substitute  for  them  other  rates  or  modes  of  con- 
tributions to  the  expenses  of  the  govermnent.  The  moneys  so  col- 
lected are  to  be  used  for  the  purpose  of  paying  the  expenses  of  gov- 
ernment under  the  military  occupation,  such  as  the  salaries  of  the 
judges  and  the  police,  and  for  the  payment  of  the  expenses  of  the 
army." 

To  the  same  effect,  executive  order  of  the  President  to  the  Secre- 
tary of  the  Treasury,  in  which  the  President  said  (page  211): 

"I  have  determined  to  order  that  all  ports  or  places  in  the  Philip- 
pines which  may  be  in  the  actual  possession  of  our  land  and  naval 
forces  by  conquest  shall  be  opened,  while  our  military  occupation 
may  continue,  to  the  commerce  of  all  neutral  nations,  as  well  as  our 
own,  in  articles  not  contraband  of  war,  upon  payment  of  the  rates  of 
duty  which  may  be  in  force  at  the  time  when  the  goods  are  imported." 

And  the  like  executive  order  of  the  President  to  the  Secretary  of 
the  Navy  (-page  212). 

In  pursuance  of  this  policy,  the  order  of  July  12,  1898,  was  framed. 
By  its  plain  tenns  the  President  orders  and  directs  the  collection  of 
tariff  duties  at  ports  in  the  occupation  and  possession  of  the  forces  of 
the  United  States.  More  than  this  would  not  have  been  consistent 
with  the  principles  of  international  law,  nor  with  the  practice  of  this 
government  in  like  cases.  While  the  subsequent  order  of  December 
21,  1898.  made  after  the  signing  of  the  treaty  of  peace,  is  referred  to 
Scon  Int.Law — i6 


722  RIGHTS  AND   DUTIES   OF  NATIONS   IN  TIME   OP  WAR         (Part  3 

in  the  brief  of  counsel  for  the  government,  it  was  not  alluded  to  in 
the  findings  of  fact  of  the  Court  of  Claims;  but  we  find  nothing  in 
that  order  indicating  a  change  of  policy  in  respect  to  the  collection  of 
duties.  While  [with]  the  signing  of  the  treaty  of  peace  between  the 
United  States  and  Spain  on  December  10,  1898,  [it]  was  stated,  the 
responsible  obligations  imposed  upon  the  United  States  by  reason  there- 
of were  recited  and  acknowledged  and  the  necessity  of  extending  the 
government  with  all  possible  dispatch  to  the  whole  of  the  ceded  ter- 
ritory was  emphasized,  no  disposition  was  shown  to  enlarge  the  number 
of  ports  and  places  in  the  Philippine^  Islands  at  which  duties  should 
be  collected  so  as  to  include  those  not  occupied  by  the  United  States, 
and  the  President  said  (page  220): 

"All  ports  and  places  in  the  Philippine  Islands  In  the  actual  posses- 
sion of  the  land  and  naval  forces  of  the  United  States  will  be  opened 
to  the  commerce  of  all  friendly  nations.  All  goods  and  wares  not 
prohibited  for  military  reasons,  by  due  announcement  of  the  military 
authority,  will  be  admitted  upon  payment  of  such  duties  and  other 
charges  as  shall  be  in  force  at  the  time  of  their  importation." 

The  occupation  by  the  United  States  of  the  city,  bay  and  harbor  of 
Manila  pending  the  conclusion  of  a  treaty  which  should  determine  the 
control,  disposition  and  government  of  the  Philippines  was  provided 
for  by  the  protocol  of  August  12,  1898,  and  the  necessity  of  further 
occupation,  until  the  exchange  of  ratifications  by  the  goverjiments 
of  Spain  and  the  United  States,  was  recognized  by  the  President  in 
the  order  of  December  21,  1898.  We  have  been  unable  to  find  any- 
thing in  the  executive  or  congressional  action  prior  to  the  importation 
of  the  cargo  now  in  question  having  the  effect  to  extend  the  executive 
order  as  to  the  collection  of  duties  during  the  military  occupation  to 
ports  and  places  not  within  the  occupation  and  control  of  the  United 
States. 

The  statement  of  the  facts  shows  that  the  insurgent  government 
was  in  actual  possession  of  the  custom  house  at  Cebu,  with  power  to 
enforce  the  collection  of  duties  there,  as  it  did.  Such  government  was 
of  the  class  of  de  facto  governments  described  in  1  Moore's  Inter- 
national Law  Digest,  §  20,  as  follows : 

"But  there  is  another  description  of  government,  called  also  by 
publicists  a  government  de  facto,  but  which  might,  perhaps,  be  more 
aptly  denominated  a  government  of  paramount  force.  Its  distin- 
guishing characteristics  are  (1)  that  its  existence  is  maintained  by  ac- 
tive military  power  within  the  territories,  and  against  the  rightful  au- 
thority of  an  established  and  lawful  government;  and  (2)  that  while 
it  exists  it  must  necessarily  be  obeyed  in  civil  matters  by  private  citi- 
zens who,  by  acts  of  obedience  rendered  in  submission  to  such  force, 
do  not  become  responsible,  as  wrongdoers,  for  those  acts,  though  not 
warranted  by  the  laws  of  the  rightful  government.  Actual  govern- 
ments of  this  sort  are  established  over  districts  differing  greatly  in 

Scott  Int.Law 


Ch.  9)  OCCUPATION  ;  conquest  ;  martial  law  723 

extent  and  conditions.  They  are  usually  administered  directly  by  mili- 
tary authority,  but  they  may  be  administered,  also,  by  civil  authority, 
supported  more  or  less  directly  by  military  force.  Thorington  v. 
Smith,  8  Wall.  1,  9,  19  L.  Ed.  361." 

The  attitude  of  this  government  toward  such  de  facto  governments 
was  evidenced  in  the  Bluefields  Case,  a  full  account  of  which  is  given 
in  1  Moore's  International  Law  Digest,  p.  49  et  seq.     *     *     * 

A  similar  case  appears  in  1  Moore's  International  Digest,  p.  49,  in 
which  our  government  was  requested  by  Great  Britain  to  use  its  good 
offices  to  prevent  the  exaction  by  the  Mexican  government  of  certain 
duties  at  Mazatlan,  which  had  been  previously  paid  to  insurgents. 
*  *  *  See  also  Colombian  Controversy,  6  Moore's  International 
Law  Digest,  p.  995  et  seq. 

While  differing  somewhat  in  its  circumstances,  the  case  of  United 
States  V.  Rice,  4  Wheat.  246,  4  L.  Ed.  562,  is  an  instructive  case.  *  *  * 

It  is  said,  however,  that  the  claimants  resided  and  were  doing  busi- 
ness at  Manila  and  therefore  were  subject  to  the  military  authority 
there,  and  the  authority  of  a  conquering  jXDwer,  recognized  in  New 
Orleans  v.  Steamship  Co.,  supra,  20  Wall.  394,  22  L.  Ed.  354,  to  reg- 
ulate trade  with  the  enemy  and  in  its  country  is  cited  in  support  of  the 
proposition.  That  there  is  such  general  authority,  there  can  be  no 
doubt.  It  is,  however,  not  without  limitation,  and  a  local  commander 
is  certainly  bound  by  the  orders  of  the  President  as  commander  in 
chief,  which  in  this  case  had  limited  tariff  collections  to  ports  and 
places  occupied  by  the  United  States.  And  such  authority  is  subject 
to  the  laws  and  usages  of  war  (New  Orleans  v.  Steamship  Co.,  supra, 
20  Wall.  394,  22  L.  Ed.  354),  and,  we  may  add,  to  such  rules  as  are 
sanctioned  by  established  principles  of  international  law. 

A  state  of  war  as  to  third  persons  continued  until  the  exchange  of 
treaty  ratifications  (Dooley  v.  United  States,  182  U.  S.  222,  230,  21 
Sup.  Ct.  762,  45  L.  Ed.  1074),  and,  although  rice,  not  being  contraband 
of  war,  might  have  been  imported  (7  Moore's  International  Law  Dig. 
pp.  683,  684),  the  authority  of  the  military  commander,  until  the  ex- 
change of  ratifications,  may  have  included  the  right  to  control  vessels 
sailing,  from  Manila  to  trade  in  the  enemy's  country  and  to  penalize 
violations  of  orders  in  that  respect.  But  whatever  the  authority  of  the 
commander  at  Manila  or  those  acting  under  his  direction  to  control 
shipments  by  persons  trading  at  Manila  and  in  vessels  sailing  from 
there  of  American  registration,  such  authority  did  not  extend  to  the 
second  collection  of  duties  upon  a  cargo  from  a  foreign  port  to  a 
port  occupied  by  a  de  facto  government  which  had  compulsorily  re- 
quired the  payment  of  like  duties. 

It  is  further  contended  that,  if  the  collection  of  duties  was  originally 
without  authority,  it  was  ratified  by  the  Act  of  June  30,  1906  (34  Stat. 
634,  636,  c.  3912).     *     *     * 

We  think  the  Court  of  Claims  was  in  error  in  holding  the  duties 
collectible  at  Manila  under  the  circumstances  related,  and  in  adjudg- 


724  RIGHTS  AND  DUTIES  OF  NATIONS   IN  TIME  OF  WAR         (Part  3 

ing  that  the  Act  of  June  30,  1906,  ratified  the  conduct  of  the  military 
authorities  at  Manila  in  compelling  such  payment.     Its  judgment  will 
therefore  be  reversed  and  the  case  remanded  to  the  Court  of  Claims 
with  instructions  to  enter  judgment  for  the  claimant. 
Reversed. 


Ex  parte  MILLIGAN. 
(Supreme  Court  of  the  United  States,  1866.    4  Wall.  2,  18  L.  Ed.  281.) 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court.^" 

On  the  10th  day  of  May,  1865,  Lambdin  P.  Milligan  presented  a 
petition  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
Indiana,  to  be  discharged  from  an  alleged  unlawful  imprisonment.  The 
case  made  by  the  petition  is  this :  Milligan  is  a  citizen  of  the  United 
States ;  has  lived  for  twenty  years  in  Indiana ;  and,  at  the  time  of  the 
grievances  complained  of,  was  not,  and  never  had  been  in  the  military 
or  naval  service  of  the  United  States.  On  the  5th  day  of  October, 
1864,  while  at  home,  he  was  arrested  by  order  of  General  Alvin  P. 
Hovey,  commanding  the  military  district  of  Indiana;  and  has  ever 
since  been  kept  in  close  confinement. 

On  the  21st  day  of  October,  1864,  he  was  brought  before  a  military 
commission,  convened  at  Indianapolis,  by  order  of  General  Hovey, 
tried  on  certain  charges  and  specifications,  found  guilty,  and  sentenced 
to  be  hanged,  and  the  sentence  ordered  to  be  executed  on  Friday,  the 
19th  day  of  May,  1865. 

On  the  2d  day  of  January,  1865,  after  the  proceedings  of  the  military 
commission  were  at  an  end,  the  Circuit  Court  of  the  United  States 
for  Indiana  met  at  Indianapolis  and  empanelled  a  grand  jury,  who 
were  charged  to  inquire  whether  the  laws  of  the  United  States  had  been 
violated;  and,  if  so,  to  make  presentments.  The  court  adjourned  on 
the  27th  day  of  January,  having,  prior  thereto,  discharged  from  fur- 
ther service  the  grand  jury,  who  did  not  find  any  bill  of  indictment  or 
make  any  presentment  against  Milligan  for  any  offence  whatever;,  and, 
in  fact,  since  his  imprisonment,  no  bill  of  indictment  has  been  found  or 
presentment  made  against  him  by  any  grand  jury  of  the  United  States. 

Milligan  insists  that  said  military  commission  had  no  jurisdiction 
to  try  him  upon  the  charges  preferred,  or  upon  any  charges  whatever ; 
because  he  was  a  citizen  of  the  United  States  and  the  state  of  Indiana, 
and  had  not  been,  since  the  commencement  of  the  late  rebellion,  a 
resident  of  any  of  the  states  whose  citizens  were  arrayed  against  the 
government,  and  that  the  right  of  trial  by  jury  was  guaranteed  to  him 
by  the  Constitution  of  the  United  States. 

20  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Ch.  9)  OCCUPATION  ;  conquest  ;  martial  law  725 

The  prayer  of  the  petition  was,  that  under  tl^  act  of  Congress,  ap- 
proved March  3,  1863,  entitled  "An  act  relating  to  habeas  corpus  and 
regulating  judicial  proceedings  in  certain  cases,"  he  may  be  brought 
before  the  court,  and  either  turned  over  to  the  proper  civil  tribunal  to 
be  proceeded  against  according  to  the  law  of  the  land  or  discharged 
from  custody  altogether. 

With  the  petition  were  filed  the  order  for  the  commission,  the  charges 
and  specifications,  the  findings  of  the  court,  with  the  order  of  the  War 
Department  reciting  that  the  sentence  was  approved  by  the  President 
of  the  United  States,  and  directing  that  it  be  carried  into  execution  with- 
out delay.  The  petition  was  presented  and  filed  in  open  court  by  the 
counsel  for  Milligan;  at  the  same  time  the  District  Attorney  of  the 
United  States  for  Indiana  appeared,  and,  by  the  agreement  of  counsel, 
the  application  was  submitted  to  the  court.  The  opinions  of  the  judges 
of  the  Circuit  Court  were  opposed  on  three  questions,  which  are  certi- 
fied to  the  Supreme  Court ;     *     *     * 

3.  "Whether,  upon  the  facts  stated  in  said  petition  and  exhibits,  the 
military  commission  mentioned  therein  had  jurisdiction  legally  to  try 
and  sentence  said  Milligan  in  manner  and  form  as  in  said  petition  and 
exhibits  is  stated?"     *     *     * 

The  controlling  question  in  the  case  is  this :  Upon  the  facts  stated 
in.Milligan's  petition,  and  the  exhibits  filed,  had  the  military  commis- 
sion mentioned  in  it  jurisdiction,  legally,  to  try  and  sentence  him?  Mil- 
ligan, not  a  resident  of  one  of  the  rebellious  states,  or  a  prisoner  of  war, 
but  a  citizen  of  Indiana  for  twenty  years  past,  and  never  in  the  military 
or  naval  service,  is,  while  at  his  home,  arrested  by  the  militajy  power 
of  the  United  States,  imprisoned,  and,  on  certain  criminal  charges 
preferred  against  him,  tried,  convicted,  and  sentenced  to  be  hanged  by 
a  military  commission,  organized  under  the  direction  of  the  military 
commander  of  the  military  district  of  Indiana.  Had  this  tribunal  the 
legal  power  and  authority  to  try  and  punish  this  man  ?     *     *     * 

It  is  claimed  that  martial  law  covers  with  its  broad  mantle  the  pro- 
ceedings of  this  military  commission.  The  proposition  is  this :  that 
in  a  time  of  war  the  commander  of  an  armed  force  (if  in  his  opinion 
the  exigencies  of  the  country  demand  it,  and  of  which  he  is  to  judge), 
has  the  power,  within  the  lines  of  his  military  district,  to  suspend  all 
civil  rights  and  their  remedies,  and  subject  citizens  as  well  as  soldiers 
to  the  rule  of  his  will ;  and  in  the  exercise  of  his  lawful  authority  can- 
not be  restrained,  except  by  his  superior  officer  or  the  President  of 
the  United  States. 

If  this  position  is  sound  to  the  extent  claimed,  then  when  war  exists, 
foreign  or  domestic,  and  the  country  is  subdivided  into  military  de- 
partments for  mere  convenience,  the  commander  of  one  of  them  can, 
if  he  chooses,  within  his  limits,  on  the  plea  of  necessity,  with  the  ap- 
proval of  the  Executive,  substitute  military  force  for  and  to  the  ex- 
clusion of  the  laws,  and  punish  all  persons,  as  he  thinks  right  and 
proper,  without  fixed  or  certain  rules.     *     *     * 


726  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF  WAR         (Part  3 

It  will  be  borne  in  mind  that  this  is  not  a  question  of  the  power  to 
proclaim  martial  law,  when  war  exists  in  a  community  and  the  courts 
and  civil  authorities  are  overthrown.  Nor  is  it  a  question  what  rule 
a  military  commander,  at  the  head  of  his  army,  can  impose  on  states 
in  rebellion  to  cripple  their  resources  and  quell  the  insurrection.  The 
jurisdiction  claimed  is  much  more  extensive.  The  necessities  of  the 
service,  during  the  late  rebellion,  required  that  the  loyal  states  should 
be  placed  within  the  limits  of  certain  military  districts  and  commanders 
appointed  in  them ;  and,  it  is  urg-ed,  that  this,  in  a  military  sense,  con- 
stituted them  the  theatre  of  military  operations;  and,  as  in  this  case, 
Indiana  had  been  and  was  again  threatened  with  invasion  by  the 
enemy,  the  occasion  was  furnished  to  establish  martial  law.  The  con- 
clusion does  not  follow  from  the  premises.  If  armies  were  collected 
in  Indiana,  they  were  to  be  employed  in  another  locality,  where  the 
laws  were  obstructed  and  the  national  authority  disputed.  On  her 
soil  there  was  no  hostile  foot;  if  once  invaded,  that  invasion  was  at 
an  end,  and  with  it  all  pretext  for  martial  law.  Martial  law  cannot 
arise  from  a  threatened  invasion.  The  necessity  must  be  actual  and 
present;  the  invasion  real,  such  as  effectually  closes  the  courts  and 
deposes  the  civil  administration. 

It  is  difficult  to  see  how  the  safety  of  the  country  required  martial 
law  in  Indiana.  If  any  of  her  citizens  were  plotting  treason,  the  pow- 
er of  arrest  could  secure  them,  until  the  government  was  prepared  for 
their  trial,  when  the  courts  were  open  and  ready  to  try  them.  It  was 
as  easy  to  protect  witnesses  before  a  civil  as  a  military  tribunal ;  and 
as  there  could  be  no  wish  to  convict,  except  on  sufficient  legal  evi- 
dence, surely  an  ordained  and  established  court  was  better  able  to 
judge  of  this  than  a  military  tribunal  composed  of  gentlemen  not 
trained  to  the  profession  of  the  law. 

It  follows,  from  what  has  been  said  on  this  subject,  that  there  are 
occasions  when  martial  rule  can  be  properly  applied.  If,  in  foreign 
invasion  or  civil  war,  the  courts  are  actually  closed,  and  it  is  impossible 
to  administer  criminal  justice  according  to  law,  then,  on  the  theatre 
of  active  military  operations,  where  war  really  prevails,  there  is  a  ne- 
cessity to  furnish  a  substitute  for  the  civil  authority,  thus  overthrown, 
to  preserve  the  safety  of  the  army  and  society;  and  as  no  power  is 
left  but  the  military,  it  is  allowed  to  govern  by  martial  rule  until  the 
laws  can  have  their  free  course.  As  necessity  creates  the  rule,  so  it 
limits  its  duration ;  for,  if  this  government  is  continued  after  the 
courts  are  reinstated,  it  is  a  gross  usurpation  of  power.  Martial  rule 
can  never  exist  where  the  courts  are  open,  and  in  the  proper  and  un- 
obstructed e±ercise  of  their  jurisdiction.  It  is  also  confined  to  the  lo- 
cality of  actual  war.  Because,  during  the  late  rebellion  it  could  have 
been  enforced  in  Virginia,  where  the  national  authority  was  over- 
turned and  the  courts  driven  out,  it  does  not  follow  that  it  should  ob- 
tain in  Indiana,  where  that  authority  was  never  disputed,  and  justice 


Ch.9)         occupation;  conquest;  MARTIAL  LAW  727 

was  always  administered.  And  so  in  the  case  of  a  foreign  invasion, 
martial  rule  may  become  a  necessity  in  one  state,  when,  in  another,  it 
would  be  "mere  lawless  violence." 

We  are  not  without  precedents  in  English  and  American  history  il- 
lustrating our  views  of  this  question;  but  it  is  hardly  necessary  to 
make  particular  reference  to  them. 

From  the  first  year  of  the  reign  of  Edward-  the  Third,  when  the 
Parliament  of  England  reversed  the  attainder  of  the  Earl  of  Lan- 
caster, because  he  could  have  been  tried  by  the  courts  of  the  realm, 
and  declared,  "that  in  time  of  peace  no  man  ought  to  be  adjudged  to 
death  for  treason  or  any  other  offence  without  being  arraigned  and 
held  to  answer;  and  that  regularly  when  the  king's  courts  are  open 
it  is  a  time  of  peace  in  judgment  of  law,"  down  to  the  present  day, 
martial  law,  as  claimed  in  this  case,  has  been  condemned  by  all  re- 
spectable English  jurists  as  contrary  to  the  fundamental  laws  of  the 
land,  and  subversive  of  the  liberty  of  the  subject. 

During  the  present  century,  an  instructive  debate  on  this  question 
occurred  in  Parliament,  occasioned  by  the  trial  and  conviction  by 
court-martial,  at  Demerara,  of  the  Rev.  John  Smith,  a  missionary  to 
the  negroes,  on  the  alleged  ground  of  aiding  and  abetting  a  formid- 
able rebellion  in  that  colony.  Those  eminent  statesmen.  Lord  Broug- 
ham and  Sir  James  Mackintosh,  participated  in  that  debate ;  and 
denounced  the  trial  as  illegal ;  because  it  did  not  appear  that  the  courts 
of  law  in  Demerara  could  not  try  offences,  and  that  "when  the  laws 
can  act,  every  other  mode  of  punishing  supposed  crimes  is  itself  an 
enormous  crime." 

So  sensitive  were  our  Revolutionary  fathers  on  this  subject,  al- 
though Boston  was  almost  in  a  state  of  siege,  when  General  Gage  is- 
sued his  proclamation  of  martial  law,  they  spoke  of  it  as  an  "attempt 
to  supersede  the  course  of  the  common  law,  and  instead  thereof  to 
publish  and  order  the  use  of  martial  law."  The  Virginia  Assembly, 
also,  denounced  a  similar  measflre  on  the  part  of  Governor  Dunmore 
"as  an  assumed  power,  which  the  king  himself  cannot  exercise;  be- 
cause it  annuls  the  law  of  the  land  and  introduces  the  most  execrable 
of  all  systems,  martial  law." 

In  some  parts  of  the  country,  during  the  War  of  1812,  our  officers 
made  arbitrary  arrests  and,  by  military  tribunals,  tried  citizens  who 
were  not  in  the  military  service.  These  arrests  and  trials,  when  brought 
to  the  notice  of  the  courts,  were  uniformly  condemned  as  illegal.  The 
cases  of  Smith  v.  Shaw  and  McConnell  v.  Plampton  (reported  in  12 
Johns.  [N.  Y.]  257  and  234)  are  illustrations,  which  we  cite,  not  only 
for  the  principles  they  determine,  but  on  account  of  the  distinguished 
jurists  concerned  in  the  decisions,  one  of  whom  for  many  years  oc- 
cupied a  seat  on  this  bench. 

It  is  contended  that  Luther  v.  Borden,  7  How.  1,  12  L.  Ed.  581,  de- 
cided by  this  court,  is  an  authority  for  the  claim  of  martial  law  ad- 


728  BIGHTS  AND   DUTIES  OP   NATIONS  IN  TIME   OF   WAR         (Part  3 

vanced  in  this  case.  The  decision  is  misapprehended.  That  case 
grew  out  of  the  attempt  in  Rhode  Island  to  supersede  the  old  colonial 
government  by  a  revolutionary  proceeding.  Rhode  Island,  until  that 
period,  had  no  other  form  of  local  government  than  the  charter  grant- 
ed by  King  Charles  II,  in  1663 ;  and  as  that  limited  the  right  of  suf- 
frage, and  did  not  provide  for  its  own  amendment,  many  citizens  be- 
came dissatisfied,  because  the  legislature  would  not  afford  the  relief 
in  their  power ;  and  without  the  authority  of  law,  formed  a  new  and 
independent  constitution,  and  proceeded  to  assert  its  authority  by  force 
of  arms.  The  old  government  resisted  this ;  and  as  the  rebellion  was 
formidable,  called  out  the  militia  to  subdue  it,  and  passed  an  act  de- 
claring martial  law.  Borden,  in  the  military  service  of  the  old  gov- 
ernment, broke  open  the  house  of  Luther,  who  supported  the  new,  in 
order  to  arrest  him.  Luther  brought  suit  against  Borden ;  and  the 
question  was,  whether,  under  the  constitution  and  laws  of  the  state, 
Borden  was  justified.  This  court  held  that  a  state  "may  use  its  mili- 
tary power  to  put  down  an  armed  insurrection  too  strong  to  be  con- 
trolled by  the  civil  authority ;"  and,  if  the  legislature  of  Rhode  Island 
thought  the  peril  so  great  as  to  require  the  use  of  its  military  forces 
and  the  declaration  of  martial  law,  there  was  no  ground  on  which  this 
court  could  question  its  authority;  and  as  Borden  acted  under  mili- 
tary orders  of  the  charter  government,  which  had  been  recognized  by 
the  political  power  of  the  country,  and  was  upheld  by  the  state  judi- 
ciary, he  was  justified  in  breaking  into  and  entering  Luther's  house. 
This  is  the  extent  of  the  decision.  There  was  no  question  in  issue 
about  the  power  of  declaring  martial  law  under  the  federal  Constitu- 
tion, and  the  court  did  not  consider  it  necessary  even  to  inquire  "to 
what  extent  nor  under  what  circumstances  that  power  may  be  exer- 
cised by  a  state." 

We  do  not  deem  it  important  to  examine  further  the  adjudged  cases ; 
and  shall,  therefore,  conclude  without  any  additional  reference  to 
authorities. 

To  the  third  question,  then,  on  which  the  judges  below  were 
opposed   in   opinion,    an   answer   in   the   negative    must   be    return- 

g^         *       *       *  21 

21  Chief  Justice  Chase  delivered  an  opinion,  in  which  Justices  Wayne. 
Swayne,  and  Miller  concurred,  holding,  first,  that  the  writ  of  habeas  corpus 
should  issue;  second,  that  Milligan  should  be  discharged  according  to  the 
prayer  of  the  petition ;  third,  that  the  military  commission  in  Indiana  did 
not  have,  under  the  facts  stated,  jurisdiction  to  try  and  sentence  the  plain- 
tiff. The  Chief  Justice  and  the  three  Associate  Justices  concurring  with  him 
were  of  the  opinion  that  "Congress  had  pow"er,  though  not  exercised,  to  au- 
thorize the  military  commission  which  was  held  in  Indiana." 

In  15  Harvard  Law  Review,  (1902),  851  note,  it  is  said:  "The  Supreme 
Court  of  the  United  States  has  said  [in  Ex  parte  Milligan,  4  Wall.  2,  18  K 
Ed.  281  (1866)  supra]  that  the  continued  sitting  of  the  ordinary  courts,  and 
the  absence  of  visible  disorder,  absolutely  preclude  a  lawful  exercise  of  mar- 
tial law.  The  Judicial  Committee  of  the  Privy  Council  talies  an  opposite  view. 
It  is  submitted  that  the  latter  view  is  preferable.     Under  modern  conditions 


Ch.  9)  OCCUPATION  ;  conquest  ;  martial  law  729 


MARAIS  V.  THE  GENERAL  OFFICER  COMMANDING  THE 

LINES  OF  COMMUNICATION  AND  THE  ATTORNEY 

GENERAL  OF  THE  COLONY. 

Ex  parte  MARAIS. 
(Privy  Council,  1901.     L.  R.  [1902]  App.  Cas.  109.) 

This  was  a  petition  for  special  leave  to  appeal  from  the  order  of 
the  Supreme  Court  set  out  in  their  Lordships'  judgment. 

It  stated  the  petitioner's  arrest  on  August  15,  1901,  by  the  chief  con- 
stable of  the  town  of  Paarl,  about  thirty-five  miles  from  Cape  Town, 
who  had  no  warrant,  and  did  not  know  the  cause  of  arrest,  but  alleged 
that  he  was  acting  under  instructions  from  the  military  authorities ; 
that  on  August  18  he  and  his  fellow  prisoners  were  removed  300  miles 
to  the  town  of  Beaufort  West,  and  on  their  arriva^l  were  detained  in 
custody;  that  on  September  6  he  petitioned  the  Supreme  Court  in 
Cape  Town  to  release  him  on  the  ground  that  his  arrest  and  imprison- 
ment were  in  violation  of  the  fundamental  liberties  secured  to  the  sub- 
jects of  His  Majesty,  when  it  appeared  from  an  affidavit  sworn  by 
the  gaoler  of  Beaufort  West  that  the  petitioner  was  detained  by  an 
order  of  the  military  authorities  dated  September  8  for  contravening 
Martial  Law  Regulations,  par.  14,  §  2,  of  May  1,  1901.  The  regula- 
tions are  set  out  in  the  reasons  given  by  their  Lordships. 

Buchanan,  J.,  in  refusing  the  application,  was  stated  in  the  peti- 
tion to  have  held  that  martial  law  had  been  proclaimed  in  the  districts 
both  of  the  Paarl  and  of  Beaufort  West,  that  the  court  ought  not  to 
go  into  the  necessity  for  that  proclamation  nor  accept  any  responsibihty 
for  the  acts  of  the  military  authorities  performed  in  pursuance  of  it, 
though  if  the  petitioner  had  not  been  removed  from  the  Paarl  the 
court  might  have  inquired  into  the  necessity  for  martial  law  in  that 
district,  that  the  petitioner  was  held  in  custody  by  an  officer  acting 
under  the  military  authorities,  and  that  the  court  could  not  exercise 
jurisdiction  over  the  petitioner  so  long  as  martial  law  lasted.  In  his 
petition  the  petitioner  contended  that  he  had  committed  no  crime,  other- 
wise that  he  should  have  been  arrested  and  tried  according  to  law,  thai 
the  civil  courts  were  open  for  his  trial,  that  Buchanan,  J.,  himself,  was 
announced  to  sit  for  the  trial  of  all  offenders  in  the  district  of  Paarl 
on  August  27,  1901,  that  his  arrest,  deportation,  and  confinement  in  cus- 
tody by  the  military  authorities  were  wholly  illegal,  and  that  he  was 
entitled  to  his  immediate  discharge. 

it  cannot  truly  be  said  that  ttie  absence  of  visible  disorder  shows  there  is  no 
necessity  for  martial  law.  The  continued  sitting  of  courts  is  too  artificial  a 
test  to  be  serviceable.  Martial  law  is  the  law  of  neces^ty.  The  executive 
must  be  left  unhampered  in  time  of  war  to  deal  with  problems  summarily 
and  to  take  protective  measures  without  waiting  for  the  machinery  of  the 
courts." 


730  RIGHTS  AND   DUTIES  OF  NATIONS  IN  TIME   OP  WAR         (Part  3 

Haldane,  K.  C,  and  Mackarness,  for  the  petitioner,  submitted  that 
leave  should  be  given,  for  the  question  of  law  involved  was  of  sub- 
stantial importance.  The  special  feature  of  the  case  was  that  the  dis- 
trict where  the  arrest  was  made  was  undisturbed,  and  that  civil  courts 
were  still  exercising  uninterrupted  jurisdiction.  That  being  so,  and  it 
appearing  that  the  ordinary  course  of  law  could  be  and  was  being  main- 
tained, a  state  of  war  did  not  exist,  and  martial  law  in  that  case  could 
not  be  applied  to  civilians.  Even  if  a  state  of  war  did  exist,  still  the 
application  of  martial  law  was  limited  by  the  necessity  of  preserving 
peace  and  order  in  the  district,  and  did  not  oust  the  jurisdiction  of 
those  civil  courts  which,  notwithstanding  the  pressure  of  military  cir- 
cumstances, were  still  administering  the  law  of  the  land.  There  was 
no  necessity  alleged  or  shewn  for  bringing  the  petitioner  before  a  mil- 
itary tribunal  whilst  a  civil  court  was  sitting.  The  right  of  the  crown 
to  resort  to  such  an  extremity  as  the  proclamation  of  martial  law  was 
limited  by  necessity,  and,  if  a  civil  court  was  open,  the  crown  had  no 
power  to  try  an  offender  by  a  military  one.  [The  Lord  Chancellor  re- 
ferred to  Sutton  V.  Johnston  (1786)  1  T.  R.  493,  1  R.  R.  257.]  That 
case  only  establishes  that,  on  grounds  of  public  policy,  a  superior  of- 
ficer cannot  be  sued  by  an  inferior  for  the  consequences  of  an  act  done  , 
in  the  course  of  duty  or  discipline,  even  though  done  maliciously.  And 
see  the  dictum  of  Lord  Mansfield,  C.  J.,  to  the  effect  that  no  case  can 
occur  of  overpowering  necessity  in  a  well-ordered  country  with  a  reg- 
ular government.  Even  in  a  remote  dependency  it  must  be  extreme 
and  imminent.     *     *     * 

Dec.  18.  The  reasons  for  their  Lordships'  report  that  the  petition 
should  be  refused  were  delivered  by 

Tut  Lord  Chancellor.^^  This  was  a  petition  by  D.  F.  Marais  for 
special  leave  to  appeal  against  a  decision  of  the  courts  in  Cape  Col- 
ony which  had  refused  to  release  him  from  an  arrest  effected  by  the 
military  forces  of  the  crown  on  August  15  last.     *     *     * 

From  the  petitioner's  affidavit  it  appears  that  the  ground  of  his  ar- 
rest was  stated  in  an  affidavit  by  Major  General  Wynne,  that  in  the 
opinion  of  the  military  authorities  there  were  military  reasons  that  the 
petitioner  should  be  removed  and  kept  in  custody. 

All  the  persons  arrested  were,  as  appeared  by  the  warrant  under 
which  they  were  arrested,  charged  with  contravening  what  were  called 
"Martial  Law  Regulations,"  which  regulations  are  set  out  in  the  peti- 
tioner's affidavit  as  follows: 

"No.  14.  Rebellion,  Dealings  with  Enemy,  etc.  Notice  is  hereby 
given  that  from  and  after  the  22d  April,  1901,  all  subjects  of  His  Maj- 
esty and  all  persons  residing  in  Cape  Colony  who  shall  in  districts  there- 
of in  which  martial  law  prevails : 

"(1)  Be  actively  in  arms  against  His  Majesty,  or 

22  Part  of  the  opinion  is  omitted. 


Ch.  9)  OCCUPATION ;  conquest  ;  martial  law  731 

"(2)  Directly  incite  others  to  take  up  arms  against  His  Majesty,  or 

"(3)  Actively  aid  or  assist  the  enemy,  or 

"(4)  Commit  any  overt  act  by  which  the  safety  of  His  Majesty's 
forces  or  subjects  are  endangered 

— shall  immediately  on  arrest  be  tried  by  a  military  court  convened  by 
authority  of  the  General  Commanding-in-Chief  of  His  Majesty's  Forces 
in  South  Africa,  and  shall  on  conviction  be  liable  to  the  severest  pen- 
alties. These  penalties  include  death,  penal  servitude,  imprisonment  and 
fine. 

"Any  person  reasonably  suspected  of  such  offence  is  liable  to  be  ar- 
rested without  warrant,  or  sent  out  of  the  district,  to  be  hereafter  dealt 
with  by  a  military  court." 

Under  these  circumstances  their  Lordships  were  appealed  to,  to  give 
special  leave  to  appeal,  and  Mr.  Haldane,  on  behalf  of  the  petitioner, 
was  fully  heard  on  November  5  last. 

The  only  ground  susceptible  of  argument  urged  by  the  learned  coun- 
sel was  that  whereas  some  of  the  courts  were  open  it  was  impossible 
to  apply  the  ordinary  rule  that  where  actual  war  is  raging  the  civil 
courts  have  no  jurisdiction  to  deal  with  military  action,  but  where  acts 
of  war  are  in  question  the  military  tribunals  alone  are  competent  to 
deal  with  such  questions. 

The  question  was  as  fully  argued  before  their  Lordships  by  the 
learned  counsel  as  it  could  have  been  argued  if  leave  to  appeal  had  been 
given,  and  their  Lordships  did  not  think  it  right  to  suggest  any  doubt 
upon  the  law  by  giving  special  leave  to  appeal  where  the  circumstances 
render  the  law  clear.  They  are  of  opinion  that  where  actual  war  is 
raging  acts  done  by  the  military  authorities  are  not  justiciable  by  the 
ordinafy  tribunals,  and  that  war  in  this  case  was  actually  raging,  even 
if  their  Lordships  did  not  take  judicial  notice  of  it,  is  sufficiently  evi- 
denced by  the  facts  disclosed  by  the  petitioner's  own  petition  and  af- 
fidavit. 

Martial  law  had  been  proclaimed  over  the  district  in  which  the  peti- 
tioner was  arrested  and  the  district  to  which  he  was  removed.  The 
fact  that  for  some  purposes  some  tribunals  had  been  permitted  to  pur- 
sue their  ordinary  course  is  not  conclusive  that  war  was  not  raging. 
That  question  came  before  the  Privy  Council  as  long  ago  as  the  year 
1830,  in  Elphinstone  v.  Bedreechund,  1  Knapp,  P.  C.  316.     *     *     * 

The  truth  is  that  no  doubt  has  ever  existed  that  where  war  actually 
prevails  the  ordinary  courts  have  no  jurisdiction  over  the  action  of 
the  military  authorities.  Doubtless  cases  of  difficulty  arise  when  the 
fact  of  a  state  of  rebellion  or  insurrection  is  not  clearly  established. 

It  may  often  be  a  question  whether  a  mere  riot,  or  disturbance  nei- 
ther so  serious  nor  so  extensive  as  really  to  amount  to  a  war  at  all, 
has  not  been  treated  with  an  excessive  severity,  and  whether  the  in- 
tervention of  the  military  force  was  necessary ;  but  once  let  the  fact 
of  actual  war  be  established,  and  there  is  an  universal  consensus  of 


732  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   WAR         (Part  3 

opinion  that  the  civil  courts  have  no  jurisdiction  to  call  in  question  the 
propriety  of  the  action  of  military  authorities.     *     *     * 

For*  these  reasons  their  Lordships  advised  His  Majesty  to  refuse 
leave  to  appeal.'^' 

2  3  The  principal  case  has  created  much  comment,  and  a  wide  difference  of 
opinion  exists  as  to  the  nature  and  extent  of  martial  law. 

For  a  discussion  of  martial  law  as  applied  in  the  Marais  Case,  see  18  Law 
Quarterly  Review  (1902),  containing  W.  S.  Holdsworth's  article  entitled 
"Martial  Law  Historically  Considered,"  pp.  117-132;  Sir  H.  Erie  Richards' 
"Martial  Law,"  pp.  1.33-142 ;  Cyril  Dodd's  "Case  of  Marais,"  pp.  143-151 ;  Sir 
Frederick  Pollock's  "What  is  Martial  Law?"  pp.  152-158. 

See,  also,  A.  V.  Dicey's  Introduction  to  the  Study  of  the  Law  of  the  Consti- 
tution (8th  Ed.  1915),  "Martial  Law  in  England  During  Time  of  War  or  In- 
surrection," Appendix,  note  X,  538-555. 


Ch.  10)  ANGARY  733 

CHAPTER  X 
ANGARY 1 


THE  ZAMORA. 

(Privy  Council,  1916.     L.  R.  [1916]  2  App.  Cas.  77.) 

The  judgment  of  their  Lordships  was  delivered  by 
Lord  Parker  of  Waddington.  *  *  *  2  j^  remains  to  con- 
sider the  third,  and  perhaps  the  most  difficult,  question  which  arises 
on  this  appeal — the  question  whether  the  crown  has,  independently 
of  Order  XXIX,  r.  1,  any  and  what  right  to  requisition  vessels  or 
goods  in  the  custody  of  the  Prize  Court  pending  the  decision  of  the 
court  as  to  their  condemnation  or  release.  In  arguing  this  question 
the  Attorney  General  again  laid  considerable  stress  on  the  crown's  pre- 
rogative, referring  to  the  recent  decision  of  the  Court  of  Appeal  in 
this  country  in  In  re  A  Petition  of  Right,  [1915]  3  K.  B.  649.  There 
is  no  doubt  that  under  certain  circumstances  and  for  certain  purposes 
the  Crown  may  requisition  any  property  within  the  realm  belonging 

1  In  The  Diplomatic  Protection  of  Citizens  Abroad  or  the  Law  of  Interna- 
tional Claims  (1916^,  Professor  Edwin  M.  Borchard  thus  defines  "angary": 

"The  right  of  belligerents  in  case  of  necessity,  for  belligerent  purposes,  to 
detain,  use,  or  even  destroy  neutral  property  not  vested  with  enemy  character 
is  known  as  the  right  of  angary,  a  modern  development  of  the  former  jus 
angarise.  The  payment  of  indemnity  is  a  necessary  condition  of  such  use  of 
neutral  property.  The  application  of  this  rule  has  generally  arisen  through 
the  detention,  use  or  destruction  of  neutral  vessels  temporarily  in  the  ports 
of  a  belligerent."    pp.  266-7. 

In  a  footnote  to  the  above  passage  the  learned  author  cites  the  following 
authorities : 

"T.abuan  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3791;  Ophir  (U.  S.) 
v.  Mexico,  April  11,  1839,  Id.  3045;  Brig  Splendid  (U.  S.)  v.  Mexico,  Id.  3714; 
Kidder  (U.  S.)  v.  Mexico,  March  3,  1849,  Opin.  519  (not  in  Moore) ;  Orr  and 
Laubenhermer  (U.  S.)  v.  Nicaragua,  March  22.  1900,  For.  Rel.  1900,  824.  829 ; 
The  Moshona  and  the  Beatrice  (U.  S.)  v.  Great  Britain,  For.  Rel.  1900,  529-618 ; 
The  Tabasqueno  v.  U.  S..  For.  Rel.  1907  [1908]  614  (neutral  cargo  is  in  the 
same  position  as  the  neutral  vessel) ;  U.  S.  v.  Rlussell,  13  Wall.  623,  20  L.  Ed. 
474  (1871),  implied  contract  in  municipal  law.  See  the  celebrated  case  of  the 
sinking  by  German  troops  of  British  vessels  in  the  Seine,  1870,  in  which  in- 
demnity was  paid.    61  St.  Pap.  575,  600,  611,  and  Moore's  Dig.  VI,  904." 

See  the  elaborate  monograph  by  Erich  Albrecht,  entitled  "Requisitionen  von 
neutralem  Privateigentum,  insbesondere  von  Schiffen,"  Zeitsehrift  fiir  ^'61- 
kerrecht  und  Bundesstaatsrecht,  Supplement  1  to  Volume  VI  (1912),  English 
translation  in  "Memorandum  of  Authorities  on  the  Law  of  Angary,"  by  Theo- 
dore Henckels  and  Henry  G.  Crocker,  pp.  1-57  (1919) ;  and  the  admirable 
article  by  J.  Eugene  Harley  on  "The  Law  of  Angary,"  13  American  Journal 
of  International  Law,  267-SOl  (1919).  See  the  "Memorandum  of  Authorities 
on  the  Law  of  Angary"  also  for  a  collection  of  the  views  of  writers,  official 
documents,  and  a  bibliography  on  the  subject. 

-  For  the  facts  of  this  case,  see  post,  p.  1052.  Only  the  portion  of  the  opin- 
ion relating  to  the  law  of  angai-y  and  requisition  is  here  printed. 


734  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF  WAR         (Part  3 

to  its  own  subjects.  But  this  right  being  one  conferred  by  municipal 
law  is  not,  as  such,  enforceable  in  a  court  which  administers  inter- 
national law.  The  fact,  however,  that  the  crown  possesses  such  a  i  ight 
in  this  country,  and  that  somewhat  similar  rights  are  claimed  by  most 
civilized  nations,  may  well  give  rise  to  the  expectation  that,  at  any 
rate  in  times  of  war,  some  right  on  the  part  of  a  belligerent  power 
to  requisition  the  goods  of  neutrals  within  its  jurisdiction  will  be 
found  to  be  recognized  by  international  usage.  Such  usage  might  be 
expected  either  to  sanction  the  right  of  each  countiy  to  apply  in  this 
respect  its  own  municipal  law,  or  to  recognize  a  similar  right  of  inter- 
national obligation. 

In  support  of  the  former  alternative,  which  is  apparently  accepted 
by  Albrecht  (Zeitschrift  fiir  Volkerrecht  und  Bundesstaatsrecht,  VI 
Band,  Breslau,  1912),^  it  may  be  argued  that  the  mere  fact  of  the 
propert}^  of  neutrals  being  found  within  the  jurisdiction  of  a  bellig- 
erent power  ought,  according  to  international  law,  to  render  it  sub- 
ject to  the  municipal  law  of  that  jurisdiction.  The  argument  is  cer- 
tainly plausible  and  may  in  certain  cases  and  for  some  purposes  be 
sound.  In  general,  property  belonging  to  the  subject  of  one  power  is 
not  found  within  territory  of  another  power  without  the  consent  of 
the  true  owner,  and  this  consent  may  well  operate  as  a  submission  to 
the  municipal  law.  A  distinction  may  perhaps  be  drawn  in  this  re- 
spect between  property  the  presence  of  which  within  the  jurisdiction 
is  of  a  permanent  nature  and  property  the  presence  of  which  within 
the  jurisdiction  is  temporary  only.  The  goods  of  a  foreigner  carry- 
ing on  business  here  are  not  in  the  same  position  as  a  vessel  using  an 
English  port  as  a  port  of  call.  Even  in  the  latter  case,  however,  it  is 
clear  that  for  some  purposes,  as,  for  example,  sanitary  or  police  regu- 
lations, it  would  become  subject  to  the  lex  loci.  After  all,  no  vessel 
is  under  ordinary  circumstances  under  any  compulsion  to  come  within 
the  jurisdiction.  Different  considerations  arise  with  regard  to  a  vessel 
brought  within  the  territorial  jurisdiction  in  exercise  of  a  right  of  war. 
In  the  latter  case  there  is  no  consent  of  the  owner  or  of  any  one  whose 
consent  might  impose  obligations  on  the  owner.  Nevertheless,  even 
here,  the  vessel  might  well  for  police  and  sanitary  purposes  become 
subject  to  the  municipal  law.  To  hold,  however,  that  it  became  sub- 
ject for  all  purposes,  including  the  municipal  right  of  requisition, 
would  give  rise  to  various  anomalies. 

The  municipal  law  of  one  nation  in  respect  of  the  right  to  requisi- 
tion the  property  of  its  subjects  differs,  or  may  differ,  from  that  of 
another  nation.  The  circumstances  under  which,  the  purposes  for 
which,  and  the  conditions  subject  to  which  the  right  may  be  exer- 
cised need  not  be  the  same.  The  municipal  law  of  this  country  does 
not  give  compensation  to  a  subject  whose  land  or  goods  are  requisi- 

3  For  an  Enslish  translation  of  this  important  monograph,  see  "Memoran- 
dum of  Authorities  on  the  Law  of  Angary,"  by  Theodore  Henckels  and  Henry 
G.  Crocker,  pp.  1-57  (1919). 


Ch.  10)  ANGARY  735 

tioned  by  the  crown.  The  municipal  law  of  other  nations  may  insist 
on  compensation  as  a  condition  of  the  right.  The  circumstances  and 
purposes  under  and  for  which  the  right  can  be  exercised  may  similarly 
vary.  It  would  be  anomalous  if  the  international  law  by  which  all 
nations  are  bound  could  only  be  ascertained  by  an  inquiry  into  the 
municipal  law  which  prevails  in  each.  It  would  be  a  still  greater  anom- 
aly if  in  times  of  war  a  belligerent  could,  by  altering  his  municipal  law 
in  this  respect,  affect  the  rights  of  other  nations  or  their  subjects.  The 
authorities  point  to  the  conclusion  that  international  usage  has  in  this 
respect  developed  a  law  of  its  own,  and  has  not  recognized  the  right 
of  each  nation  to  apply  its  own  municipal  law. 

The  right  of  a  belligerent  to  requisition  the  goods  of  neutrals  found 
within  its  territory  or  territory  of  which  it  is  in  military  occupation, 
is  recognized  by  a  number  of  writers  on  international  law.  It  is  some- 
times referred  to  as  the  right  of  angary,  and  is  generally  recognized 
as  involving  an  obligation  to  make  full  compensation.  There  is,  how- 
ever, much  difference  of  opinion  as  to  the  precise  circumstances  under 
which  and  the  precise  purposes  for  which  it  may  be  lawfully  exer- 
cised. It  was  exercised  by  Germany  during  the  Franco-German  war 
of  1870  in  respect  of  property  belonging  to  British  and  Austrian  sub- 
jects. The  German  military  authorities  seized  certain  British  ships 
and  sunk  them  in  the  Seine.  They  also  seized  certain  Austrian  rolling 
stock  and  utilized  it  for  the  transport  of  troops  and  munitions  of  war. 
The  German  government  offered  full  compensation,  and  its  action  was 
not  made  the  subject  of  diplomatic  protest,  at  any  rate  by  Great  Brit- 
ain. In  justifying  the  action  of  the  military  authorities  with  regard  to 
the  British  ships,  Count  von  Bismarck  laid  stress  on  the  fact  ''that  a 
pressing  danger  was  at  hand  and  every  other  method  of  meeting  it 
was  wanting,  so  that  the  case  was  one  of  necessity,"  and  he  referred  to 
Phillimore's  International  Law  (3d  Ed.)  vol.  3,  §  29.  He  did  not  rely 
on  the  municipal  law  of  either  France  or  Germany. 

On  reference  to  Phillimore  it  will  be  found  that  he  limits  the  right 
to  cases  of  "clear  and  overwhelming  necessity."  In  this  he  agrees 
with  De  Martens,  who  speaks  of  the  right  existing  only  in  cases  of 
"extreme  necessity"  (Law  of  Nations,  book  VI,  §  7),  and  with  Gess- 
ner,  who  says  the  necessity  must  be  real ;  that  there  must  be  no  other 
means  less  violent  "de  sauver  I'existence,"  and  that  neither  the  desire 
to  injure  the  enemy  nor  tlie  greatest  degree  of  convenience  to  the  bel- 
ligerent is  sufficient  (Le  Droit  des  Neutres,  p.  154  [2d  Ed.,  Berlin, 
1876]).  It  is  difficult  to  see  how  the  acts  of  the  German  government 
to  which  reference  has  been  made  come  within  the  limits  thus  laid 
down.  It  might  have  been  convenient  to  Germany  and  hurtful  to 
France  to  sink  English  vessels  in  the  Seine  or  to  utilize  Austrian  roll- 
ing stock  for  transport  purposes,  but  clearly  no  extreme  necessity  in- 
volving actual  existence  had  arisen.  Azuni,  on  the  other  hand  (Droit 
Maritime  de  I'Europe,  vol.  1,  c.  Ill,  art.  5,  p.  292),  thought  that  an  ex- 
ercise of  the  right  would  be  justified  by  necessity  or  public  utility;   in 


736  RIGHTS   AND   DUTIES  OF  NATIONS  IN  TIME  OP   WAR         (Part  3 

Other  words,  that  a  very  high  degree  of  convenience  to  the  belligereni 
Power  would  be  sufficient.  Germany  must  be  taken  to  have  asserted 
and  England  and  Austria  to  have  acquiesced  in  the  latter  view,  which 
is  the  view  taken  by  Bluntschli  (Droit  International,  §  795  bis),  and  in 
the  only  British  prize  decision  dealing  with  this  point. 

The  case  to  which  their  Lordships  refer  is  that  of  The  Curlew, 
The  Magnet,  etc.,  Stewart's  Vice  Adm.  Rep.  (Nova  Scotia)  312.  The 
ships  in  question,  with  their  cargoes,  had  been  seized  by  the  British 
authorities  as  prize  in  the  early  days  of  the  war  with  the  United  States 
of  America,  which  broke  out  in  1812,  and  had  been  brought  into  port 
for  adjudication.  The  Lieutenant  Governor  of  the  province  and  the 
Admiral  and  Commander-in-Chief  of  His  Majesty's  ships  on  that 
station  thereupon  presented  a  petition,  for  leave  to  requisition  some  of 
the  ships  and  parts  of  the  cargoes  pending  adjudication.  In  his  judg- 
ment Dr.  Croke  lays  it  down  that  though  as  a  rule  the  court  has  no 
power  of  selling  or  bartering  vessels  or  goods  in  its  custody,  prior  to 
adjudication,  to  any  departments  of  His  Majesty's  service,  neverthe- 
less there  may  be  cases  of  necessity  in  which  the  right  of  self-defence 
supersedes  and  dispenses  with  the  usual  modes  of  procedure.  He 
held  that  such  a  case  had  in  fact  arisen,  and  accordingly  granted  the 
prayer  of  the  petitioners:  (1)  As  to  certain  small  arms  "very  much 
and  immediately  needed  for  the  defence  of  the  province" ;  (2)  as  to 
certain  oak  timbers  of  which  there  was  "great  want"  in  His  Majesty's 
naval  yard  at  Halifax;  and  (3)  as  to  a  vessel  immediately  required 
for  use  as  a  prison  ship.  The  appraised  value  of  the  property  requisi- 
tioned was  in  each  case  ordered  to  be  brought  into  court. 

It  should  be  observed  that  with  regard  to  ships  and  goods  of  neu- 
trals in  the  custody  of  the  Prize  Court  for  adjudication  there  are  spe- 
cial reasons  which  render  it  reasonable  that  the  belligerent  should  in 
a  proper  case  have  the  power  to  requisition  them.  The  legal  prop- 
erty or  dominion  is,  no  doubt,  still  in  the  neutral,  but  ultimate  con- 
demnation will  vest  it  in  the  crown,  as  from  the  date  of  the  seizure  as 
prize,  and  meanwhile  all  beneficial  enjoyment  is  suspended.  In  cases 
where  the  ships  or  the  goods  are  required  for  immediate  use,  this  may 
well  entail  hardship  on  the  party  who  ultimately  establishes  his  title. 
To  mitigate  the  hardship  in  the  case  of  a  ship  a  custom  has  arisen  of 
releasing  it  to  the  claimant  on  bail,  that  is,  on  giving  security  for  the 
payment  of  its  appraised  value.  It  may  well  be  that  in  practice  this 
was  never  done  without  the  consent  of  the  crown,  but  such  consent 
would  not  be  likely  to  be  withheld,  unless  the  crown  itself  desired  to 
use  the  ship  after  condemnation.  The  twenty-fifth  section  of  the 
Naval  Prize  Act,  1864,  now  confers  on  the  judge  full  discretion  in 
the  matter.  This  being  so,  it  is  not  unreasonable  that  the  crown  on  its 
side  should  in  a  proper  case  have  power  to  requisition  either  vessel 
or  goods  for  the  national  safety.  It  must  be  remembered  that  the 
neutral  may  obtain  compensation  for  loss  suffered  by  reason  of  an 
improper  seizure  of  his  vessel  or  goods,  but  the  crown  can  never  ob- 


Ch.  10)  ANGARY  737 

tain  compensation  from  the  neutral  in  respect  of  loss  occasioned  by  a 
claim  to  release  which  ultimately  fails. 

The  power  in  question  was  asserted  by  the  United  States  of  Amer- 
ica in  the  Civil  War  which  broke  out  in  1861.  In  The  Memphis, 
Blatchford,  P.  C.  202,  in  The  Ella  Warley,  Id.  204,  and  in  The  Ste- 
phen Hart,  Id.  387,  Betts,  J.,  allowed  the  War  Department  to  requisi- 
tion goods  in  the  custody  of  the  Prize  Court  and  required  for  purposes 
in  connection  with  the  prosecution  of  the  war.  In  the  case  of  The 
Peterhoff  (1863)  Blatchford,  P.  C.  381,  he  allowed  the  vessel  itself 
to  be  similarly  requisitioned  by  the  Navy  Department.  The  reasons 
of  Betts,  J.,  as  reported,  are  not  very  satisfactory,  for  they  leave  it  in 
doubt  whether  he  considered  the  right  he  was  enforcing  to  be  a  right 
according  to  the  municipal  law  of  the  United  States  overriding  the  in- 
ternational law,  or  to  be  a  right  according  to  the  international  law. 
But  his  decisions  were  not  appealed,  nor  does  it  appear  that  they  led 
to  any  diplomatic  protest. 

On  March  3,  1863,  after  the  decisions  above  referred  to,  the  United 
States  legislature  passed  an  act  (Congress,  1863,  Sess.  Ill,  c.  86)  where- 
by it  was  enacted  (section  2)  that  the  Secretary  of  the  Na\7"  or  the 
Secretary  of  War  should  be  and  they  or  either  of  them  were  thereby 
authorized  to  take  any  captured  vessel,  any  arms  or  munitions  of 
war,  or  other  material  for  the  use  of  the  Government,  and  when  the 
same  should  have  been  taken,  before  being  sent  in  for  adjudication  or 
afterwards,  the  department  for  whose  use  it  was  taken  should  deposit 
the  value  of  the  same  in  the  treasury  of  the  United  States,  subject  to 
the  order  of  the  court  in  which  prize  proceedings  rnight  be  taken,  or, 
if  nc  proceedings  in  prize  should  be  taken,  to  be  credited  to  the  Navy 
Department  and  dealt  with  according  to  law. 

It  is  impossible  to  suppose  that  the  United  States  legislature  in  pass- 
ing this  act  intended  to  alter  or  modify  the  principles  of  international 
law  in  its  own  interest  or  against  the  interest  of  neutrals.  On  the 
contrary,  the  act  must  be  regarded  as  embodying  the  considered  opinion 
of  the  United  States  authorities  as  to  the  right  possessed  by  a  bellig- 
erent to  requisition  vessels  or  goods  seized  as  prize  before  adjudication. 
Nevertheless,  their  Lordships  regard  the  passing  of  the  act  as  some- 
what unfortunate  from  the  standpoint  of  the  international  lawyer. 
In  the  first  place,  it  seems  to  cast  some  doubt  upon  the  decisions  al- 
ready given  by  Betts,  J.  In  the  second  place,  it  tends  to  weaken  all 
subsequent  decisions  of  the  United  States  prize  courts  on  the  right  to 
requisition  vessels  or  goods,  as  authorities  on  international  law,  for 
these  courts  are  bound  by  the  provisions  of  the  Act,  whether  it  be  in 
accordance  with  international  law  or  otherwise.  In  the  third  place, 
their  Lordships  are  of  opinion  that  the  provisions  of  the  act  go  be- 
yond what  is  justified  by  international  usage.  The  right  to  requisi- 
tion recognized  by  international  law  is  not,  in  their  opinion,  an  absolute 
right,  but  a  right  exercisable  in  certain  circumstances  and  for  certain 
Scott  Int.Law— 47  , 


738  RIGHTS  AND  DUTIES  OP  NATIONS  IN  TIME  OF  WAR         (Part  3 

purposes  only.  Further,  international  usage  requires  all  captures  to 
be  brought  promptly  into  the  prize  court  for  adjudication,  and  the 
right  to  requisition,  therefore,  ought  as  a  general  rule  to  be  exercised 
only  when  this  has  been  done.  It  is  for  the  court,  and  not  the  execu- 
tive of  the  belligerent  state,  to  decide  whether  the  right  claimed  can 
be  lawfully  exercised  in  any  particular  case. 

It  appears  that  the  British  government,  shortly  after  the  act  was 
passed,  protested  against  the  provisions  of  the  second  section.  The 
grounds  for  such  protest  appear  in  Lord  Russell's  despatch  of  April 
21,  1863.  The  first  is  the  primary  duty  of  the  court  to  preserve  the 
subject-matter  of  the  litigation  for  the  party  who  ultimately  estab-  • 
lishes  his  title.  In  stating  it  Lord  Russell  ignores,  and  (having  re- 
gard to  the  provisions  of  the  section)  was  probably  entitled  to  ignore, 
all  exceptional  cases  based  on  the  right  of  angary.  The  second  ground 
is  that  such  a  general  right  as  asserted  in  the  section  would  encourage 
the  making  of  seizures,  known  at  the  time  when  they  are  made  to  be 
unwarrantable  by  law,  merely  because  the  property  seized  might  be 
useful  to  the  belligerent.  This  objection  is  more  serious,  but  it  de- 
rives its  chief  force  from  the  fact  that  the  right  asserted  in  the  sec- 
tion can  be  exercised  before  the  property  seized  is  brought  into  the 
prize  court  for  adjudication,  and,  even  when  it  has  been  so  brought  in, 
precludes  the  judge  from  dealing  judicially  with  the  matter.  If  the 
right  accorded  by  international  law  to  requisition  vessels  or  goods  in 
the  custody  of  the  court  be  exercised  through  the  court  and  be  con- 
fined to  cases  in  which  there  is  really  a  question  to  be  tried,  and  the 
vessel  or  goods  cannot,  therefore,  be  released  forthwith,  the  objection 
is  obviated. 

It  further  appears  that  the  United  States  took  the  opinion  of  their 
own  Attorney  General  on  the  matter  (Opinions  of  Attorneys  General 
of  the  United  States,  vol.  10,  p.  519),  and  were  advised  that  there  was 
no  warrant  for  the  section  in  international  law,  and  that  it  would  not 
be  advisable  to  put  it  into  force  in  cases  where  controversy  was  likely 
to  arise.  The  Attorney  General  did  not,  any  more  than  Lord  Russell, 
refer  to  exceptional  cases  based  on  the  right  of  angary,  but  dealt  only 
with  the  provisions  of  the  section  as  a  whole. 

Some  stress  was  laid  in  argument  on  the  cases  cited  in  the  judgment 
in  the  Court  below  upon  what  is  known  as  "the  right  of  pre-emption," 
but  in  their  Lordships'  opinion  these  cases  have  little  if  any  bearing 
on  the  matter  now  in  controversy.  The  right  of  pre-emption  appears 
to  have  arisen  in  the  following  manner :  According  to  the  British 
view  of  international  law,  naval  stores  were  absolute  contraband, 
and  if  found  on  a  neutral  vessel  bound  for  an  enemy  port  were  lawful 
prize.  Other  countries  contended  that  such  stores  were  only  contra- 
band if  destined  for  the  use  of  the  enemy  government.  If  destined 
for  the  use  of  civilians  they  were  not  contraband  at  all.  Under  these 
circumstances  the  British  government,  by  way  of  mitigation  of  the 
»  Scott  Int.Law 


Ch.  10)  ANGARY  739 

severity  of  its  own  view,  consented  to  a  kind  of  compromise.  Instead 
of  condemning  such  stores  as  lawful  prize,  it  bought  them  out  and  out 
from  their  neutral  owners,  and  this  practice,  after  forming  the  sub- 
ject of  many  particular  treaties,  at  last  came  to  be  recognized  as  fully 
warranted  by  international  law.  It  was,  however,  always  confined  to 
naval  stores,  and  a  purchase  pursuant  to  it  put  an  end  to  all  litigation 
between  the  crown  on  the  one  hand  and  the  neutral  owner  on  the  other. 
Only  in  cases  where  the  title  of  the  neutral  was  in  doubt  and  the  prop- 
erty might  turn  out  to  be  enemy  property  was  the  purchase  money 
paid  into  court.  It  is  obvious,  therefore,  that  this  "right  of  pre-emp- 
tion" differs  widely  from  the  right  to  requisition  the  vessels  or  goods 
of  neutrals,  which  is  exercised  without  prejudice  to,  and  does  not 
conclude  or  otherwise  affect,  the  question  whether  the  vessel  or  goods 
should  or  should  not  be  condemned  as  prize. 

On  the  whole  question  their  Lordships  have  come  to  the  following 
conclusion :  A  belligerent  power  has  by  international  law  the  right  to 
requisition  vessels  or  goods  in  the  custody  of  its  prize  court  pending 
a  decision  of  the  question  whether  they  should  be  condemned  or  re- 
leased, but  such  right  is  subject  to  certain  limitations:  First,  the  ves- 
sel or  goods  in  question  must  be  urgently  required  for  use  in  connec- 
tion with  the  defence  of  the  realm,  the  prosecution  of  the  war,  or  oth- 
er matters  involving  national  security.  Secondly,  there  must  be  a  real 
question  to  be  tried,  so  that  it  would  be  improper  to  order  an  imme- 
diate release.  And,  thirdly,  the  right  must  be  enforced  by  application 
to  the  prize  court,  which  must  determine  judicially  whether,  imder  the 
particular  circumstances  of  the  case,  the  right  is  exercisable. 

With  regard  to  the  first  of  these  limitations,  their  Lordships  are  of 
opinion  that  the  judge  ought,  as  a  rule,  to  treat  the  statement  on  oath 
of  the  proper  officer  of  the  crown  to  the  effect  that  the  vessel  or 
goods  which  it  is  desired  to  requisition  are  urgently  required  for  use 
in  connection  with  the  defence  of  the  realm,  the  prosecution  of  the 
war,  or  other  matters  involving  national  security,  as  conclusive  of  the 
fact.  This  is  so  in  the  analogous  case  of  property  being  requisitioned 
under  the  municipal  law  (see  Warrington,  L.  J.,  in  the  case  of  In  re 
A  Petition  of  Right  [1915]  3  K.  B.  666,  already  cited),  and  there  is 
every  reason  why  it  should  be  so  also  in  the  case  of  property  requisi- 
tioned under  the  international  law.  Those  who  are  responsible  for 
the  national  security  must  be  the  sole  judges  of  what  the  national  se- 
curity requires.  It  would  be  obviously  undesirable  that  such  matters 
should  be  made  the  subject  of  evidence  in  a  court  of  law  or  otherwise 
discussed  in  public. 

With  regard  to  the  second  limitation,  it  can  be  best  illustrated  by 
referring  to  the  old  practice.  The  first  hearing  of  a  case  in  prize  was 
upon  the  ship's  papers,  the  answers  of  the  master  and  others  to  the 
standing  interrogatories  and  such  special  interrogatories  as  might  have 
been  allowed,  and  any  further  evidence  which  the  judge,  under  spe- 
cial circumstances,  thought  it  reasonable  to  admit.     If,  on  this  hear- 


740  RIGHTS  AND  DUTIES   OF   NATIONS   IN   TIME  OF  WAR         (Part  3 

ing,  the  judge  was  of  opinion  that  the  vessel  or  goods  ought  to  be  re- 
leased forthwith,  an  order  for  release  would  in  general  be  made.  A 
further  hearing  was  not  readily  granted  at  the  instance  of  the  crown. 
If,  on  the  other  hand,  the  judge  was  of  opinion  that  the  vessel  or 
goods  could  not  be  released  forthwith,  a  further  hearing  would  be 
granted  at  the  instance  of  the  claimant.  If  the  claimant  did  not  desire 
a  further  hearing,  the  vessel  or  goods  would  be  condemned.  This 
practice,  though  obviously  unsuitable  in  many  respects  to  modern  con- 
ditions, had  the  advantage  of  demonstrating  at  an  early  stage  of  the 
proceedings  whether  there  was  a  real  question  to  be  tried,  or  whether 
there  ought  to  be  an  immediate  release  of  the  vessel  or  goods  in  ques- 
tion. In  their  Lordship's  opinion,  the  judge  should,  before  allowing 
a  vessel  or  goods  to  be  requisitioned,  satisfy  himself  (having  regard 
of  course  to  modern  conditions)  that  there  is  a  real  case  for  investi- 
gation and  trial,  and  that  the  circumstances  are  not  such  as  would  jus- 
tify the  immediate  release  of  the  vessel  or  goods.  The  application  for 
leave  to  requisition  must,  under  the  existing  practice,  be  an  interlocu- 
tory application,  and,  in  view  of  what  has  been  said,  it  should  be  sup- 
ported by  evidence  sufficient  to  satisfy  the  judge  in  this  respect.  In 
this  manner  Lord  Russell's  objection  as  to  the  encouragement  of  un- 
warranted seizures  is  altogether  obviated. 

With  regard  to  the  third  limitation,  it  is  based  on  the  principle  that 
the  jurisdiction  of  the  prize  court  commences  as  soon  as  there  is  a 
seizure  in  prize.  If  the  captors  do  not  promptly  bring  in  the  property 
seized  for  adjudication,  the  court  will  at  the  instance  of  any  party  ag- 
grieved compel  them  so  to  do.  From  the  moment  of  seizure  the  rights 
of  all  parties  are  governed  by  international  law.  It  was  suggested  in 
argument  that  a  vessel  brought  into  harbour  for  search  might,  before 
seizure,  be  requisitioned  under  the  municipal  law.  This  point,  if  it 
ever  arises,  would  fall  to  be  decided  by  a  court  administering  munici- 
pal law,  but  from  the  point  of  view  of  international  law  it  would  be 
a  misfortune  if  the  practice  of  bringing  a  vessel  into  harbour  for  the 
purpose  of  search — a  practice  which  is  justifiable  because  search  at 
sea  is  impossible  under  the  conditions  of  modern  warfare — were  held 
to  give  rise  to  rights  which  could  not  arise  if  the  search  took  place 
at  sea.     *    *     * 


THE  SPLENDID. 

(Commission  under  the  Convention  between  the  United  States  and  Mexico  of 
April  11,  1839.     Manuscript,  Department  of  State.) 

The  brig  Splendid  was  the  property  of  Smith  and  Thompson,  Elihu 
Sandford  and  Smith  Tuttle,  who  were  citizens  of  the  United  States, 
and  residents  of  New  Haven,  in  the  state  of  Connecticut.  That  vessel, 
A.  C.  White,  master,  when  lying  in  the  port  of  Vera  Cruz,  was  on  the 
3d  of  August,  1829,  impressed  and  forcibly  taken  possession  of  by 


Ch.  10)  ANGARY  741 

the  Mexican  authorities,  and  employed  until  the  12th  of  that  month,  by 
them,  in  transporting  troops  and  munitions  of  war,  from  that  place 
to  Tecoluta,  for  which,  and  for  articles  consumed,  and  taken  by  the 
soldiers,  and  for  the  hindrance  and  delay  on  her  voyage,  they  claim 
the  sum  of  two  thousand  five  hundred  dollars. 

Upon  due  consideration  of  the  case,  the  members  of  the  board  are 
unanimously  of  opinion  that  the  Mexican  government  is  justly  in- 
debted to  Nathaniel  Thompson,  surviving  partner  of  Smith  &  Thomp- 
son, and  Elihu  Sandford  and  Smith  Tuttle,  the  sum  of  two  thousand 
and  ninety-three  dollars  and  sixty-seven  cents,  for  the  impressment, 
seizure  and  employment  of  their  brig  as  aforesaid ;  and  do  award  and 
decide  that  the  Mexican  government  shall  pay  to  them  the  sum  afore- 
said of  two  thousand  and  ninety-three  dollars  and  sixty-seven  cents, 
being  the  fair  price  of  the  services  exacted  from  the  vessel  and  crew 
aforesaid,  and  the  interest  thereon  included,  at  the  rate  of  five  per  cent, 
per  annum,  up  till  this  date,  namely,  this  tenth  day  of  March  in  the 
year  eighteen  hundred  and  forty-one. 


THE  LABUAN. 

(American   and   British   Claims   Commission   under  Treaty  of  Alay  8,   1871. 
4  Moore's  International  Arbitrations,  3791.) 

Bailey  and  Leetham,  claimants.  No.  386.  The  claimants  were  the 
owners  of  the  British  steamship  Labuan,  which,  on  the  5th  of  No- 
vember, 1862,  was  in  the  port  of  New  York  laden  with  a  cargo  of 
merchandise  destined  for  Matamoras.  On  that  day  her  master  pre- 
sented the  manifest  to  the  proper  officer  of  the  custom-house  at  New 
York  for  clearance,  but  such  clearance  was  refused,  and  the  refusal 
continued  up  to  the  13th  of  December,  1862,  on  which  day  it  was  grant- 
ed. The  memorial  alleged  that  this  detention  was  by  reason  of  instruc- 
tions received  by  the  custom-house  officers  from  the  proper  authorities 
of  the  United  States  to  detain  the  Labuan,  in  common  with  other  ves- 
sels of  great  speed  destined  for  ports  in  the  Gulf  of  Mexico,  to  pre- 
vent the  transmission  of  information  relative  to  the  departure  or  pro- 
posed departure  of  a  military  expedition  fitted  out  by  the  authority 
of  the  said  United  States.  The  memorial  claimed  damages  for  the 
detention  $38,000,  being  at  the  rate  of  $1,000  per  day,  the  memorial  al- 
leging that  on  a  former  seizure  and  detention  of  the  same  vessel,  from 
February  to  May,  1862,  when  libelled  as  prize,  this  rate  of  compensa- 
tion for  the  detention  had  been  awarded  to  the  owners  by  the  District 
Court  of  the  United  States. 

On  the  part  of  the  United  States  it  was  contended  that  the  detention 
of  the  Labuan,  under  the  circumstances  alleged  in  the  memorial,  was 
within  the  legitimate  and  recognized  powers  of  the' United  States;  that 
it  was  no  infringement  upon  the  rules  of  international  law  or  upon 
any  treaty  stipulations  between  the  United  States  and  Great  Britain, 


742  RIGHTS   AND   DUTIES   OF  NATIONS   IN  TIME   OF  WAR         (Part  3l 

and  that  it  gave  no  right  of  reclamation  in  favor  of  the  claimants 
against  the  United  States;  that  the  right  of  self-protection,  by  tem- 
porarily refusing  clearance  to  vessels  through  which  information  of 
great  importance  in  regard  to  military  movements  is  likely  to  reach 
the  enemy,  must  be  regarded  as  of  necessity  permissible  to  a  govern- 
ment engaged  in  war ;  that  at  the  time  of  this  detention  important  mil- 
itary movements  then  in  progress  in  connection  with  the  occupation  of 
New  Orleans  by  the  federal  forces,  including  the  dispatch  of  General 
Banks,  with  large  reinforcements,  to  supersede  General  Butler  in  the 
command  there,  were  in  progress,  and  made  it  of  the  utmost  importance 
that  these  movements  should  be  carefully  kept  secret  from  the  rebels ; 
that  the  detention  of  the  Labuan  was  not  by  any  discrimination  against 
her  as  a  British  vessel,  or  against  British  vessels  as  such.  All  vessels 
capable  of  such  a  rate  of  speed  as  to  make  their  departure  dangerous  in 
this  regard  were  detained  alike;  that  no  claim  had  ever  been  made 
by  the  British  government,  through  the  usual  diplomatic  channels,  upon 
the  United  States  for  compensation ;  and  that  it  could  not  be  believed 
that  such  a  claim  would  not  have  been  made  if  Her  Majesty's  govern- 
ment had  considered  such  a  claim  valid.  The  counsel  for  the  United 
States  cited,  in  this  connection,  the  letter  of  Mr.  Stuart,  Her  Majesty's 
minister  at  Washington,  to  Mr.  Seward,  of  1st  August,  1862  (U.  S.  Dip. 
Cor.  1862,  1863,  pt.  1,  p.  273),  upon  a  somewhat  analogous  question, 
in  which  Mr.  Stuart  says : 

"I  have  been  instructed  to  state  to  you  that  Her  Majesty's  govern- 
ment, after  considering  these  dispatches,  in  connection  with  the  law  of- 
ficers of  the  crown,  are  of  opinion  that  it  is  competent  for  the  United 
States,  as  a  belligerent  power,  to  protect  itself  within  its  own  ports  and 
territory  by  refusing  clearances  to  vessels  laden  with  contraband  of 
war  or  other  specified  articles,  as  well  as  to  vessels  which  are  believed 
to  be  bound  to  Confederate  ports ;  and  that  so  long  as  such  precautions 
are  adopted,  equally  and  indifferently  in  all  cases,  without  reference  to 
the  nationality  or  origin  of  any  particular  vessel  or  goods,  they  do  not 
afford  any  just  ground  of  complaint." 

The  case  of  the  detention  of  the  Labuan,  it  was  contended  on  the 
part  of  the  United  States,  was  governed  by  the  same  principles  and 
justified  by  the  same  rules  as  the  cases  referred  to  by  Mr.  Stuart. 
The  counsel  referred  to  the  decision  of  the  commission  upon  the  Ameri- 
can claims  against  Great  Britain,  growing  out  of  the  prohibition  of 
the  exportation  of  saltpetre  at  Calcutta  (American  claims,  Nos.  11,  12, 
16,  18),  hereinbefore  reported,  and  in  which  such  prohibition  was  held 
by  the  commission  not  to  involve  a  violation  either  of  international  law 
or  of  treaty  stipulation,  and  urged  that  the  principles  which  would  sus- 
tain the  validity  of  such  prohibition  must  also  include  such  a  case  as 
the  detention  of  the  Labuan. 

The  counsel  for  the  claimant  maintained  that  the  detention  of  the 
Labuan  was  in  effect  a  deprivation  of  the  owners  of  the  use  of  their 
property  for  the  time  of  the  detention  for  the  public  benefit;   that  it 


Ch.  10)  ANGARY  743 

was  in  effect  a  taking  of  private  property  for  public  use,  always  justi- 
fied by  the  necessity  of  the  state,  but  likewise  always  involving  the  ob- 
ligation of  compensation.  He  cited  3  Phillimore,  42,  and  Dana's 
Wheaton,  152,  note. 

The  commission  unanimously  made  an  award  in  favor  of  the  claim- 
ant for  $37,392.     *     *     * 


744  RIGHTS   AND  DUTIES  OF   NATIONS   IN   TIME  OF   WAR         (Part  3 


CHAPTER  XI 

CAPTURE  AT  SEA;   EXEMPTION  FROM  CAPTURE; 
RECAPTURE;  RESCUE^ 


THE  OSTSEE. 

(Privy  Council,  1855.    9  Moore,  P.  0.  150.) 

The  Right  Hon.  T.  Pemberton  Leigh  (March  29,  1855).''  On 
the  1st  of  June,  1854,  the  ship  Ostsee  saiHng  under  the  Mecklenburg 
flag,  on  her  voyage  from  Cronstadt  to  Elsinore,  was  seized  by  Her 
Majesty's  ship  Alban,  under  the  command  of  Captain  Otter,  and  sent 
to  London  for  adjudication  as  prize. 

Upon  the  ship's  papers  and  the  examination  of  the  master,  the  mate, 
and  another  of  the  crew,  on  the  usual  interrogatories,  there  appeared 
to  be  no  ground  for  condemnation  ;  and  with  the  consent  of  the  captors, 
on  the  19th  of  August,  1854,  an  interlocutory  decree  was  pronounced, 
by  which  the  ship  and  cargo  were  restored  to  the  claimants,  but  with- 
out costs  and  damages.  From  so  much  of  the  decree  as  refuses  costs 
and  damages  to  the  claimants,  the  present  appeal  is  brought. 

It  is  agreed  on  all  hands,  that  the  restitution  of  a  ship  and  cargo  may 
be  attended,  according  to  the  circumstances  of  the  case,  with  any  one 
of  the  following  consequences : 

First.  The  claimants  may  be  ordered  to  pay  to  the  captors  their  costs 
and  expenses ;    or. 

Second.  The  restitution  may  be,  as  in  this  case,  simple  restitution, 
without  costs  or  expenses,  or  damages  to  either  party ;  or, 

Third.  The  captors  may  be  ordered  to  pay  costs  and  damages  to 
the  claimants. 

These  provisions  may  seem  well  adapted  to  meet  the  various  circum- 
stances, not  ultimately  affording  ground  of  condemnation,  under  which 
captures  may  take  place. 

A  ship  may,  by  her  own  misconduct,  have  occasioned  her  capture, 
and  in  such  a  case  it  is  very  reasonable  that  she  should  indemnify 
the  captors  against  the  expenses  which  her  misconduct  has  occasioned. 
Or  she  may  be  involved,  with  little  or  no  fault  on  her  part,  in  such 
suspicion  as  to  make  it  the  right,  or  even  the  duty,  of  a  belligerent  to 
seize  her.  There  may  be  no  fault  either  in  the  captor  or  the  captured 
or  both  may  be  in  fault;  and  in  such  cases  there  may  be  damnum 
absque  injuria,  and  no  ground  for  anything  but  simple  restitution.    Or 

1  On  recapture  and  rescue,  see  the  remarkable  case  of  The  Agiena,  decided 
by  the  Belgian  Prize  Court  in  1920,  Moniteur  Beige,  January  17,  1920,  p.  404, 
English  translation,  16  American  Journal  nf  International  Law,  p.  117  (1922). 

2  The  statement  of  facts  and  parts  of  the  opinion  are  omitted* 


Ch.  11)  CAPTURE  AT   SEA  745 

there  may  be  a  third  case,  where  not  only  the  ship  is  in  no  fault,  but 
she  is  not  by  any  act  of  her  own,  voluntary  or  involuntary,  open  to  any 
fair  ground  of  suspicion.  In  such  a  case  a  belligerent  may  seize  at  his 
peril,  and  take  the  chance  of  something  appearing  on  investigation  to 
justify  the  capture;  but,  if  he  fails  in  such  a  case,  it  seems  very  fit 
that  he  should  pay  the  costs  and  damages  which  he  has  occasioned. 

The  appellants  insist  that  the  circumstances  of  this  case  bring  it 
within  the  last  of  these  rules.  The  general  principles  applicable  to 
this  point  are  stated  with  great  clearness  in  a  document  of  the  very 
highest  authority,  the  Report  made  to  King  Geo.  II,  in  1753,  by  the 
then  judge  of  the  Admiralty  Court  (Sir  J.  Lee)  and  the  law  officers 
of  the  crown,  one  of  whom  was  Mr.  Murray  (afterwards  Lord  Mans- 
field), and  they  are  laid  down  in  these  terms  (Pratt's  Story,  p.  4) : 

"The  law  of  nations  allows,  according  to  the  different  degrees  of 
misbehaviour,  or  suspicion  arising  from  the  fault  of  the  ship  taken,  and 
other  circumstances  of  the  case,  costs  to  be  paid,  or  not  to  be  received 
by  the  claimant,  in  case  of  acquittal  and  restitution.  On  the  other 
hand,  if  a  seizure  is  made  without  probable  cause,  the  captor  is  ad- 
judged to  pay  costs  and  damages." 

This  passage  (with  others)  is  cited  by  Lord  Stowell  (then  Sir  William 
Scott),  and  Sir  John  Nicholl,  in  their  letter  to  the  American  minister, 
in  1794,  as  containing  an  accurate  statement  of  the  law  of  maritime 
capture.  These  rules  have  been  recognised  and  acted  upon  by  all  the 
chief  maritime  powers.     *     *     * 

The  result  of  these  authorities  is,  that  in  order  to  exempt  a  captor 
from  costs  and  damages  in  case  of  restitution,  there  must  have  been 
some  circumstances  connected  with  the  ship  or  cargo  affording  reason- 
able ground  for  belief  that  one  or  both,  or  some  part  of  the  cargo, 
might  prove,  upon  further  inquiry,  to  be  lawful  prize. 

What  shall  amount  to  probable  cause,  so  as  to  justify  a  capture,  can- 
not be  defined  by  any  exact  terms.  The  question  was  discussed  be- 
fore Mr.  Justice  Story,  in  the  case  of  The  George,  1  Mason,  24,  Fed. 
Cas.  No.  5,328,  w^hen  it  was  contended  that,  in  order  to  exempt  captors 
from  costs  and  damages,  the  case  against  the  ship  at  the  time  of  seizure 
must  be  such  as  prima  facie  to  warrant  condemnation,  or  at  all  events, 
that  a  restoration  by  a  court  of  prize,  without  further  proof,  is  con- 
clusive evidence  of  a  defect  of  probable  cause.  Mr.  Justice  Story  ex- 
presses his  dissent  from  these  propositions,  in  which  we  agree  with 
him;  and  he  then  expresses  himself  in  these  terms  (page  26):  "If, 
therefore,  there  be  a  reasonable  suspicion  of  illegal  traffic,  or  a  reason- 
able doubt  as  to  the  proprietary  interest,  the  national  character,  or  the 
legality  of  the  conduct,  of  the  parties,  it  is  proper  to  submit  the  cause 
for  adjudication  before  the  proper  prize  tribunal ;  and  the  captors  will 
be  justified,  although  the  court  should  acquit  without  the  formality  of 
ordering  further  proof."  In  this  case  there  was  abundant  ground  for 
suspicion,  and  the  demand  of  damages  was  rejected. 

Neither  in  the  texts,  nor  in  the  decided  cases  to  which  we  have 


746  RIGHTS  AND  DUTIES  OP  NATIONS   IN  TIME  OP  WAR         (Part  3 

thus  referred,  do  we  find  it  stated  that,  in  order  to  subject  captors  to 
condemnation  in  costs  and  damages,  vexatious  conduct  on  their  part 
must  be  proved  (except  as  some  degree  of  vexation  is  necessarily  im- 
plied in  the  detention  of  a  vessel  without  reasonable  cause,  after  she 
has  been  searched),  or  that  honest  mistake,  though  occasioned  by  the 
act  of  the  government  of  which  they  are  subjects,  can  relieve  them 
from  their  liability  to  make  good  to  a  foreigner  and  neutral  (and  with 
this  case  alone  we  are  dealing)  the  damage  which,  by  their  conduct  he 
has  sustained. 

Nor  is  it  easy  to  perceive  upon  what  grounds  of  reason  or  justice 
such  excuses  could  rest.  If  costs  and  damages  were  inflicted  as  a 
punishment  on  captors,  honest  intention  would  be  a  consideration  of 
the  greatest  weight,  but  the  principle  upon  which  they  are  awarded  is 
that  of  affording  compensation  to  a  party  who  has  been  injured.  Vex- 
atious conduct  on  the  part  of  the  captors  has,  in  some  cases,  been  al- 
luded to  as  removing  all  reluctance  on  the  part  of  the  judge  to  award 
costs  and  damages  as  in  The  Nemesis,  Edwards'  Rep.  50 ;  or  as  form- 
ing a  ground  for  what  are  termed  vindictive  damages ;  or  for  subject- 
ing the  captors  to  costs  and  damages ;  or  depriving  them  of  their  ex- 
penses, when,  but  for  such  conduct,  they  might  have  been  entitled  to 
their  expenses  against  the  claimants,  as  in  the  cases  of  The  Speculation, 
2  Rob.  293,  The  Washington,  6  Rob.  275,  and  several  others ;  but  no 
case  was  cited  to  us  at  the  bar,  nor  have  we  been  able  to  find  any,  in 
which  willful  misconduct  on  the  part  of  the  captors  has  been  stated 
to  be  a  necessary  ingredient  in  an  ordinary  condemnation  in  costs  and 
damages. 

So  as  to  error  occasioned  by  the  proceedings  of  their  own  govern- 
ment. The  captors  act  as  the  agents  of  the  state  of  which  they  are 
citizens,  and  which  must  ultimately  be  responsible  for  their  acts.  Prize 
courts  afford  the  remedy  as  between  the  individuals,  which  otherwise 
must  be  sought  by  the  government  of  the  claimants,  against  the  gov- 
ernment of  the  captors;  but  the  mode  of  proceeding. cannot  affect  the 
right  to  redress,  and,  if  the  state  could  not  urge  its  own  mistakes  as  a 
justification  of  its  own  wrong,  neither,  it  would  seem,  should  individual 
citizens  be  permitted  to  do  so. 

The  law  of  nations  upon  these  points  appears  to  us  to  be  settled  by 
the  decisions  both  in  the  American  and  European  courts.  In  the  case 
of  The  Charming  Betsy,  in  1804,  2  Cranch,  64,  2  L.  Ed.  208,  the  cap- 
tain of  an  American  ship  of  war  had  seized  in  America  a  vessel  which 
was  held  upon  the  evidence  to  have  become  Danish  property.  The 
court  was  of  opinion  that  the  orders  issued  by  the  American  govern- 
ment were  such  as  might  well  have  misled  the  captor;  but  it  was  de- 
cided (the  judgment  being  delivered  by  a  most  eminent  lawyer.  Chief 
Justice  Marshall)  that  the  claimants  were  entitled  to  costs  and  damages 
against  the  captors  (though  not  vindictive  damages  which  had  been 
awarded  in  the  court  below),  and  that  tlie  officer,  if  he  had  acted  in 


Ch.  11)  CAPTURE  AT   SEA  747 

obedience  to  orders,  or  had  been  misled  by  his  government,  must  be 
indemnified  by  the  state.  Precisely  the  same  doctrine,  though  without 
reference  to  this  decision,  was  laid  down  some  years  afterwards  by 
Lord  Stowell,  in  the  case  of  The  Acteeon,  2  Dod.  51.  *  *  *  The 
sarne  decision,  on  the  same  grounds,  was  pronounced  by  the  same 
learned  judge  immediately  afterwards,  in  the  case  of  The  Rufus,  2 
Dod.  55. 

It  is  needless  to  refer  to  all  the  other  cases  which  were  cited  at  the 
bar,  but  there  is  one  large  class  which  so  strongly  illustrates  the  prin- 
ciple, that  it  may  be  proper  to  advert  to  it.  We  allude  to  what  are 
called  the  Cape  Nicola  Mole  cases.  In  the  early  part  of  the  last  war 
a  number  of  French  and  Dutch  vessels  and  cargoes  were  captured  by 
British  ships,  and  sent  in  for  adjudication  to  the  Court  of  Admiralty 
of  St.  Domingo.  Several  of  the  ships  and  cargoes  were  condemned, 
and  the  proceeds  of  the  captures  distributed  in  the  years  1797  and  1798. 
It  was  afterwards  discovered  that  although  the  court  of  St.  Domingo 
was  properly  constituted  as  a  civil  court  of  admiralty,  and  His  Maj- 
esty's instructions  had  been  addressed  to  it  as  a  prize  court,  yet,  by 
mistake,  no  warrant  had  been  issued  to  give  it  a  prize  jurisdiction 
against  France  or  Holland,  although  there  had  been  a  prize  warrant 
against  Spain. 

Some  time  afterwards  some  of  the  owners  of  the  captured  property, 
having  discovered  this  error,  the  efifect  of  which  was  that  the  court 
had  no  jurisdiction,  instituted  proceedings  in  the  High  Court  of  Ad- 
miralty, calling  upon  the  captors  to  proceed  to  adjudication.  These 
proceedings  were  instituted  nearly  two  years  after  the  sentence,  when 
the  property  had  been  distributed,  the  crews  dispersed,  the  papers  prob- 
ably lost  or  destroyed,  and  when  it  was  scarcely  possible  that  the  truth 
of  the  cases  could  be  made  to  appear  on  the  part  of  the  captors.  In 
one  of  these  cases.  The  Huldah,  3  Rob.  235,  Lord  Stowell,  in  1801, 
overruled  the  protest  of  the  captors  against  the  proceedings ;  and  in 
1804,  in  determining  a  question  upon  the  registrar's  report  (The  Driver, 
5  Rob.  145),  he  speaks  of  it  as  "one  of  that  unfortunate  class  of  cases 
in  which  this  court  has  felt  itself  under  the  necessity  of  decreeing 
restitution  with  costs  and  damages." 

In  all  these  cases  where  restitution  was  ordered,  we  believe  that,  on 
reference  to  the  registrar's  books,  it  will  be  found  that  the  captors  were 
condemned  in  the  costs  of  the  proceedings  in  the  court  at  Cape  Nicola 
Mole.  Surely,  if  the  absence  of  misconduct  on  the  part  of  the  captors, 
if  honest  error,  occasioned  by  the  blunders  of  the  government,  or  the 
consideration  of  hardship  upon  individual  ofificers  acting  in  discharge 
of  their  duties,  could  in  any  case  afford  a  protection  against  the  claims 
of  a  neutral,  such  protection  would  have  been  afforded  by  the  circum- 
stances of  these  cases.  Yet  the  captors  were  held  liable  by  the  Court 
of  Admiralty,  and  were  afterwards,  we  understand,  indemnified  at  the 
expense  of  the  public. 


748  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

To  apply,  then,  these  rules  to  the  facts  of  the  case  •.  *  *  *  We 
take  it  for  granted,  therefore,  that  it  was  for  a  supposed  breach  of 
blockade  in  sailing  from  Cronstadt  that  she  was  seized,  and  this  is  the 
only  ground  upon  which  the  case  was  rested  on  the  argument  before 
us.  Now,  in  order  to  justify  a  condemnation  for  breach  of  blockade, 
three  things  must  be  proved:  1st,  the  existence  of  an  actual  blockade; 
2dly,  the  knowledge  of  the  party ;  3dly,  some  act  of  violation,  either 
by  going  in  or  coming  out  with  a  cargo  laden  after  the  commencement 
of  the  blockade.    The  Betsy,  1  Rob.  93. 

The  instructions  to  Her  Majesty's  commanders  upon  this  subject 
for  the  present  war  are,  that  if  any  vessel  shall  be  found  coming  out 
of  any  blockaded  port,  which  she  shall  have  previously  entered  in 
breach  of  such  blockade,  or  if  she  shall  have  any  goods  on  board  laden 
after  knowledge  of  the  blockade,  such  ship  and  goods  shall  be  seized, 
and  sent  in  for  adjudication.  Article  X.  Now,  when  this  ship  was 
seized,  was  there  any  reasonable  ground  for  suspicion  that  she  waS 
liable  to  seizure  under  these  instructions? 

It  appeared  distinctly  upon  her  papers,  as  the  facts  upon  inquiry  turn 
out  to  be,  that  on  the  25th  of  March,  1854,  before  the  declaration  of 
war  against  Russia,  this  ship  was  on  her  voyage  from  Leith  to  Cron- 
stadt; that  she  was  on  that  day  chartered  for  a  voyage  with  a  cargo 
of  wheat,  from  Cronstadt  to  England,  or  countries 'in  alliance  or  amity 
with  England,  according  to  orders  which  she  might  receive  at  Elsi- 
nore ;  that  on  the  10th  of  May,  the  shipment  of  her  cargo  had  been 
completed ;  and  that  by  the  16th  she  had  complied  with  all  the  formal- 
ities required  to  enable  her  to  leave  Cronstadt ;  and  that  when  she  was 
taken  she  was  on  her  direct  course  from  that  port  to  Elsinore. 

Cronstadt  was  not  blockaded  at  the  time  when  she  entered  that  port, 
nor  at  the  time  when  she  took  her  cargo  on  board,  nor  at  the  time  when 
she  left  Cronstadt,  nor  even  at  the  time  when  she  was  captured,  nor 
for  more  than  three  weeks  afterwards,  and  no  blockade  of  Cronstadt 
had  been  proclaimed,  either  by  the  British  government  or  by  the  Ad- 
miral. 

It  is  said  that  the  Admiral  had,  on  the  16th  of  April,  in  Kioge  Bay, 
proclaimed  an  intention  of  blockading  all  Russian  ports,  and  that  cer- 
tain ports  in  the  Gulf  of  Finland  were  actually  blockaded  on  the  28th 
of  May,  and  perhaps,  at  an  earlier  period,  but  there  was  not  the 
slightest  ground  for  suspecting  that  this  ship  had  left  any  other  port 
than  Cronstadt,  or  had  any  intention  of  entering  any  other  Russian 
port.  What  colour  of  reason,  then,  could  there  be  for  seizing,  under 
such  circumstances,  this  vessel,  which  did  not  fall  under  any  one  of  the 
conditions  which  are  required  by  the  instructions  to  concur  in  order  to 
justify  sending  in  the  ship  for  adjudication?,    *     *     * 

Again,  as  to  the  discretion  to  be  exercised  by  the  court.  When  the 
application  of  a  rule  depends  on  the  absence  or  existence  of  misconduct 
in  both  or  either  of  the  litigants,  the  greater  or  less  degree  of  that  mis- 


Ch.  11)  CAPTURE   AT   SEA        i  749 

conduct,  the  existence  or  absence  of  suspicion  attaching  to  a  particular 
ship  or  cargo,  the  greater  or  less  degree  of  it,  and  the  causes  to  which 
it  is,  in  whole  or  in  part,  to  be  attributed,  it  is  obvious  that  there  must 
necessarily  be  a  very  large  discretion  left,  to  the  judge,  for  scarcely  any 
two  cases  can  in  all  such  respects  be  precisely  the  same.  But  when  once, 
in  the  opinion  of  the  judge  with  whom  the  decision  rests,  a  particular 
case  is  brought  clearly  within  a  particular  rule,  it  should  seem  that  his 
discretion  is  at  an  end.  It  is  not  a  question  merely  of  costs  of  suit, 
but  of  reparation  for  a  wrong,  which,  when  an  accidental  loss  has.after- 
wards  occurred,  may  extend  to  the  whole  value  of  the  ship  and  cargo. 

Nor,  if  we  were  at  liberty  to  relax  settled  rules  upon  our  own  no- 
tions of  justice  and  policy,  are  we  quite  prepared  to  say  that  we  should 
do  so  in  this  instance?  The  law  which  we  are  to  lay  down  cannot  be 
confined  to  the  British  navy;-  the  rule  must  be  applied  to  captors  of 
all  nations.  No  country  can  be  permitted  to  establish  an  exceptional 
rule  in  its  own  favour,  or  in  favour  of  particular  classes  of  its  own 
subjects.  On  the  law  of  nations,  foreign  decisions  are  entitled  to  the 
same  weight  as  those  of  the  country  in  which  the  tribunal  sits.  Amer- 
ica has  adopted  almost  all  of  her  principles  of  prize  law  from  the  de- 
cisions of  EngHsh  courts;  and  whatever  may  have  been  the  case  in 
former  times,  no  authorities  are  now  cited  in  English  courts,  in  cases 
to  which  they  are  applicable,  with  greater  respect  than  of  those  of 
the  distinguished  jurists  of  France  and  America.  Whatever  is  held 
in  England  to  justify  or  excuse  an  officer  of  the  British  navy  will  be 
held  by  the  tribunals  of  every  country,  both  on  this  and  on  the  other 
side  of  the  Atlantic,  to  justify  or  excuse  the  captors  of  their  own  na- 
tion. 

By  the  usage  of  all  countries,  captors  have  a  great  interest  in  in- 
creasing the  number  of  prizes.  The  temptation  to  send  in  ships  for 
adjudication  is  sufficiently  strong.  Is  it  too  much  to  say,  that  where 
no  ground  of  suspicion  can  be  shown,  and  all  that  the  captor  can  al- 
lege is,  that  he  did  wrong  under  a  mistake,  he  should  make  good  in 
temperate  damages  the  injury  which  he  has  occasioned?  Ought  a 
captor  to  be  permitted  to  say  to  the  captured :  "True,  nothing  suspicious 
appeared  in  your  case  at  the  time  of  seizure,  but,  upon  further  inquiry, 
something  might  have  been  discovered.  I  had  a  right  to  take  my 
chance;  you  have  nothing  to  complain  of.  I  subjected  you  to  no  un- 
necessary inconvenience.  Go  about  your  business,  and  be  thankful  for 
your  escape"? 

We  cannot  think  that  this  would  be  deemed  a  satisfactory  answer 
to  a  British  neutral  seized  by  a  foreign  belligerent.  Upon  the  whole, 
therefore,  after  the  most  anxious  consideration,  having  sought  in  vain 
for  any  circumstances  which  could  afiford  in  this  case  a  probable  cause 
for  capture,  we  cannot  hold  the  captors  exempted  from  all  responsi- 
bility, though  the  damage  will,  in  all  probability,  prove  to  be  but  small. 
The  amount  must  be  referred  to  the  registrar  in  the  usual  way ;  but  we 


750  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

shall  advert  to  some  circumstances  which  ought  to  be  attended  to  in 
making  the  computation.     *     *     * 

We  shall  recommend  that  the  claimants  have  their  costs  in  the  court 
below,  but  that- no  costs  should  be  given  of  this  appeal.     *     *     *  3 


THE  SIMLA. 
(Admiralty,  1915.    1  British  and  Colonial  Prize  Cas.  281.) 

Cause  for  the  condemnation  of  goods  sent  by  parcel  post.  The 
subject-matter  of  this  claim  was  a  number  of  parcels  of  miscellaneous 
goods,  consisting  of  elephant  tusks,  leopard  and  snake  skins,  and 
curios,  sent  by  parcel  post  by  German  colonists  in  German  East  Africa, 
addressed  to  various  persons  resident  in  Germany.  The  goods  were 
shipped  on  the  German  mail  steamer  Emir,  which  was  captured  by  a 
British  warship  after  the  outbreak  of  war  between  Great  Britain  and 
Germany,  and  was  taken  into  Gibraltar,  where  she  was  condemned. 
The  goods  in  question,  of  which  there  were  thirty-one  packages,  were 
reshipped  in  the  British  steamship  Simla,  and  were  seized  on  January 

8  In  speaking  of  tlie  suspicion  which  may  justify  seizure,  although  it  fails 
to  justify  condemnation  by  a  court  of  prize,  Tx)rd  Sumner,  on  behalf  of  the 
Privy  Council,  in  The  Falk  and  Other  Ships,  L.  R.  [1921]  1  App.  Cas.  787,  792, 
793,  said: 

"The  authorities  may  be  referred  to  briefly.  The  foundation  of  the  right, 
variously  expressed  in  different  cases,  may  be  said  to  be  the  existence  of  rea- 
sonable suspicion,  it  may  be  of  illegitimate  traffic,  it  may  be  of  enemy  char- 
acter, it  may  be  of  illegal  action  or  service  or  what  not,  but  there  must  be 
such  suspicion  as  warrants  inquiry  into  the  facts  and  adjudication  upon  them 
by  a  properly  constituted  Court.  See  the  judgment  of  Story,  J.,  in  The  George, 
1  Mason  24,  Fed.  Cas.  No.  5.328  (1815),  quoted  with  approval  in  The  O'stsee, 
9  Moore,  P.  C.  150  (1855).  Even  slight  grounds  of  suspicion  may  suffice.  In 
The  Elizabeth,  1  Acton,  10  (1809).  the  reason  given  by  the  Lords  of  Appeal 
for  condemning  the  captors  in  costs  was  that  there  appeared  to  be  scarcely 
any  ground  for  detaining  the  vessel.  The  Judicial  Committee's  judgment  in 
The  Baron  Stjernblad,  34  The  Times  L.  R.  106,  A.  C.  1918,  173  (1917),  develops 
the  matter.  In  a  case  where  it  has  become  apparent  by  statistical  evidence 
or  otherwise  that  a  considerable  proportion  of  the  collective  imports  into  a 
neighbouring  neutral  country  of  a  particular  commodity,  which  is  in  its  nature 
contraband,  does  in  fact  proceed  by  a  continuous  transit  into  the  enemy  terri- 
tory, any  particular  importer  of  such  goods  belongs  to  a  class  of  importers 
some  of  whom  at  any  rate  must  be  obviously  engaged  in  contraband  trade. 
Suspicion  then  attaches  to  all,  and  the  question  is  one  of  the  existence  of  rea- 
sonable suspicion,  not  of  the  possession  of  proof  attaching  that  suspicion  to 
a  particular  member  of  the  class.  The  suspicion  for  example  attaches  to 
the  particular  goods  by  reason  of  the  circumstance  connected  with  the  class  of 
goods  generally  that  it  is  in  its  nature  contraband.  Those  who  seize  on  the 
grounds  of  reasonable  suspicion  are  entitled  to  the  benefit  of  such  evidence  as 
other  officers  of  the  crown  may  possess  as  to  ulterior  destination,  and  are 
not  limited  by  the  information,  or  the  lack  of  it,  to  be  found  in  the  ship's 
papers  themselves.  Neither  at  the  actual  time  of  seizure  nor  in  the  conduct 
of  the  proceedings  is  the  officer  responsible  called  upon  to  constitute  himself 
judge  or  justified  in  doing  so.  The  decision,  if  grounds  for  seizure  existed, 
must  in  general  rest  with  the  court,  and  the  court  is  also  peculiarly  the 
tribunal  to  determine  any  questions  of  suggested  delay  in  the  proceedings. 
The  judgment  in  The  Ostsee  is  the  standard  authority  on  all  these  matters." 


Ch.  11)  CAPTURE  AT  SEA  751 

27,  1915,  by  the  collector  of  customs  in  the  port  of  London,  after  the 
arrival  of  the  Simla  in  the  Thames. 

Harold  Murphy,  for  the  Procurator  General.  Article  1  of  the  Elev- 
enth Hague  Convention,  which  provides  that  "the  postal  correspond- 
ence, whether  of  neutrals  or  of  belligerents,  and  whether  its  charac- 
ter is  official  or  private,  found  at  sea  in  a  ship,  whether  neutral  or 
enemy,  is  inviolable,"  does  not  apply  to  parcels  sent  by  parcels  post. 
Herr  Kriege,  the  German  delegate  at  the  Conference,  who  proposed 
this  particular  regulation,  explained  that  "postal  correspondence"  was 
not  intended  to  include  parcels.  See  Westlake's  International  Law, 
vol.  2  (2d  Ed.)  p.  185,  and  Oppenheim's  International  Law,  vol,  2  (2d 
Ed.)  p.  237. 

[Sir  Samuel  Evans  (The  President).  There  is  no  one  here  to 
suggest  that  these  goods  are  inviolable?] 

No ;  there  has  been  no  communication  at  all,  and  no  appearance 
has  been  entered. 

Sir  Samuel  Evans  (The  President)  .  Very  well.  There  is  no  ap- 
pearance, and  I  order  that  the  goods  be  condemned.* 


GLOVER  V.  THE  WILLIAM. 

(Massachusetts  Court  of  Admiralty,  1776.    7  Dane   Abr.  c.  227,  |  12,  p.  649.) 

This  case  shews  that  the  Americans  considered  Boston  a  place  be- 
sieged, by  the  laws  of  nations,  March  7,  1776,  and  therefore  libelled 
and  condemned  vessels  carrying  supplies  to  British  troops  in  Boston 
accordingly,  as  was  done  in  this  case;  yet  Boston  was  besieged  by 
land  only.^ 

*  In  The  Noordam  (No.  2)  L.  R.  [1920]  App.  Cas.  904  (1920),  the  Privy  Coun- 
cil decided  that  bearer  bonds  and  coupons  shipped  by  letter  mail  were  not 
postal  correspondence,  so  as  to  be  exempt  from  seizure  under  Hague  Con- 
vention No.  XI. 

5  "The  attention  of  Americans  was  first  drawn  to  the  law  of  nations  through 
the  question  of  prize.  In  November,  1775,  Massachusetts  passed  an  act  reg- 
ulating marque  and  reprisal  and  established  a  prize  court.  During  the  year 
following  the  Supreme  Court  of  Massachusetts  decided  that  by  March  7,  1776, 
Boston  was  a  place  besieged  according  to  the  law  of  nations,  and  upon  that 
ground  decided  questions  arising  out  of  the  seizure  of  vessels  captured  while 
carrying  supplies  to  the  British  troops  in  Boston."  Jesse  S.  Reeves,  "The  In- 
fluence of  the  Law  of  Nature  upon  International  Law  in  the  United  States," 
3  American  Journal  of  International  Law,  547,  555  (1909). 

The  act  was  introduced  by  Elbridge  Gerry,  later  Vice  President  of  the 
United  States,  and  of  which  his  biographer  says: 

"The  law,  *  *  *  jg  the  first  actual  avowal  of  offensive  hostility  against 
the  mother  country,  which  is  to  be  found  in  the  annals  of  the  revolution.  It 
is  not  the  less  worthy  of  consideration  as  the  first  effort  to  establish  an 
American  naval  armament."  James  T.  Austin,  The  Life  of  Elbridge  Gerry, 
vol.  1,  p.  94  (1828).  The  text  of  the  act  in  question  is  found  in  Appendix  A. 
to  this  volume,  pp.  505-512. 


752  RIGHTS  AND   DUTIES  OF  NATIONS   IN   TIME   OP   WAR         (Part  3 


CLEVELAND  v.  WALVART. 

(Superior  Court  of  Massachusetts,  Essex,  1778.     7  Dane    Abr.  c.  227,  §  14, 

p.  &49.) 

In  this  action  the  court  decided,  that  goods  shipped  in  an  enemy's 
country  are  to  be  deemed  enemy's  goods  until  the  contrary  is  proved. 
So  goods  found  in  an  enemy's  ship  are  to  be  deemed  enemy's  goods 
till  the  contrary  is  shewn.  So  where  a  consignment  is  to  foreigners, 
it  ought  to  appear  in  the  bills  of  lading  that  the  property  is  at  their 
risk,  otherwise  it  is  at  the  risk  of  the  shipper,  and  therefore  must  be 
viewed  as  his  property.  And  in  this  case  of  Cleveland  v.  Walvart,  the 
libel  charged:  1.  That  the  cargo  was  British  property.  2.  That  the 
vessel  was  loaded  with  British  goods  of  British  Manufacture,  by  Brit- 
ish merchants,  and  at  a  British  port,  and  by  them  freighted,  insured, 
and  risked  bound  to  Spain  and  Naples,  at  a  time  of  open  war  be- 
tween Great  Britain  and  the  United  States,  which  the  captain 
well  knew.  3.  That  the  captain  refused  to  be  searched  and 
attempted  to  cover  the  property.  4.  That  he  threw  papers  over- 
board. 5.  That  the  vessel  was  carrying  supplies  to  the  fleets  and 
armies  of  Great  Britain.  This  ship  was  claimed  as  neutral  Dutch 
property,  and  the  cargo  as  Italian.  The  ship's  papers  were  produced 
in  court.  And  the  court  further  decided,  that  it  was  the  duty  of  the 
libellants  to  prove  clearly  the  goods  were  enemy's  property ;  and  that 
when  the  goods  are  found  in  an  enemy's  ship  there  ought  to  be  al- 
lowed no  damages  for  capture  and  detention  that  the  freight  must  be 
settled  and  paid  to  the  neutral  according  to  the  terms  of  the  charter 
party  generally;  that  a  ship  being  once  an  enemy's  property  is  to  be 
deemed  his  till  the  contrary  is  made  to  appear,  and  especially  when 
loaded  at  his  port;  that  if  a  consignment  of  goods  be  to  order,  and 
nothing  more  is  expressed,  it  is  to  be  understood  the  order  of  the  ship- 
per. The  cargo  was  condemned.  The  authorities  cited  were,  Lee  on 
Captures,  83,  84,  89,  141,  142,  143,  201,  202,  203,  204, 205,  206,  173,  174, 
190,  194,  241;  Lex  Mer.  p.  1,  41,  42;  Vattel,  b.  3,  c.  7.  And  all 
these  eight  points  decided  have  been  confirmed  by  many  modern  au- 
thorities.   See  Rob.  Reports;  Chitty's  Law  of  Nations,  etc. 


LITTLE  et  al.  v.  BARREME  et  al. 
(Supreme  Court  of  the  United  States,  1804.    2  Cranch,  170,  2  L.  Ed.  243.) 

In  the  District  Court  of  Massachusetts,  the  vessel  and  cargo  were 
ordered  to  be  restored,  without  damages  or  costs.  *  *  *  From 
this  decree,  the  claimants  appealed  to  the  Circuit  Court,  where  it  was 
reversed  and  $8,504  damages  were  given.  *  *  *  The  damages  be- 
ing assessed  by  assessors  appointed  by  the  court,  a  final  sentence  was 
pronounced,  from  which  the  captors  appealed  to  this  court.     *     *     * 


Ch.  11)  CAPTURE  AT   SEA  753 

MARSHALL,  C.  J.,*  now  delivered  the  opinion  of  the  court. 

The  Flying  Fish,  a  Danish  vessel,  having  on  board  Danish  and  neu- 
tral property,  was  captured  on  the  2d  of  December  1799,  on  a  voy- 
age from  Jeremie  to  St.  Thomas,  by  the  United  States  frigate  Boston, 
commanded  by  Captain  Little,  and  brought  into  the  port  of  Boston, 
where  she  was  libelled  as  an  American  vessel  that  had  violated  the 
non-intercourse  law.  The  judge  before  whom  the  cause  was  tried, 
directed  a  restoration  of  the  vessel  and  cargo,  as  neutral  property, 
but  refused  to  award  damages  for  the  capture  and  detention,  becauL<e, 
in  his  opiniun,  there  was  probable  cause  to  suspect  the  vessel  to  be 
American.  On  an  appeal  to  the  circuit  court,  this  sentence  was  re- 
versed, because  the  Flying  Fish  was  on  a  voyage  from,  not  to,  a 
French  port,  and  was,  therefore,  had  she  even  been  an  American 
vessel,  not  liable  to  capture  on  the  high  seas. 

During  the  hostilities  between  the  United  States  and  France,  an 
act  for  the  suspension  of  all  intercourse  between  the  two  nations  was 
annually  passed.  That  under  which  the  Flying  Fish  was  condemned, 
declared  every  vessel  owned,  hired  or  employed,  wholly  or  in  part,  by 
an  American,  which  should  be  employed  in  any  traffic  or  commerce 
with  or  for  any  person  resident  within  the  jurisdiction,  or  under  the 
authority,  of  the  French  republic,  to  be  forfeited,  together  with  her 
cargo;  the  one-half  to  accrue  to  the  United  States,  and  the  other  to 
any  person  or  persons,  citizens  of  the  United  States,  who  will  inform 
and  prosecute  for  the  same.  The  5th  section  of  this  act  authorizes  the 
President  of  the  United  States  to  instruct  the  commanders  of  armed 
vessels  "to  stop  and  examine  any  ship  or  vessel  of  the  United  States, 
on  the  high  seas,  which  there  may  be  reason  to  suspect  to  be  engaged 
in  any  traffic  or  commerce  contrary  to  the  true  tenor  of  the  act,  and 
if  upon  examination,  it  should  appear,  that  such  ship  or  vessel  is 
bound,  or  sailing  to,  any  port  or  place  within  the  territory  of  the 
French  republic  or  her  dependencies,  it  is  rendered  lawful  to  seize 
such  vessel,  and  send  her  into  the  United  States  for  adjudication. 

It  is  by  no  means  clear,  that  the  President  of  the  United  States, 
whose  high  duty  it  is  to  "take  care  that  the  laws  be  faithfully  exe- 
cuted," and  who  is  commander-in-chief  of  the  armies  and  navies  of 
the  United  States,  might  not,  without  any  s-pecial  authority  for  that 
purpose,  in  the  then  existing  state  of  things,  have  empowered  the  of- 
ficers commanding  the  armed  vessels  of  the  United  States,  to  seize  and 
send  into  port  for  adjudication,  American  vessels  which  were  for- 
feited, by  being  engaged  in  this  illicit  commerce.  But  when  it  is  ob- 
served, that  the  general  clause  of  the  first  section  of  the  act,  which 
declares  that  "such  vessels  may  be  seized,  and  may  be  prosecuted  in 
any  district  or  circuit  court  which  shall  be  holden  within  or  for  the 
district  where  the  seizure  shall  be  made,"  obviously  .  contemplates  a 

«  Tho  statement  of  facts  is  abridged. 
Scott  Int. Law — 48 


754  RIGHTS  AND   DUTIES  OP  NATIONS  IN  TIME  OF  WAR         (Part  3 

seizure  within  the  United  States ;  and  that  the  fifth  section  gives  a 
special  authority  to  seize  on  the  high  seas,  and  hmits  that  authority 
to  the  seizure  of  vessels  bound,  or  sailing  to,  a  French  port,  the  legis- 
lature seem  to  have  prescribed  that  the  manner  in  which  this  law  shall 
be  carried  into  execution,  was  to  exclude  a  seizure  of  any  vessel  not 
bound  to  a  French  port.  Of  consequence,  however  strong  the  circum- 
stances might  be,  which  induced  Captain  Little  to  stispect  the  Flying 
Fish  to  be  an  American  vessel,  they  could  not  excuse  the  detention  of 
her,  since  he  would  not  have  been  authorized  to  detain  her,  had  she 
been  really  American. 

It  was  so  obvious,  that  if  only  vessels  sailing  to  a  French  port  could 
be  seized  on  the  high  seas,  that  the  law  would  be  very  often  evaded, 
that  this  act  of  Congress  appears  to  have  received  a  different  construc- 
tion from  the  executive  of  the  United  States;  a  construction  much 
better  calculated  to  give  it  effect.  A  copy  of  this  act  was  transmitted 
by  the  secretary  of  the  navy,  to  the  captains  of  the  armed  vessels,  who 
were  ordered  to  consider  the  5th  section  as  a  part  of  their  instructions. 
The  same  letter  contained  the  following  clause: 

"A  proper  discharge  of  the  important  duties  enjoined  on  you,  aris- 
ing out  of  this  act,  will  require  the  exercise  of  a  sound  and  an  impar- 
tial judgment.  You  are  not  only  to  do  all  that  in  you  lies,  to  prevent 
all  intercourse,  whether  direct  or  circuitous,  between  the  ports  of  the 
United  States  and  those  of  France  or  her  dependencies,  where  the  ves- 
sels are  apparently  as  well  as  really  American,  and  protected  by  Amer- 
ican papers  only,  but  you  are  to  be  vigilant  that  vessels  or  cargoes, 
really  American,  but  covered  by  Danish  or  other  foreign  papers,  and 
bound  to  or  from  French  ports,  do  not  escape  you." 

These  orders,  given  by  the  executive,  under  the  construction  of  the 
act  of  congress  made  by  the  department  to  which  its  execution  was 
assigned,  enjoin  the  seizure  of  American  vessels  sailing  from  a  French 
port.  Is  the  officer  who  obeys  them  liable  for  damages  sustained  by 
this  misconstruction  of  the  act,  or  will  his  orders  excuse  him?  If  his 
instructions  afford  him  no  protection,  then  the  law  must  take  its 
course,  and  he  must  pay  such  damages  as  are  legally  awarded  against 
him :  if  they  excuse  an  act,  not  otherwise  excusable,  it  would  then  be 
necessary  to  inquire,  whether  this  is  a  case  in  which  the  probable 
cause  which  existed  to  induce  a  suspicion  that  the  vessel  was  Ameri- 
can, would  excuse  the  captor  from  damages  when  the  vessel  ap- 
peared in  fact  to  be  neutral? 

I  confess,  the  first  bias  of  my  mind  was  very  strong  in  favor  of  the 
opinion,  that  though  the  instructions  of  the  executive  could  not  give 
a  right,  they  might  yet  excuse  from  damages.  I  was  much  inclined 
to  think,  that  a  distinction  ought  to  be  taken  between  acts  of  civil  and 
those  of  military  officers ;  and  between  proceedings  within  the  body  of 
the  country  and  those  on  the  high  seas.  That  implicit  obedience  which 
military  men  usually  pay  to  the  orders  of  their  superiors,  which  in- 
deed is  indispensably  necessary  to  every  military  system,  appeared  to 

Scott  Int.Law 


Ch.  11)  CAPTURE   AT   SEA  755 

me  strongly  to  imply  the  principle,  that  those  orders,  if  not  to  perform 
a  prohibited  act,  ought  to  justify  the  person  whose  general  duty  it  is 
to  obey  them,  and  who  is  placed  by  the  laws  of  his  country  in  a  sit- 
uarion  which,  in  general,  requires  that  he  should  obey  them.  I  was 
strongly  inclined  to  think,  that  where,  in  consequence  of  orders  from 
the  legitimate  authority,  a  vessel  is  seized,  with  pure  intention,  the 
claim  of  the  injured  party  for  damages  would  be  against  that  govern- 
ment from  which  the  orders  proceeded,  and  would  be  a  proper  sub- 
ject for  negotiation.  But  I  have  been  convinced  that  I  was  mistaken, 
and  I  have  receded  from  this  first  opinion.  I  acquiesce  in  that  of  my 
brethren,  which  is,  that  the  instructions  cannot  change  the  nature  of 
the  transaction,  nor  legalize  an  act  which,  without  those  instructions, 
would  have  been  a  plain  trespass. 

It  becomes,  therefore,  unnecessary  to  inquire  whether  the  probable 
cause  afforded  by  the  conduct  of  the  Flying  Fish  to  suspect  her  of  be- 
ing an  American,  would  excuse  Captain  Little  from  damages  for  hav- 
ing seized  and  sent  her  into  port?  since,  had  she  been  an  American, 
the  seizure  would  have  been  unlawful.  Captain  Little,  then,  must  be 
answerable  in  damages  to  the  owner  of  this  neutral  vessel,  and  as  the 
account  taken  by  order  of  the  circuit  court  is  not  objectionable  on  its 
face,  and  has  not  been  excepted  to  by  counsel  before  the  proper  tribu- 
nal, this  court  can  receive  no  objection  to  it. 

There  appears,  then,  to  be  no  error  in  the  judgment  of  the  circuit 
court,  and  it  must  be  affirmed  with  costs.' 

Tin  Hooper,  Adm'r,  v.  TInited  States,  22  Ct.  CI.  408,  439  (1887),  Davis,  J., 
said : 

"The  distinction  must  not  be  forgotten  between  a  legal  and  justifiable  seizure 
and  an  illegal  and  unjustifiable  condemnation.  The  seizure  of  a  vessel  may 
be  successfully  defended  upon  grounds  which  would  not  support  a  subsequent 
condemnation^  and  'prize  courts  deny  damages  when  there  was  probable  cause 
for  the  seizure,  and  are  often  justified  in  awarding  to  the  captors  their  costs . 
and  expenses,'  even  when  the  vessel  and  cargo  are  decided  not  good  prize 
and  are  returned  to  their  owners.  The  Thompson,  3  Wall.  155,  18  Ty.  Ed.  55 
(1865);  Jecker  v.  Montgomery,  13  How.  498,  14  L.  Ed.  240  (1851);  Murray  v. 
The  Charming  Betsey,  2  Cranch,  64.  2  L.  Ed.  208  (1804)." 

The  "Instructions  for  the  Navy  of  the  United  States  Governing  Maritime 
Warfare,"  issued  in  June,  1917,  thus  deal  with  the  question  of  the  responsibil- 
ity raised  in  the  case  of  The  Flying  Fish,  supra: 

"78.  An  officer  making  a  capture  is  held  by  the  courts  of  the  United  States 
to  be  personally  liable  in  damages  unless  the  capture  made  by  him  is  for 
probable  cause. 

"79.  Probable  cause  is  defined  by  the  Supreme  Court  of  the  United  States 
as  follows:  'Probable  cause  exists  where  there  are  circumstances  sufficipnt 
to  warrant  suspicion,  though  it  may  turn  out  that  the  facts  are  not  sufficient 
to  warrant  condemnation.  And  whether  they  are  or  not  can  not  be  determin- 
ed unless  the  customary  proceedings  of  prize  are  instituted  and  enforced.  Per 
Chief  Justice  Fuller,  in  The  Olinde  Rodrigues,  174  T'.  S.  510,  19  Sup.  Ct.  851, 
43  L.  Ed.  1065  (1899).  ♦  •  *  The  term  'probable  cause,'  according  to  its 
usual  acceptation,  means  less  than  evidence  which  would  justify  condemna- 
tion;  and  in  all  cases  of  seizure  has  a  fixed  and  well-known  meaning.  It 
imports  a  seizure  made  under  circumstances  which  warrant  suspicion.  Per 
Chief  Justice  Marshall  in  Locke  v.  U.  S.,  7  Cranch,  339,  3  L.  Ed.  364  (1813).' " 


756  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Pait  3 


THE  PANAMA. 

(Supreme  Court  of  the  United  States,  1899.    176  U.  S.  535,  20  Sup.  Ct.  480,  44 

L.  Ed.  577.) 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court.*     *     *     * 

The  recent  war  with  Spain,  as  declared  by  the  Act  of  Congress  of 
April  25,  1898,  c.  189,  and  recognized  in  the  President's  pi-oclamation 
of  April  26,  1898,  existed  on  and  after  April  21,  1898.  30  Stat.  364, 
1770.  This  proclamation  declared  among  the  rules  on  which  the  war 
would  be  conducted,  the  following : 

"4.  Spanish  merchant  vessels,  in  any  ports  or  places  within  the  Unit- 
ed States,  shall  be  allowed  till  May  21,  1898,  inclusive,  for  loading  their 
cargoes  and  departing  from  such  poris  or  places ;  and  such  Spanish 
merchant  vessels,  if  met  at  sea  by  any  United  States  ship,  shall  be 
permitted  to  continue  their  voyage  if,  on  examination  of  their  papers, 
it  shall  appear  that  their  cargoes  were  taken  on  board  before  the  expira- 
tion of  the  above  term:  Provided,  that  nothing  herein  contained  shall 
apply  to  Spanish  vessels  having  on  board  any  officer  in  the  military  or 
naval  service  of  the  enemy,  or  any  coal  (except  such  as  may  be  neces- 
sary for  their  voyage),  or  any  other  article  prohibited  or  contraband 
of  war,  or  any  despatch  of  or  to  the  Spanish  government."     *     *     * 

"6.  The  right  of  search  is  to  be  exercised  with  strict  regard  for  the 
rights  of  neutrals,  and  the  voyages  of  mail  steamers  are  not  to  be  inter- 
fered with  except  on  the  clearest  grounds  of  suspicion  of  a  violation 
of  law  in  respect  of  contraband  or  blockade." 

It  has  been  decided  by  this  court,  in  the  recent  case  of  The  Buena 
Ventura,  175  U.  S.  384,  20  Sup.  Ct.  148,  44  L.  Ed.  206,  that  a  Spanish 
merchant  vessel,  which  had  sailed  before  April  21,  1898,  from  a  port 
of  the  United  States  on  a  voyage  to  a  foreign  port  not  having  on  board 
any  officer  in  the  military  or  naval  service  of  Spain,  nor  any  article 
contraband  of  war,  nor  any  despatch  of  or  to  the  Spanish  government, 
was  protected  by  the  fourth  clause  of  the  President's  proclamation  of 
April  26,  1898,  from  condemnation  while  on  that  voyage;  but  that 
her  capture,  before  that  proclamation  was  issued,  was  with  probable 
cause ;  and  that  she  should  therefore  be  ordered  to  be  restored  to 
her  owner,  but  without  damages  or  costs.  That  case  would  be  decisive 
of  this  one,  but  for  the  mails  and  the  arms  carried  by  the  Panama,  and 
th^  contract  with  the  Spanish  government  under  which  the  arms  were 
put  on  board. 

It  was  argued  in  behalf  of  the  claimant  that,  independently  of  her 
being  a  merchant  vessel,  she  was  exempt  from  capture  by  reason  of 
her  being  a  mail  steamship  and  actually  carrying  mail  of  the  United 
States. 

There  are  instances  in  modern  times,  in  which  two  nations,  by  con- 
vention between  themselves,  have  made  special  agreements  concerning 

8  Parts  of  the  opinion  are  omitted. 


Ch.  11)  CAPTURE   AT   SEA  757 

mail  ships.  But  international  agreements  for  the  immunity  of  the 
mail  ships  of  the  contracting  parties  in  case  of  war  between  them  have 
never,  we  believe,  gone  farther  than  to  provide,  as  in  the  postal  con- 
vention between  the  United  States  and  Great  Britain  in  1848,  in  that 
between  Great  Britain  and  France  in  1833,  and  in  other  similar  con- 
ventions, that  the  mail  packets  of  the  two  nations  shall  continue  their 
navigation,  without  impediment  or  molestation,  until  a  notification  from 
one  of  the  governments  to  the  other  that  the  service  is  to  be  discontin- 
ued ;  in  which  case  they  shall  be  permitted  to  return  freely,  and  un- 
der special  protection,  to  their  respective  ports.  And  the  writers  on 
international  law  concur  in  affirming  that  no  provision  for  the  immu- 
nity of  mail  ships  from  capture  has  as  yet  been  adopted  by  such  a  gen- 
eral consent  of  civilized  nations  as  to  constitute  a  rule  of  international 
law.  9  Stat.  969;  Wheaton  (8th  Ed.)  pp.  659-661,  Dana's  note;  Calvo 
(5th  Ed.)  §§  2378,  2809;  De  Boeck,  §§  207,  208.  De  Boeck,  in  sec- 
tion 208,  after  observing  that,  in  the  case  of  mail  packets  between  bel- 
ligerent countries,  it  seems  difficult  to  go  farther  than  in  the  conven- 
tion of  1833,  above  mentioned,  proceeds  to  discuss  the  case  of  mail 
packets  between  a  belligerent  and  a  neutral  country,  as  follows :  "It 
goes  without  saying  that  each  belligerent  may  stop  the  departure  of  its 
'own  mail  packets.  But  can  either  intercept  enemy  mail  packets? 
There  can  be  no  question  of  intercepting  neutral  packets,  because  com- 
munications between  neutrals  and  belligerents  are  lawful,  in  principle, 
saving  the  restrictions  relating  to  blockade,  to  contraband  of  war,  and 
the  like ;  the  right  of  search  furnishes  belligerents  with  a  sufficient 
means  of  control.     But  there  is  no  doubt  that  it  is  possible,  according 

to  existing  practice,  to  intercept  and  seize  the  enemy's  mail  packets." 

*     *     * 

Without  an  express  order  of  the  government,  a  merchant  vessel  is  not 
privileged  from  search  or  seizure  by  the  fact  that  it  has  a  government 
mail  on  board.  The  Peterhoff,  5  Wall.  28,  61,  18  L.  Ed.  564.  The 
mere  fact,  therefore,  that  the  Panama  was  a  mail  steamship,  or  that 
she  carried  mail  of  the  United  States  on  this  voyage,  does  not  afford 
any  ground  for  exempting  her  from  capture. 

The  remaining  question  in  the  case  is  whether  the  Panama  came 
within  the  class  of  vessels  described  in  the  fourth  clause  of  the  Presi- 
dent's proclamation  of  April  26,  1898,  as  "Spanish  merchant  vessels," 
and  as  not  "Spanish  vessels  having  on  board  any  officer  in  the  mili- 
tary or  naval  service  of  the  enemy,  or  any  coal  (except  such  as  may 
be  necessary  for  iheir  voyage)  or  any  other  article  prohibited  or  con- 
traband of  war,  or  any  dispatch  of  or  to  the  Spanish  govern- 
ment." 

On  the  part  of  the  claimant,  it  was  argued  that  the  arms  which  tlie 
Panama  carried,  under  the  requirements  of  her  mail  contract  and  for 
the  protection  of  the  mails,  are  not  to  be  regarded  as  contraband  or 
munitions  of  war,  within  the  sense  of  this  clause;   that  "contraband," 


758  RIGHTS  AND   DUTIES  OP  NATIONS  IN   TIME   OF  WAR         (Part  3 

as  therein  referred  to,  means  contraband  cargo,  not  contraband  por- 
tion of  the  ship's  permanent  equipment;  and  that,  if  the  furnishings 
of  a  ship  could  be  regarded  as  contraband,  every  ship  would  have 
contraband  on  board. 

On  the  other  hand,  it  was  contended,  in  support  of  the  condemna- 
tion, that  the  arms  which  the  Panama  carried,  belonging  to  her  owner, 
were  contraband  of  war,  and  rendered  her  liable  to  capture ;  and  that 
by  reason  of  her  being  so  armed,  and  of  the  provisions  of  her  mail 
contract  with  the  Spanish  government,  requiring  her  armament,  and 
recognizing  the  right  of  that  government,  in  case  of  a  suspension  of 
the  mail  service  by  war,  to  take  possession  of  her  for  warlike  pur- 
poses, she  cannot  be  considered  as  a  merchant  vessel,  within  the  mean- 
ing of  the  proclamation,  but  must  be  treated  like  any  regular  vessel  of 
the  Spanish  navy  under  similar  circumstances.     *     *     * 

The  Panama  was  a  steamship  of  1,432  tons  register,  carrying  a  crew 
of  71  men  all  told,  owned  by  a  Spanish  corporation,  sailing  under  the 
Spanish  flag,  having  a  commission  as  a  royal  mail  ship  from  the  gov- 
ernment of  Spain,  and  plying  from  and  to  New  York  and  Havana  and 
various  Mexican  ports,  with  general  cargoes,  passengers  and  mails.  At 
the  time  of  her  capture,  she  was  on  a  voyage  from  New  York  to  Ha- 
vana, and  had  on  board  two  breech-loading  Hontoria  guns  of  nine 
centimetre  bore,  one  mounted  on  each  side  of  the  ship,  one  Maxim 
rapid-firing  gun  on  the  bridge,  twenty  Remington  rifles  and  ten  Mauser. 
rifles,  with  ammunition  for  all  the  guns  and  rifles,  and  thirty  or  forty 
cutlasses.  The  guns  had  been  put  on  board  three  years  before,  and 
the  small  arms  and  ammunition  had  been  on  board  a  year  or  more. 
Her  whole  armament  had  been  put  on  board  by  the  company  in  com- 
pliance with  its  mail  contract  with  the  Spanish  government  (made 
more  than  eleven  years  before,  and  still  in  force),  which  specifically 
required  every  mail  steamship  of  the  company  to  "take  on  board,  for 
her  own  defence,"  such  an  armament,  with  the  exception  of  the  Maxim 
gun  and  the  Mauser  rifles.  That  contract  contains  many  provisions 
looking  to  the  use  of  the  company's  steamships  by  the  Spanish  gov- 
ernment as  vessels  of  war.  Among  other  things,  it  requires  that  each 
vessel  shall  have  the  capacity  to  carry  500  enlisted  men ;  that  that  gov- 
ernment, upon  inspection  of  her  plans  as  prepared  for  commercial  and 
postal  purposes,  may  order  her  deck  and  sides  to  be  strengthened  so 
as  to  support  additional  artillery ;  and  that  in  case  of  the  suspension 
of  the  mail  service  by  a  naval  war,  or  by  hostilities  in  any  of  the  seas 
or  ports  visited  by  the  company's  vessels,  the  government  may  take 
possession  of  them  with  their  equipment  and  supplies,  at  a  valuation 
to  be  made  by  a  commission ;  and  shall,  at  the  termination  of  the  war, 
return  them  to  the  company,  .paying  five  per  cent  on  the  valuation 
while  it  has  them  in  its  service,  as  well  as  an  indemnity  for  any  dimi- 
nution in  their  value.  The  Panama  was  not  a  neutral  vessel ;  but  she 
was  enemy  property,  and  as  such,  even  if  she  carried  no  arms  (either 


Ch.  11)  CAPTURE  AT  SEA  759 

as  part  of  her  equipment,  or  as  cargo),  would  be  liable  to  capture,  un- 
less protected  by  the  President's  proclamation. 

It  may  be  assumed  that  a  primary  object  of  her  armament,  and,  in 
time  of  peace,  its  only  object,  was  for  purposes  of  defence.  But  that 
armament  was  not  of  itself  inconsiderable,  as  appears,  not  only  from 
the  undisputed  facts  of  the  case,  but  from  the  action  of  the  District 
Court,  upon  the  application  of  the  commodore  commanding  at  the  port 
where  the  court  was  held,  and  on  the  recommendation  of  the  prize 
commissioners,  directing  her  arms  and  ammunition  to  be  delivered  to 
the  commodore  for  the  use  of  the  Navy  Department.  And  the  contract 
of  her  owner  with  the  Spanish  government,  pursuant  to  which  the  ar- 
mament had  been  put  on  board,  expressly  provided  that,  in  case  of  war, 
that  government  might  take  possession  of  the  vessel  with  her  equip- 
ment, increase  her  armament,  and  use  her  as  a  war  vessel ;  and,  in 
these  and  other  provisions,  evidently  contemplated  her  use  for  hostile 
purposes  in  time  of  war.  She  was,  then,  enemy  property,  bound  for 
an  enemy  port,  carrying  an  armament  susceptible  of  use  for  hostile 
purposes,  and  herself  liable,  upon  arrival  in  that  port,  to  be  appropriat- 
ed by  the  enemy  to  such  purposes. 

The  intent  of  the  fourth  clause  of  the  President's  proclamation  was 
to  exempt  for  a  time  from  capture  peaceful  commercial  vessels;  not 
to  assist  the  enemy  in  obtaining  weapons  of  war.  This  clause  exempts 
"Spanish  merchant  vessels"  only;  and  expressly  declares  that  it  shall 
not  apply  to  "Spanish  vessels  having  on  board  any  officer  in  the  mili- 
tary or  naval  service  of  the  enemy,  or  any  coal  (except  such  as  may 
be  necessary  for  their  voyage)  or  any  other  article  prohibited  or  con- 
traband of  war,  or  any  despatch  of  or  to  the  Spanish  government." 

Upon  full  consideration  of  this  case,  this  court  is  of  opinion  that 
the  proclamation,  expressly  declaring  that  the  exemption  shall  not 
.apply  to  any  Spanish  vessel  having  on  board  any  article  prohibited  or 
contraband  of  war,  or  a  single  military  or  naval,  officer,  or  even  a 
despatch,  of  the  enemy,  cannot  reasonably  be  construed  as  including, 
in  the  description  of  "Spanish  merchant  vessel,"  which  are  to  be  tem- 
porarily exempt  from  capture,  a  Spanish  vessel  owned  by  a  subject  of 
the  enemy;  having  an  armament  fit  for  hostile  use;  intended  in  the 
event  of  war,  to  be  used  as  a  war  vessel ;  destined  to  a  port  of  the 
enemy;  and  liable,  on  arriving  there,  to  be  taken  possession  of  by  the 
enemy,  and  employed  as  an  auxiliary  cruiser  of  the  enemy's  navy,  in 
the  war  with  this  country. 

The  result  is,  that  the  Panama  was  lawfully  captured  and  con- 
demned, and  that  the  decree  of  the  District  Court  must  be  affirmed. 

Mr.  Justice  Peckham  dissented.' 

«  By  the  Declaration  of  Paris  of  1S56,  parties  to  that  instrument  and  powers 
which  have  since  adhered  to  it  renounced  the  right  to  issue  to  private  vessels 
letters  of  marque  and  reprisal,  by  which  such  vessels  were  authorized  to  carry 
on  hostilities  at  sea.  Merchantmen,  however,  can  render  service  in  war,  es- 
pecially if  they  are  planned  and  built  in  such  a  way  that  they  could  be  con- 


760  RIGHTS  AND   DUTIES   OF   NATIONS  IN   TIME   OF   WAR         (Part  3 


THE  MARQUIS  DE  SOMERUELES. 

(Court  of  Vice  Admiralty  of  Halifax,  1813.    Stewart's  Vice  Admiralty  Reports, 
Nova  Scotia,  1803-1814,  482.) 

The  petition  was  supported  by  the  Solicitor  General,  and  opposed, 
though  not  strenuously,  by  the  King's  Advocate,  the  captors  not  con- 
senting to  the  restitution  of  the  property. 

Dr.  Croke.^°  This  petition  is  of  a  different  kind  from  what  usually 
engages  the  attention  of  the  court.  It  prays,  that  certain  paintings 
and  prints,  which  were  captured  on  board  the  American  vessel  called 
the  Marquis  de  Somerueles,  may  be  restored  to  the  petitioner  on  be- 
half of  a  scientific  establishment  at  Philadelphia.  The  ground  of  the 
petition  is  contained  in  a  letter  annexed  to  it,  which  states :    "That  in 

verted  to  a  warlike  use.  To  meet  the  requirements  of  the  Declaration  of  Paris 
they  would  need  to  be  taken  over  by  the  government  converting  them,  placed 
under  the  command  of  officers  in  the  naval  service  of  that  country,  subjected 
to  naval  discipline,  and  entered  in  the  list  of  public  vessels.  The  act  of  con- 
version should  be  notified  to  the  belligerent,  in  order  that  the  converted 
vessel  should  possess  the  rights  of  a  war  vessel,  and  to  neutrals  in  order  that 
it  should  be  treated  by  them  as  a  man  of  war. 

Convention  VII  of  the  Second  Hague  Conference  of  1907  (Appendix,  post, 
p.  1150)  deals  with  these  subjects.  Unfortunately  the  parties  to  the  convention 
were  not  able  to  agree  upon  the  place  of  conversion.  It  was  universally  ad- 
mitted that  a  merchantman  might  be  converted  within  the  jurisdiction  of  the 
state  seeking  to  convert  it.  It  was  maintained  by  some  of  the  states,  particu- 
larly Germany,  and  denied  by  others,  particularly  Great  Britain,  that  con- 
version could  take  place  upon  the  high  seas.  The  United  States  was  not  a 
party  to  this  Convention. 

The  question  has  arisen  whether  a  merchantman  which  has  been  converted 
may  be  reconverted.  Gennany  insisted  at  the  Second  Hague  Peace  Confer- 
ence of  1907  that  reconversion  should  not  be  permitted  during  tlae  war,  but 
this  contention  was.  not  adopted.  In  1915,  after  the  battle  of  Falkland,  Great 
Britain  reconverted  certain  auxiliary  vessels,  and  wished  to  have  them  enter 
Chilean  jurisdiction  in  their  reconverted  quality  of  merchantmen.  Under 
these  conditions  the  British  Minister  to  Chile  laid  the  facts  before  the  govern- 
ment of  that  country  on  February  4,  1915,  and  requested  its  opinion  as  to  the 
status  of  these  vessels.  Chile  replied  in  a  note  dated  March  15,  1915,  that  re- 
converted auxiliaries  would  be  accorded  the  privileges  of  merchantmen  upon 
the  following  five  conditions :  , 

"1.  That  the  auxiliary  cruiser  shall  not  have  violated  Chilean  neutrality ; 

"2.  That  the  reconversion  shall  be  effected  in  the  ports  or  waters  within  the 
jurisdiction  of  the  country  to  which  the  vessel  belongs  or  in  the  ports  of  its 
allies ; 

"3.  That  this  reconversion  shall  be  effective,  that  is  to  say,  that  the  vessel 
shall  not  show,  either  in  its  crew  or  in  its  fittings,  that  it  can  lend  assistance 
directly  to  "the  armed  fleet  of  its  country  in  the  capacity  of  an  auxiliary 
cruiser,  such  as  it  formerly  was; 

"4.  That  the  government  of  the  country  to  which  the  vessel  belongs  shall 
communicate  to  all  the  interested  nations,  and  especially  to  neutrals,  the 
names  of  the  auxiliary  cruisers  which  shall  have  lost  this  character  and  as- 
sumed the  character  of  merchant  vessels;    and 

"5.  That  the  same  government  shall  bind  itself  by  the  pledge  that  the  said 
vessels  shall  not  in  future  be  destined  for  the  service  of  the  armed  fleet  in 
the  character  of  auxiliary  cmisers."  Alejandro  Alvarez,  La  Grande  Guerre 
Europeenne  et  la  >eutralitg  du  Chili,  Paris,  1915,  p.  256. 

10  Parts  of  opinion  omitted. 


Ch.  11)  CAPTURE  AT   SEA  761 

the  Somerueles,  from  Italy,  was  taken  a  case  belonging  to  the  Academy 
of  Arts  in  that  city,  containing  twenty-one  paintings  and  fifty-two 
prints ;  that  they  were  presented  to  the  Academy  by  Mr.  Joseph  Allen 
Smith,  who  has  already  given  most  objects  of  the  statuary,  paintings, 
and  prints  which  they  possess ;  indeed  this  is  the  remnant  of  what  he 
collected  for  the  purpose  of  assisting  in  its  formation.  The  value  we 
know  not,  but  in  this  country,  and  in  an  infant  estabUshment,  every 
accession  is  important.  The  Academy  is  now  preparing  an  application 
for  them,  which  will  be  handed  with  an  accompanying  letter  from  An- 
thony St.  John  Baker,  late  Secretary  of  Mr.  Foster,  who  has  exam- 
ined into  the  circumstances — knowing  that  even  war  does  not  leave 
science  and  art  unprotected,  and  that  Britons  have  often  considered 
themselves  at  peace  with  these,  we  are  not  without  hopes  of  seeing 
them."' 

Heaven  forbid,  that  such  an  application  to  the  generosity  of  Great 
Britain  should  ever  be  ineffectual.  The  same  law  of  nations,  which 
prescribes  that  all  property  belonging  to  the  enemy  shall  be  liable  to 
confiscation,  has  likewise  its  modifications  and  relaxations  of  that  rule. 
The  arts  and  sciences  are  admitted  amongst  all  civilized  nations,  asy 
forming  an  exception  to  the  severe  rights  of  warfare,  and  as  entitled-' 
to  favour  and  protection.  They  are  considered  not  as  the  peculLum 
of  this  or  of  that  nation,  but  as  the  property  of  mankind  at  large,  and 
as  belonging  to  the  common  interests  of  the  whole  species.     *     *     * 

In  thus  favouring  an  institution  of  this  kind,  besides  contributing  to 

the  maintenance  of  such  a  reciprocal  exchange  of  civilities  with  our 

enemy  as  is  consistent  with  the  state  of  hostilities,  we  shall  perhaps 

at  the  same  time  promote  most  eft'ectually  our  own  best  interests. 

There  is  a  natural  connexion  between  all  the  arts  and  sciences,  as  well 

material,  as  intellectual.     It  is  impossible  for  a  nation  to  improve  in 

the  polite  arts  without  a  corresponding  amelioration  in  the  practical 

science  of  human  nature.     It  is  a  school-boy  quotation,  but  not  the 

less  true  for  being  trite,  that 

"Ingenuas  didicisse  fideliter  artes 
EmoUit  mores;    nee  sinit  esse  feros." 

This  observation  is  founded  in  nature,  for  what  is  usually  called 
taste  is  only  good  sense  applied  to  the  polished  ornaments  of  life ;  and 
correct  ideas  in  morality  are  the  same  good  sense  directed  to  human 
actions.  All  absurdities,  and  deviations  from  rectitude,  are  nothing 
more  than  a  bad  taste  influencing  human  conduct.  The  public  stand- 
ard of  morals  will  therefore  always  rise  with  the  advancement  of  the 
polite  arts.  Minds,  accustomed  to  the  contemplation  of  picturesque 
excellence,  cannot  fail  of  being  disgusted  with  any  departure  from 
the  sublimer  form  of  moral  beauty. 

In  the  United  States,  such  improvements  are  not  improbable,  or 
perhaps  very  remote,  and  cannot  fail  of  being  advantageous  to  both 
countries.     They  have  shewn  themselves  not  incapable  of  producing 


762  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF  WAR         (Part  3 

genius  in  these  departments.  The  very  eminent  artist  who  now  pre- 
sides, with  SO  much  credit  to  the  country,  and  so  much  benefit  to  the 
students,  in  the  Royal  Academy  of  Great  Britain,  owes  his  birth  and 
earlier  education  to  that  countr}^  The  time  may  shortly  come  when 
in  an  advanced  state  of  the  arts,  to  which  this  very  institution,  which 
is  now  before  the  court  as  a  petitioner,  may  contribute  its  share,  new 
Wests  may  arise  to  revive  the  school  of  Rafaelle  in  the  wilds  of  Amer- 
ica. 11  *  *  *  When  such  an  improved  state  of  society  shall  take 
place,  there  can  be  no  doubt  but  that  the  two  nations  of  brethren,  on 
the  opposite  shores  of  the  Atlantic,  will  be  united  in  the  indissoluble 
bonds  of  friendship,  as  well  by  inclination  as  by  a  common  interest; 
they  will  cultivate  in  unison  the  advantages  of  an  enlightened  com- 
merce ;  they  will  labour  together  in  the  furtherance  of  the  useful  arts, 
and  will  experience  no  other  enmity  than  a  liberal  rivalship  in  every 
elegant  and  manly  accomplishment. 

Not  to  disappoint  the  expectations  which  have  been  entertained  of 
the  liberality  of  this  country,  and  to  give  every  encouragement  to  an 
infant  society,  whose  views  and  objects  are  so  laudable  and  beneficial, 
with  real  sensations  of  pleasure,  and  the  sincerest  wishes  for  its  suc- 
cess and  prosperity,  in  conformity  to  the  law  of  nations,  as  practiced 
by  all  civilized  countries,  I  decree  the  restitution  of  the  property  which 
has  been  thus  claimed. 


THE  BERLIN. 

(High  Court  of  Justice,  Admiralty  Division,  1914.    L.  R.  1914,  Prob.  Div.  265.) 

On  August  4,  1914,  war  was  declared  between  Great  Britain  and 
Germany,  and  on  the  following  day,  about  11 :30  a.  m.,  H.  M.  S.  Prin- 
cess Royal  captured,  some  hundred  miles  from  the  nearest  coast 
(Great  Britain)  and  some  500  miles  from  her  home  port  (Emden),  the 
Berlin,  a  German  drift  fishing  sailing  cutter  (W.  Heine,  master),  of 
110  metric  tons,  owned  by  the  Emden  Herring  Fishing  Company.  She 
carried  a  crew  of  fifteen  hands,  and  had  on  board  350  empty  barrels, 
100  barrels  of  salt,  50  barrels  of  cured  herrings,  15  barrels  of  ship's 
stores,  and  two  drift  nets.  It  appeared  from  her  log  that  he  had  been 
on  a  fishing  voyage  in  the  North  Sea,  and  from  a  confidential  report 
submitted  to  the  President  and  made  by  the  commander  of  the  cruiser, 
the  court  gathered  that,  owing  to  the  exigencies  of  the  service,  after 
capturing  the  vessel  in  about  the  locality  mentioned  above,  he  had 

11  The  "very  eminent  artist"  referred  to  was  none  other  than  Benjamin 
West.  Born  in  the  wilds  of  Pennsylvania,  then  a  colony,  in  1738,  he  died  in 
London,  in  1820,  as  President  of  the  Royal  Academy.  Largely  self-taught,  he 
settled  in  London  in  1763,  and  succeeded  Sir  Joshua  Reynolds  as  President  of 
the  Royal  Academy  in  1792,  which  position  he  held  during  the  balance  of  his 
life.  His  place  in  art  rests  securely  upon  an  American  subject,  his  "Death  of 
Wolfe,"  which  was  exhibited  in  1771. 


Ch.  11)  CAPTURE   AT   SEA  763 

given  the  Berlin  into  the  charge  of  the  steamship  Ailsa,  and  by  that 
vessel  she  was  brought,  on  the  early  morning  of  August  6,  into  Wick 
Harbour,  where  the  chief  officer  of  customs  took  possession,  retaining 
her  as  prize  captured  at  sea,  and,  on  behalf  of  the  crown,  application 
v^^as  now  made  for  the  condemnation  and  sale  of  the  vessel  and  her 
cargo. 

Sir  Samuel  Evans,  President.^  ^  *  *  *  f  }^g  question  now  re- 
mains v^hether  this  vessel,  the  Berlin,  is  immune  from  capture  as  a 
coast  fishing  vessel.  The  history  of  the  varying  practices  in  this  and 
other  countries  of  exempting  from  capture  in  war  vessels  engaged  in 
coast  fishing  up  to  the  year  1899  has  been  given  in  the  Supreme  Court 
of  the  United  States  of  America  in  the  case  of  The  Paquete  Habana  and 
The  Lola,  175  U.  S.  677,  20  Sup.  Ct.  290,  44  L.  Ed.  320.  The  judgment 
of  the  court  was  delivered  by  Gray,  J.  It  is  full  of  research,  learning, 
and  historical  interest.  As  such  an  elaborate  and  complete  resume  is 
available  in  that  judgment,  it  would  be  a  work  of  supererogation  for 
me  to  attempt  to  perform  a  similar  task.  The  conclusions  stated  by 
Gray,  J.,  and  which  form  the  judgment  of  the  majority  of  the  Supreme 
Court,  w.ere  as  follows : 

"This  review  of  the  .precedents  and  authorities  on  the  subject  ap- 
pears to  us  abundantly  to  demonstrate  that  at  the  present  day,  by  the 
general  consent  of  the  civilized  nations  of  the  world,  and  independ- 
ently of  any  express  treaty  or  other  public  act,  it  is  an  established  rule 
of  international  law,  founded  on  considerations  of  humanity  to  a  poor 
and  industrious  order  of  men,  and  of  the  mutual  convenience  of  bel- 
ligerent states,  that  coast  fishing  vessels,  with  their  implements  and 
supplies,  cargoes  and  crews,  unarmed,  and  honestly  pursuing  their 
peaceful  calling  of  catching  and  bringing  in  fresh  fish,  are  exempt  from 
capture  as  prize  of  war.  The  exemption,  of  course,  does  not  apply  to 
coast  fishermen  or  their  vessels  if  employed  for  a  warlike  purpose,  or 
in  such  a  way  as  to  give  aid  or  information  to  the  enemy;  nor  when 
military  or  naval  operations  create  a  necessity  to  which  all  private  in- 
terests must  give  way.  Nor  has  the  exemption  been  extended  to  ships 
or  vessels  employed  on  the  high  seas  in  taking  whales  or  seals,  or  cod, 
or  other  fish  which  are  not  brought  fresh  to  market,  but  are  salted  or 
otherwise  cured  and  made  a  regular  article  of  commerce.  This  rule 
of  international  law  is  one  which  prize  courts,  administering  the  law 
of  nations,  are  bound  to  take  judicial  notice  of,  and  to  give  eflect  to, 
in  the  absence  of  any  treaty  or  other  public  act  of  their  own  govern- 
ment in  relation  to  the  matter." 

Since  the  date  when  that  judgment  was  pronounced  the  matter  has 
been  dealt  with  by  Japan  in  its  Prize  Regulations,  and  in  some  of  its 
prize  court  decisions,  and  it  forms  also  the  subject  of  an  article  in  one 
of  the  Hague  Conventions  of  1907.    Article  35  of  the  Japanese  Regu- 

12  Part  of  the  opinion  is  omitted. 


764  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   WAR         (Part  3- 

lations  governing  captures  at  sea,  which  came  into  force  on  March  15, 
1904,  provides  as  follows : 

"All  enemy  vessels  shall  be  captured.  Vessels  belonging  to  one  of 
the  following  categories,  however,  shall  be  exempted  from  capture  if 
it  is  clear  that  they  are  employed  solely  for  the  industry  or  under- 
taking for  which  they  are  intended : 

"(1)  Vessels  employed  for  coast  fishery. 

"(2)  Vessels  making  voyages  for  scientific,  philanthropic,  or  reli- 
gious purposes. 

"(3)  Lighthouse  vessels  and  tenders. 

"(4)  Vessels  employed  for  exchange  of  prisoners." 

In  the  case  of  The  Michael,  Russian  and  Japanese  Prize  Cases 
(1913),  vol.  2,  p.  80,  heard  in  the  Japanese  Prize  Court  in  1905,  which 
related  to  what  was  alleged  to  be  a  deep-sea  fishing  vessel,  it  was 
claimed  that:  "The  vessel,  though  a  deep-sea  fishing  vessel,  was  not 
engaged  in  traffic  forbidden  in  time  of  war,  nor  was  she  carrying  con- 
traband of  war,  and  consequently  being  harmless  should  be  released, 
in  accordance  with  the  intention  which  underlies  the  exemption  from 
capture  of  small  coastal  fishing  boats."  Upon  this  the  decision  of 
the  court  ran  as  follows :  "The  claimants  also  argued  that  the  vessel 
should  be  released  in  accordance  with  the  intention  underlying  the 
exemption  from  capture  of  small  coastal  fishing  boats;  but  the  usage 
of  international  law  by  which  small  coastal  fishing  boats  are  not  cap- 
tured arises  mainly  from  the  desire  not  to  inflict  distress  upon  poor 
people  who  are  not  connected  with  the  war,  and  the  principle  cannot 
be  extended  to  a  vessel  like  the  Michael,  which  was  the  property  of  a 
company  and  engaged  in  deep-sea  fishing." 

The  point  was  not  raised  in  the  Higher  Prize  (Appeal)  Court.  Sim- 
ilarly, in  the  case  of  The  Alexander,  Id.,  p.  86,  the  same  court  pro- 
nounced as  follows :  "It  is  also  argued  by  the  claimants  that  the  vessel 
should  be  released  in  accordance  with  the  intention  underlying  the 
exemption  from  capture  of  small  coastal  fishing  vessels,  but  the  usage 
of  international  law  by  which  small  coastal  fishing  vessels  are  not 
captured  arises  mainly  from  the  desire  not  to  inflict  distress  on  poor 
people  who  are  not  connected  with  the  war,  and  clearly  cannot  be  ex- 
tended to  a  vessel  like  the  Alexander,  the  property  of  a  company,  and, 
moreover,  engaged  in  deep-sea  fishing." 

Upon  appeal  one  of  the  grounds  of  appeal  was:  "Again,  the  rea- 
soning in  the  decision  appealed  from,  that  as  the  exemption  from  cap- 
ture of  small  coastal  fishing  vessels  chiefly  arose  from  a  desire  not 
to  inflict  distress  upon  poor  people  unconnected  with  the  war,  it  could 
not  therefore  be  extended  to  a  vessel  like  the  Alexander,  which  was 
engaged  in  deep-sea  fishing,  shows  that  the  claimants'  point  had  not 
been  understood.  What  the  claimants  desired  was  that  the  Imperial 
Prize  Court  should  in  the  light  of  recent  developments  in  international 
law,  not  adhere  to  old  usages,  but  create  new  precedents." 


Ch.  11)  CAPTURE   AT   SEA  7G5 

Upon  which  the  court  adjudged  in  somewhat  quaint  fashion  as  fol- 
lows: "The  appellants  also  desired  that  a  new  precedent  should  be 
established  in  the  light  of  recent  developments  of  international  law  by 
the  exemption  from  capture  of  a  vessel  which,  as  in  the  present  case, 
was  engaged  in  deep-sea  fishing.  *  *  *  ^hg  appellants'  request 
that  a  new  precedent  should  be  created  by  the  exemption  from  cap- 
ture of  a  deep-sea  fishing  vessel  is  nothing  more  than  the  simple  expres- 
sion of  their  hopes,  and  this  ground  of  the  appeal  is  therefore  also 
devoid  of  substance." 

I  do  not  propose  to  make  any  pronouncement  in  the  case  now  before 
the  court  as  to  whether  the  German  Empire  or  its  citizens  have  in  the 
circumstances  of  this  war  the  right  to  claim  the  benefit  of  the  Hague 
Conventions.  But  in  order  to  shew  how  the  doctrine  with  which  I 
am  now  dealing  has  been  treated  by  the  nations  with  the  progress  of 
years  and  events,  I  refer  to  article  3  of  the  Hague  Convention,  XI, 
1907,  which  is  as  follows: 

"Vessels  employed  exclusively  in  coast  fisheries,  or  small  boats  em- 
ployed in  local  trade,  are  exempt  from  capture,  together  with  their 
appliances,  rigging  and  cargo.  This  exemption  ceases  as  soon  as  they 
take  any  part  whatever  in  hostilities.  The  contracting  Powers  bind 
themselves  not  to  take  advantage  of  the  harmless  character  of  the 
said  vessels  in  order  to  use  them  for  military  purposes  while  preserv- 
ing their  peaceful  appearance." 

In  this  country  I  do  not  think  any  decided  and  reported  case  has 
treated  the  immunity  of  such  vessels  as  a  part  or  rule  of  the  law  of 
nations.  Vide  The  Young  Jacob  and  Johanna,  1  C.  Rob.  20,  and  The 
Liesbet  van  den  Toll  (1804)  5  C.  Rob.  283.  But  after  the  lapse  of  a 
century  I  am  of  opinion  that  it  has  become  a  sufficiently  settled  doc- 
trine and  practice  of  the  law  of  nations  that  fishirig  vessels  plying 
their  industry  near  or  about  the  coast  (not  necessarily  in  territorial 
waters),  in  and  by  which  the  hardy  people  who  man  them  gain  their 
livelihood,  are  not  properly  subjects  of  capture  in  war  so  long  as  they 
confine  themselves  to  the  peaceful  work  which  the  industry  properly 
involves. 

The  foundation  of  the  doctrine  is  stated  by  Hall  ^^  as  follows :  "It 
is  indisputable  that  coasting  fishery  is  the  sole  means  of  livelihood  of 
a  very  large  number  of  families  as  inoffensive  as  cultivators  of  the 
soil  or  mechanics,  and  that  the  seizure  of  boats,  while  inflicting  extreme 
hardships  on  their  owners,  is  as  a  measure  of  general  application 
wholly  ineffective  against  the  hostile  state." 

The  rule  is  formulated  by  Westlake  (International  Law,  Part  II, 
War,  p.  133)  in  these  terms: 

"Coast  Fisheries. — Immunity  from  capture  on  the  ground  of  their 
being  enemies  or  enemy  property,  but  not  from  capture  and  condem- 

18  International  Law  (6th  Ed.)  p.  446. 


766  RIGHTS  AND  DUTIES  OP  NATIONS  IN  TIME  OF  WAR         (Part  3 

nation  on  the  ground  of  breach  of  blockade,  is  enjoyed  by  the  men, 
boats,  and  tackle  employed  in  coast  fisheries,  and  their  cargoes  of 
fresh  fish,  including  fish  kept  alive  by  contrivances  on  their  w^ay  to 
market ;  so  long  as  the  men  and  boats  are  not  engaged  in  any  w^arlike 
employment — in  which  scouting,  exchanging  signals  with  the  forces 
on  their  side,  and  carrying  arms  would  be  included — so  long  also  as, 
in  the  opinion  of  the  hostile  government  or  its  naval  commanders  con- 
cerned, they  are  not  likely  to  be  engaged  in  any  warlike  employment." 

And  he  adds:  "If  the  opinion  here  referred  to  is  only  that  of  the 
naval  commanders  concerned,  the  prize  court  before  which  the  cap- 
tures are  brought  will  have  to  release  them  unless  the  warlike  inten- 
tion of  the  captured  is  proved  to  its  satisfaction;  but  if  the  captures 
were  made  in  pursuance  of  a  government  order,  the  prize  court,  in  the 
absence  of  anything  to  the  contrary  in  the  constitution  of  the  country, 
will  be  bound  by  such  an  order  as  emanating  from  the  authority  under 
which  it  sits." 

It  is  obvious  that  in  the  process  of  naval  warfare  in  the  present  day 
such  vessels  may  without  difficulty  and  with  great  secrecy  be  used  in 
various  ways  to  help  the  enemy.  If  they  are,  their  immunity  would 
disappear;  and  it  would  be  open  to  the  naval  authorities  under  the 
crown  to  exclude  from  such  immunity  all  similar  vessels  if  there  was 
reason  for  believing  that  some  of  them  were  utilized  for  aiding  the 
enemy.  And  this  seems  to  be  the  sense  in  which  the  second  paragraph 
of  article  3  of  the  Hague  Convention  referred  to  should  be  regarded. 

As  to  the  Berlin,  I  am  of  opinion  that  she  is  not  within  the  category 
of  coast  fishing  vessels  entitled  to  freedom  from  capture;  on  the 
contrary,  I  hold  that,  by  reason  of  her  size,  equipment,  and  voyage, 
she  was  a  deep-sea  fishing  vessel  engaged  in  a  commercial  enterprise 
which  formed  part  of  the  trade  of  the  enemy  country,  and,  as  such, 
could  be  and 'was  properly  captured  as  prize  of  war. 

I  therefore  decree  the  condemnation  of  the  vessel  and  cargo,  and 
order  the  sale  thereof.^* 

1*  In  The  Maria,  1  British  and  Colonial  Prize  Cas.  259  (1915),  the  court 
limited  the  decision  of  The  Berlin  "to  small  fishing  boats  belonging  to  men 
who  are  earning  their  livelihood  and  supplying  the  food  of  the  small  commu- 
nities on  the  coasts." 

The  Hague  Conventions  VI  1149  and  XI,  article  3,  post,  p.  1157,  imder 
which  immunity  was  claimed,  were  not  ratified,  although  signed,  by  Turkey, 
and  they  were  not  binding  upon  Turkey's  enemy.  The  court  was  therefore 
obliged  to  decide  the  case  according  to  the  customary  law  of  nations. 

It  found  that  the  Maria  was  a  Turkish  vessel  "of  twenty-seven  tons  en- 
gaged in  general  coasting  trade."  It  was  condemned  by  the  court  as  stated 
in  the  headnote  to  the  case,  for  the  reason  that  "there  is  no  customary  rule 
of  international  law,  apart  from  convention,  protecting  from  capture  small 
coasting  vessels  engaged  in  general  local  trade.  The  customary  immunity 
from  capture  applies  only  to  fishing  vessels." 


Ch.  11)  CAPTURE   AT  SBA  767 


THE  PAKLAT. 

(Supreme  Court  of  Hong  Kong,  in  Prize,  1915.    1  British  and  Colonial  Prize 

Cas.  515.) 

Cause  for  condemnation  of  enemy  ship  as  prize.  On  August  21, 
1914,  the  Paklat,  a  German  steamship  of  1,657  tons  belonging  to  the 
Norddeutscher  Lloyd  Linie,  whilst  bound  from  Tsingtau  to  Tientsin 
with  women  and  children  refugees,  was  captured  by  H.  M.  S.  Yar- 
mouth and  brought  to  Hong-Kong  as  prize.  The  blockade  of  Tsingtau 
was  then  imminent,  and  it  was  in  fact  besieged  by  the  Allied  forces 
on  August  27. 

It  was  contended  on  behalf  of  the  owners  that  the  vessel,  which,  it 
was  alleged,  was  going  to  be  interned  at  Tientsin  to  be  used  for  the 
housing  of  destitute  refugees,  was  "employed  on  a  philanthropic  mis- 
sion" within  the  meaning  of  article  4  of  the  Eleventh  Hague  Conven- 
tion, which  exempts  from  capture  "vessels  employed  on  religious,  scien- 
tific, or  philanthropic  missions." 

Re;es-Davie;s,  C.  J.  This  ship  was  taken  and  seized  as  prize  by  H. 
M.  S.  Yarmouth  on  August  21,  1914,  off  the  Shalientau  Island,  and  was 
brought  to  the  port  of  Hong-Kong.  It  is  now  asked  that  she  be  con- 
demned as  prize. 

The  defence,  as  set  up  on  affidavits  of  the  master  of  the  vessel,  al- 
leges that  she  was  requisitioned  by  the  government  at  Tsingtau  on  the 
outbreak  of  the  war  to  carry  women  and  children  to  Tientsin,  as  the 
train  service  was  overcrowded,  and  the  intention  was  to  intern  the  ship 
at  Tientsin  until  the  end  of  the  war,  the  ship  to  be  used  in  the  mean- 
time to  house  such  women  and  children  as  had  insufficient  means  to 
live  on  land.  It  is  also  alleged  that  the  ship  was  specially  fitted  for  this 
purpose. 

The  master  also  states  that  he  had  express  instructions  from  the 
Tsingtau  government  to  fly  the  German  flag  and  the  parliamentary  flag 
(white  truce  flag)  at  the  foremast,  and  to  carry  all  lights  at  night.  It 
is  also  alleged  that  the  ship  was  available  for  any  women  or  children 
of  any  nationality,  other  than  Chinese,  who  might  wish  to  avail  them- 
selves of  her  use,  and  that  no  passage  money  was  demanded  or  paid 
by  the  passengers  in  question. 

Under  these  circumstances  it  is  contended  that  she  was  on  a  "philan- 
thropic mission"  within  the  meaning  of  article  4  of'  the  Eleventh  Hague 
Convention,  1907,  and  is  exempt  from  capture. 

At  the  outset  of  tlie  proceedings  I  expressed  the  strongest  doubt  as 
to  whether  it  could  be  so  regarded,  and  the  crown  has  since  fortified 
me  with  an  extract,  under  the  hand  and  seal  of  the  Assistant  Under- 
Secretary  of  State  for  Foreign  Affairs,  of  the  official  report  of  the 
Committee  of  the  Deuxieme  Conference  Internationale  de  la  Paix,  La 
Haye,  1907  (Actes  et  Documents),  which,  I  think,  leaves  no  reasona- 
ble doubt  as  to  the  construction  to  be  placed  on  the  article  in  question. 
It  reads  (inter  alia) :    "It  is  obvious  that  such  a  favour  can  only  be 


768  RIGHTS  AND  DUTIES  OF   NATIONS  IN  TIME  OF   WAR         (Part  3 

granted  under  the  condition  that  there  is  no  intermeddling  (immiscer) 
in  the  war  operation.  In  order  to  avoid  all  difficulties  the  Power  whose 
ship  in  question  bears  the  colours  must  refrain  from  involving  her  in 
any  war  service."  The  favour  granted  to  the  said  ship  bestows  upon 
her  a  sort  of  neutralization  which  must  last  until  the  end  of  (all)  hos- 
tilities, and  which  must  prevent  her  from  having  her  destination  al- 
tered." 

Now,  as  to  the  construction  which  has  to  be  placed  on  the  foregoing 
language,  I  entirely  agree  with  the  Attorney  General's  rendering,  and 
will  adopt  the  words  which  he  used  in  argument.  The  word  "neu- 
tralization" here  means  that  the  ship  is  placed  entirely  outside  the  pale 
of  any  warlike  operations,  and  must  in  consequence  keep  herself  en- 
tirely apart  from  any  service  in  connection  with  the  war  or  that  may 
have  any  effect  on  the  war. 

It  was  contended  on  behalf  of  the  owners  that  the  intention  to  in- 
tern the  refugees  at  Tientsin  was  a  philanthropic  mission,  and  the 
recent  decision  of  Mr.  Justice  Gompertz  in  The  Hanametal,  1  B.  8:  C. 
P.  C.  347  (1914),  a  neutral  vessel,  was  relied  upon;  that  the  carrying 
of  refugees  was  not  intermeddling  with  warlike  operations,  and  so  was 
not  a  breach  of  neutrality  law.  I  think  that  there  is  no  real  analogy 
between  the  reasoning  adopted  in  that  case  and  the  present.  There  is 
a  fundamental  difference,  as  the  Attorney  General  contends,  between 
the  "Neutralization"  of  an  enemy  ship  within  the  meaning  of  the  offi- 
cial report  on  the  Convention  and  the  neutrality  of  a  non-belligerent 
ship.  There  are  many  things  which  the  latter  may  be  able  to  do  which 
in  some  measure  may  affect  the  war  without  rendering  herself  liable 
for  a  breach  of  neutrality,  and  in  such  case  it  must  be  demonstrated 
to  the  court  by  the  captor  that  some  unneutral  service  has  been  per- 
formed. This  onus,  I  understand,  is  what  the  Crown  failed  to  dis- 
charge in  the  case  of  The  Hanametal,  1  B.  &  C,  P.  C.  347  (1914). 

The  fact  that  a  neutral  ship  may  carry  refugees  without  being  liable 
to  capture  does  not  imply  the  same  power  in  an  enemy  ship,  although 
given  une  sorte  de  neutralisation  for  the  purpose  of  the  "philanthropic 
mission"  in  question.  To  construe  "philanthropic  mission"  as  sug- 
gested might  lead  to  serious  consequences  which  clearly  could  not  have 
been  contemplated  by  the  article,  and  it  ir.ight  enable  an  enemy  vessel 
to  escape  to  a  neutral  port  under  any  similar  professed  act  of  philan- 
thropy. If  it  were  intended  to  cover  such  an  act  as  the  conveyance 
of  non-combatants  under  such  conditions  to  a  neutral  port,  the  Con- 
vention would  not  have  left  it  in  such  vague  and  indefinite  language; 
and  some  such  system  as  safe  conducts  furnished  in  advance  would 
presumably  have  been  contemplated,  as,  I  understand,  has  often  been 
the  custom  in  the  case  of  expeditions  dispatched  for  the  piirposes  of 
science  or  religion,  and  in  the  case  of  cartel  ships. 

I  may  add  that,  assuming  the  blockade  had  existed  at  Tsingtau 
(which,  I  understand,  in  fact  did  not  exist  until  August  27),  no  rule  of 
law  exists  which  obliges  a  besieging  force  to  allow  all  non-combatants, 


Ch.  11)  ,  CAPTURE    AT    SEA     "  709 

or  only  women,  chidren,  the  aged,  the  sick  and  wounded,  or  subjects 
of  neutral  powers,  to  leave  the  besieged  locality  unmolested.  Although 
such  permission  is  sometimes  granted,  it  is  in  most  cases  refused,  be- 
cause the  fact  that  non-combatants  are  besieged  together  with  com- 
batants, and  that  they  have  to  endure  the  same  hardships,  may,  and  very 
often  does,  exercise  pressure  upon  the  authorities  to  surrender.  See 
Oppenheim's  International  Law,  vol.  2,  p.  193.  This  being  the  case, 
if  the  Convention  ever  contemplated  such  a  "philanthropic  mission," 
which  in  the  case  of  a  blockaded  port  would  come  directly  in  conflict 
with  the  custom  I  have  stated,  it  would  have  provided  for  it  in  ex- 
press and  unequivocal  language. 

The  decision  I  give  is  that  the  vessel  was  properly  seized  as  a  prize 
of  war,  and  that  she  is  subject  to  condemnation.  There  will  be  a  decree 
of  condemnation,  the  crown  to  receive  such  costs  as  have  been  occa- 
sioned by  the  claim.*^ 


THE  AMELIA. 

(United   States  District  Court.   E.   D.   Pennsylvania,  1861.     1   Cadwalader's 

Cases,  541  [1907].) 

Claim  of  Mitchell  King,  of  Charleston,  South  Carolina,  for  two  cases 
of  books  marked  "The  University  of  North  Carolina,  Chapel  Hill, 
North  Carolina,  care  of  Mitchell  King,  Esq.,  Charleston,  South  Caro- 
lina, Nos.  1  and  2,"  received  and  filed  on  the  14th  instant,  with  the 
written  consent  of  the  district  attorney  of  the  United  States.  And  the 
affidavit  of  John  Penington,  taken  on  the  16th  instant,  and  this  day 
filed,  being  read  by  consent,  and  the  letter  of  the  said  claimant  therein 
mentioned  being  put  in  evidence,  and  it  appearing  to  the  court  that 

18  In  tlie  case  of  Comte  de  Smet  de  Naeyer  (1916)  Eutscheidungen  des 
Oberprisengerichts  in  Berlin  [19181,  209,  a  training  ship  was  held  not  to  be 
exempt  from  capture  for  the  reason  stated  in  the  following  decision  of  the 
court: 

"Nor  can  it  finally  be  admitted  that,  as  assumed  by  the  lower  instance, 
school  ships  belong  to  those  ships  that,  according  to  article  4  of  the  Eleventh 
Convention  of  the  Second  Hague  Conference  are  entrusted  with  scientific 
missions.  As  to  whether  this  article  4,  according  to  its  purport,  is  to  be  inter- 
preted rather  in  a  wide  than  in  a  restricted  sense,  as  the  judge  of  first  instance 
believes,  need  not  here  be  discussed,  because  its  text  is  clear  and  requires  no 
special  interpretation.  It  is  evident  that  a  school  ship  is  not  intended  for 
scientific  pui-poses.  To  be  sure,  for  the  thorough  training  of  a  ship  otficer  and 
ship  captain,  a  certain  scientific  basis  is  necessary,  and  it  can  not  be  gainsaid 
that  at  naval  schools,  instruction  is  imparted  in  scientific  subjects,  mathema- 
tics, astronomy.  It  may  even  be  admitted  that  not  research  alone,  but  that 
also  Instruction  is  the  object  ofi  science.  But  the  latter  only  in  so  far  as 
science  as  such  is  taught  as  a  distinct  and  definite  science  as  a  whole,  in  all 
its  branches,  and  in  so  far  as  it  is  of  value  for  the  preparation  of  scholars  or  as 
a  preliminary  study  for  one  or  the  other  of  the  learned  professions.  Seaman- 
ship is  not  a  scholarly,  but  a  practical  profession.  The  naval  school  is  not 
a  school  for  the  sciences,  but  a  professional  school.  It  can  no  more  be  said  of 
such  a  school  than  of  a  mining  school  in  which  also  a  theoretical  and,  there- 
fore, scientific  basis  is  laid,  that  it  concerns  itself  with  scientific  problems." 
Scott  Int.Law — 49 


770  BIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  SyAR         (Part  3 

Other  parts  of  the  said  letter  than  are  extracted  in  the  said  affidavit 
should  be  considered  in  forming  an  opinion  as  to  the  sufficiency  of 
the  authority  conferred  upon  Mr.  Penington  to  receive  the  said  two 
cases  of  books,  the  said  letter  is  filed  of  record.  And  the  said  claim 
having  been  considered  upon  the  above  mentioned  papers,  and  upon  the 
documents  on  board  of^e  captured  vessel. 

I  Cadwalade;r,  ].^°  (Though  this  claimant,  as  the  resident  of  a  hos- 
tile district,  v^ould  not^be  entitled  to  restitution  of  the  subject  of  a 
commercial  adventure  in  books,  the  purpose  of  the  shipment  in  ques- 
tion gives  to  it  a  different  character.  The  United  States,  in  prosecut- 
ing hostilities  for  the  restoration  of  their  constitutional  authority, 
are  compelled  incidentally  to  confiscate  property  captured  at  sea,  of 
which  the  proceeds  would  otherwise  increase  the  wealth  of  that  dis- 
trict. But  the  United  States  are  not  at  war  with  literature  in  that  part 
of  their  territory./  The  case  of  the  pictures  of  the  Philadelphia  Acad- 
emy of  Fine  Ans,  liberated  by  a  British  Colonial  Prize  Court  in  the 
war  of  1812,  the  prior  proceeding  in  France  mentioned  in  the  report 
of  that  case,  and  the  French  and  other  decisions  upon  cases  of  fishing 
vessels,  are  precedents  for  the  decree  which  I  am  about  to  pronounce. 
Without  any  such  precedents,  I  would  have  had  no  difficulty  in  liberat- 
ing these  books. 

Whereupon  it  is  ordered,  adjudged  and  decreed  that  the  said  two 
cases  of  books  be  liberated  from  the  custody  of  the  marshal  and  de- 
livered to  the  said  John  Penington.     *     *     *  " 


THE  OREL. 

(Sasebo  Prize  Court,  1905.    2  Hurst  &  Bray's  Riussian  and  Japanese  Prize 

Cas.  354  [1913].) 

The  hospital  ship  Orel  is  condemned. 

Facts  and  Reasons. 

The  Orel,  the  hospital  ship  in  this  case,  is  a  steamer  belonging  to 

the  Russian  volunteer  fleet,  and  was  formerly  engaged  in  the  carriage 

of  passengers  and  cargo  under  the  Russian  merchant  flag,  with  Odessa 

as  her  usual  home  port.     After  the  outbreak  of  the  Russo-Japanese 

i«  Part  of  the  opinion  is  omitted. 

^7  In  The  Paquete  Habana,  175  U.  S.,  677,  709,  20  Sup.  Ct.  290,  44  L.  Ed. 
820  (1900),  Mr.  Justice  Gray,  delivering  the  opinion  of  the  court,  referred  to 
The  Marquis  de  Somerueles,  and  The  Amelia,  supra,  as  authority  for  the  fol- 
lowing statement: 

"By  the  practice  of  all  civilized  nations,  vessels  employed  only  for  the  pur- 
poses of  discovery  or  science  are  considered  as  exempt  from  the  contingencies 
of  vpar,  and  therefore  not  subject  to  capture.  It  has  been  usual  for  the  gov- 
ernment sending  out  such  an  expedition  to  give  notice  to  other  povrers;  but 
it  is  not  essential.  1  Kent,  Com.  91,  note;  Halleck,  c.  20,  §  22 ;  Oalvo,  §  2376 ; 
Hall,  §  138." 


Ch.  11)  CAPTURE   AT   SEA  771 

war,  she  was  chartered  by  the  Russian  Red  Cross  Society,  for  use  as 
a  hospital  ship,  on  May  29,  1904.  The  Russian  government  request- 
ed the  Japanese  government  through  the  French  Minister  in  Japan 
that  the  exemptions  stipulated  in  articles  1  to  5  of  the  Hague  Con- 
vention No.  3,  of  July  29,  1899,  for  the  adaption  to  maritime  war- 
fare of  the  principles  of  the  Geneva  Convention  of  August  22,  1864, 
should  be  allowed  to  the  Orel.  As  the  above  request  was  agreed  to 
by  the  Japanese  government,  she  was  equipped  as  a  hospital  ship  at 
Toulon,  and  having  obtained  the  certificate  of  the  chief  naval  expert, 
the  superintendent  of  the  Forges  et  Chantiers  at  La  Seyne,  France, 
and  the  commission  of  the  Russian  government,  she  was  attached  to 
the  Second  Russian  Pacific  Squadron  and  joined  it  at  Tangier,  in 
French  territory  in  Africa.  In  the  course  of  her  eastward  voyage  with 
the  squadron,  she  followed  and  overtook  the  Malaya,  a  steamer  at- 
tached to  the  fleet,  on  November  21,  1904,  by  order  of  the  comman- 
der-in-chief, and  communicated  to  her  an  order  that  she  should  keep 
within  signal  distance.  On  May  21,  1905,  she  received  on  board,  by 
order  of  the  commander-in-chief,  Alex.  Stewart,  master  of  the  British 
steamship  Oldhamia,^*  which  had  been  captured  by  the  Oleg,  a  war- 
ship belonging  to  the .  squadron,  and  three  others,  with  the  object  of 
carrying  them  to  Vladivostock,  although  they  were  in  good  health. 
She  was  also  instructed  at  Capetown  or  in  its  neighbourhood  by  a  staff 
officer  of  the  squadron  to  purchase  10,000  feet  of  conducting  wire  (2 
millimetres  in  diameter)  and  1,000  feet  of  conducting  wire  (1  milli- 
metre in  diameter),  both  well  insulated.  Moreover,  when  the  Russian 
second  and  third  Squadrons  were  proceeding  towards  the  Straits  of 
Tsushima  in  two  or  three  columns,  the  Orel  and  the  other  hospital  ship, 
the  Kostroma,  took  up  positions  on  either  side  of  the  leading  warships 
of  the  squadrons,  forming  a  triangle  with  the  foremost  men-of-war. 
She  was  ordered  to  stop  by  the  Japanese  man-of-Avar  Sado  Maru  when 
10  nautical  miles  west  of  Okino  Shima,  at  3  :30  p.  m.  on  May  27, 
1905,  while  the  battle  was  going  on  between  the  Russian  squadrons 
and  the  Japanese  fleet  near  Okino  Shima,  and  was  taken  to  Miura 
Bay,  in  the  province  of  Tsushima,  where  she  was  captured  as  having 
taken  part  in  military  operations.  *  *  * 
.The  conclusion  of  the  court  is  as  follows : 
I  A  hospital  ship  is  only  exempt  from  capture  if  she  fulfils  certain 
/conditions  and  is  engaged  solely  in  the  humane  work  of  aiding  the 
j  sick  and  wounded.  That  she  is  liable  to  capture,  should  she  be  used 
Vby  the  enemy  for  military  purposes,  is  admitted  by  international  law, 
^nd  is  clearly  laid  down  by  the  stipulations  of  the  Hague  Convention 
jNo.  3  of  July  29,  1899,  for  the  adaptation  to  maritime  warfare  of  the 
'principles  of  the  Geneva  Convention  of  August  22,  1864.*®  Although 
the  Orel  had  been  lawfully  equipped  and  due  notification  concerning 

18  See  volume  1,  Russian  Cases,  p.  145. 

19  Blue  Book  (Misc.)  No.  1,  1899,  p.  349. 


772  RIGHTS   AND   DUTIES   OP   NATIONS   IN   TIME   OF   WAR         (Part  3 

her  had  been  given  by  the  Russian  government  to  the  Japanese  gov- 
ernment, yet  her  action  in  communicating  the  orders  of  the  comman- 
der-in-chief of  the  Russian  second  Pacific  squadron  to  other  vessels 
during  her  eastward  voyage  with  the  squadron,  and  her  attempt  to 
carry  persons  in  good  heaUh,  i.  e.,  the  master  and  three  other  mem- 
bers of  the  crew  of  a  British  steamship  captured  by  the  Russian  fleet, 
to  Vladivostock,  which  is  a  naval  port  in  enemy  territory,  were  evi- 
dently acts  in  aid  of  the  military  operations  of  the  enemy.  Further, 
when  the  facts  that  she  was  instructed  by  the  Russian  squadron  to 
purchase  munitions  of  war,  and  that  she  occupied  the  position  usually 
assigned  to  a  ship  engaged  in  reconnaissance,  are  taken  in  considera- 
tion, it  is  reasonable  to  assume  that  she  was  constantly  employed  for 
military  purposes  on  behalf  of  the  Russian  squadron.  She  is,  there- 
fore, not  entitled  to  the  exemptions  laid  down  in  the  Hague  Conven- 
tion for  the  adaptation  to  maritime  warfare  of  the  principles  of  the 
Geneva  Convention,-^  and  may  be  condemned  according  to  Interna- 
tional Law.    *    *    *  21 


THE  SANTA  CRUZ. 
(High  Court  of  Admiralty,  1798.    1  C.  Rob.  50.) 

This  was  a  case  of  a  Portuguese  vessel  taken  by  the,  French,  1st  of 
August,  1796,  and  retaken  by  English  cruisers,  on  the  28th,  after  being 
a  month  in  the  possession  of  the  enemy.     *     *     * 

Sir  W.  ScoTT.^^  *  *  *  jj^  ^YiQ  arguments  of  the  counsel,  I  have 
heard  much  of  the  rules  which  the  law  of  nations  prescribes  on  recap- 
ture, respecting  the  time  when  property  vests  in  the  captor ;  and  it  cer- 
tainly is  a  question  of  much  curiosity,  to  inquire  what  is  the  true  rule 
on  this  subject;  when  I  say,  the  true  rule,  I  mean  only  the  rule  to 
which  civilized  nations,  attending  to  just  principles,  ought  to  adhere;  ^^ 
for  the  moment  you  admit,  as  admitted  it  must  be,  that  the  practice  of 
nations  is  various,  you  admit  there  is  no  rule  operating  with  the  proper 
force  and  authority  of  a  general  law. 

It  may  be  fit  there  should  be  some  rule,  and  it  might  be  either  the 
rule  of  immediate  possession,  or  the  rule  of  pemoctation  and  twenty- 
four  hour  possession ;  or  it  might  be  the  rule  of  bringing  infra  prsesidia ; 

«o  Blue  Book  (Misc.)  No.  1,  1899,  p.  349. 

21  la  The  Ophelia,  t.  R.  [1916]  2  A.  C.  206,  231  (1916),  Sir  Arthur  Channell, 
delivering  the  opinion  of  the  Privy  Council,  said: 

"Tliey  [their  Lordships]  are  of  opinion  that  the  President  was  fully  justified 
In  finding  that  the  Ophelia  was  not  constructed  or  adapted  or  used  for  the 
special  and  sole  purpose  of  affording  aid  and  relief  to  the  wounded,  sick,  and 
shipwrecked,  and  that  she  was  adapted  and  used  as  a  signalling  ship  for 
military  purposes.  Their  Lordships  agree  in  that  finding,  which  of  course 
justifies  the  condemnation  of  the  vessel  as  lawful  prize.  They  will  humbly 
advise  His  Majesty  that  the  appeal  should  be  dismissed  with  costs." 

2  2  Part  of  statement  and  parts  of  opinion  are  omitted. 

2S  The  Flad  Oyen,  1  C.  Rob.  135,  139  (1799). 


Ch.  11)  CAPTURE   AT   SEA  773 

or  it  might  be  a  rule  requiring  an  actual  sentence  of  condemnation. 
Either  of  these  rules  might  be  sufficient  for  general  practical  conven- 
ience, although  in  theory,  perhaps,  one  might  appear  more  just  than 
another;  but  the  fact  is,  there  is  no  such  rule  of  practice;  nations 
concur  in  principle  indeed,  so  far  as  require  firm  and  secure  possession ; 
but  their  rules  of  evidence  respecting  the  possession  are  so  discordant, 
and  lead  to  such  opposite  conclusions,  that  the  mere  unity  of  principle 
forms  no  uniform  rule  to  regulate  the  general  practice.  But  were  the 
public  opinion  of  European  States  more  distinctly  agreed,  on  any  prin- 
ciple, as  fit  to  form  the  rule  of  the  law  of  nations  on  this  subject,  it  by 
no  means  follows  that  any  one  nation  would  lie  under  an  obligation 
to  observe  it. 

That  obligation  could  arise  only  from  a  reciprocity  of  practice  in 
other  nations;  for  from  the  very  circumstance  of  the  prevalence  of  a 
different  rule  among  oth'er  nations,  it  would  become  not  only  lawful, 
but  necessary,  to  that  one  nation  to  pursue  a  different  conduct ;  for 
instance,  were  there  a  rule  prevailing  among  other  nations,  that  the 
immediate  possession,  and  the  very  act  of  capture,  should  divest  the 
property  from  the  first  owner,  it  would  be  absurd  in  Great  Britain  to 
act  towards  them  on  a  more  extended  principle;  and  to  lay  it  down 
as  a  general  rule,  that  a  bringing  infra  prsesidia,  though  probably  the 
true  rule,  should  in  all  cases  of  recapture  be  deemed  necessary  to  divest 
the  original  proprietor  of  his  right;  for  the  effect  of  adhering  to  such 
a  rule  would  be  gross  injustice  to  British  subjects.     *     *     * 

If  I  am  asked,  under  the  known  diversity  of  practice  on  this  sub 
ject,  what  is  th.e4)roper  rule  for  a  state  to  apply  to  the  recaptured  prop 
erty  of  its  allies?    I  should  answer,  that  the  liberal  and  rational  pro- 
ce_eding^  would. he, , to  apply  in  the  first  instance  the  rule  of  that  country 
to  which  the  recaptured  property  belongs.     *     *     *     jf  there  should 
exist  a  country  in  which  no  rule  prevails,  the  recapturing  country  must 
then  of  necessity  apply  its  own  rule,  and  rest  on  the  presumption,  that 
that  rule  will  be  adopted  and  administered  in  the  future  practice  of 
its  allies.     *     *     *     j  understand  it  to  be  clearly  this :  That  the  mari- 
time law  of  England,  having  adopted  a  most  liberal  rule  of  restitution 
on  salvage,  with  respect  to  the  recaptured  property  of  its  own  subjects, 
gives  the  benefit  of  that  rule  to  its  allies,  till  it  appears  that'  they  act 
towards  British  property  on  a  less  liberal  principle.     In  such  a  case 
it  adopts  their  rule,  and  treats  them  according  to  their  own  measure  of 
justice.     *     ♦     * 


774  EIGHTS  AND   DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

THE  CARLOTTA. 

(High  Court  of  Admiralty,  1803.    5  C.  Rob.  54.) 

This  was  a  question  of  salvage,  on  the  recapture  of  a  Spanish  ship 
and  cargo  from  a  French  cruiser.  It  appeared  that  the  vessel  was 
originally  destined  on  a  voyage  from  Montevideo  to  London,  with 
some  property  on  board  belonging  to  British  merchants;  that  in  the 
course  of  this  voyage,  she  had  been  seized  by  a  British  cruiser,  who 
was  bringing  her  to  the  port  of  London,  when  she  was  met  and  cap- 
tured by  a  French  privateer,  and  was  afterwards  recaptured,  and 
brought  to  Jersey.     *     *     * 

Sir  W,  Scott.  The  question  now  to  be  decided  is,  whether  salvage 
is  due  on  the  neutral  property  in  this  ship,  which  has  been  recap- 
tured out  of  "the  possession  of  the  enemy.  It  certainly  has  not  been 
the  practice  of  this  court  to  decree  salvage  under  such  circumstances 
generally ;  but,  in  consequence  of  the  violent  conduct  of  France  dur- 
ing the  last  war,  it  was  thought  not  unreasonable  on  the  part  of  neu- 
tral merchants  themselves,  that  salvage  should  be  allowed.  The  con- 
duct of  the  French  nation,  in  the  course  of  their  warfare  on  land,  dur- 
ing the  present  war,  has  unquestionably  been  as  rapacious,  and  as  lit- 
tle restrained  by  any  regard  to  the  rights  of  neutral  nations,  as  it 
could  possibly  have  been  during  any  part  of  the  last  war.  What  the 
proceedings  of  the  maritime  courts  of  that  country  have  been  durmg 
the  present  war,  I  am  not  correctly  informed;  from  the  little  which 
I  have  been  able  to  collect,  I  am  rather  induced  to  believe,  that  they 
have  been  conducted  with  more  regularity,  and  with  a  disposition  more 
inclined  to  return  to  the  established  principles  of  justice,  on  which 
the  prize  system  of  ancient  France,  in  common  with  that  of  the  other 
maritime  countries  of  Europe,  was  built. 

I  am,  therefore,  not  disposed  to  hold  generally  that  neutral  prop- 
erty recaptured  from  French  cruisers  shall  be  subject  to  salvage.  The 
rule,  so  far  as  it  can  be  considered  a  general  rule,  is  rather  to  be  laid 
down  the  other  way.  At  the  same  time,  if  any  edict  can  be  appealed 
to  or  any  fact  established,  by  which  it  can  be  shown  that  the  property 
would  have  been  exposed  to  condemnation  in  the  courts  of  France,  I 
shall  hold  that  to  be  sufficient  ground  to  induce  me  to  pronounce  for 
salvage  in  that  particular  case.  With  regard  to  the  precedent  of  the 
Jonge  Lambert,  5  C.  Rob.  55,  note,  I  think  I  am  warranted  to  consider 
the  authority  of  that  case  as  in  a  great  measure  done  away  by  the  sub- 
sequent decision  of  the  Lords  in  the  late  war,  in  which  they  have  re- 
peatedly pronounced  for  salvage  on  the  recapture  of  neutral  property. 
In  departing  from  the  old  rule  they  have  in  some  degree  disclaimed 
the  principle ;  and,  I  think,  with  great  propriety,  as  far  as  it  could  be 
considered  as  an  universal  principle,  governing  the  practice  of  our 
prize  courts  in  all  possible  cases,  without  any  possible  exception.  In 
the  present  instance  there  does  not  appear  to  me  to  be  any  grounds  on 


Ch.  11)  CAPTURE  AT  SEA  775 

which  it  can  be  supposed  that  this  property  would  have  been  condemn- 
ed, merely  because  it  came  out  of  the  hands  of  a  British  privateer,  or 
because  the  original  voyage  had  been  from  the  colony  of  Spain  to 
London.  No  edict  has  been  produced  from  the  French  Code  to  show 
that  this  property  would  have  been  subject  to  any  such  penalty  on  ei-. 
ther  of  those  accounts,  in  the  prize  courts  of  France.  The  expenses 
of  the  recaptors  must  be  fully  paid ;  but  I  shall  not  pronounce  salvage 
to  be  due.^^ 


THE  MARY  FORD. 

(Supreme  Court  of  the  United  States,  1796.     3  Dall.  188,  1  L.  Ed.  563,  Fed 

Cas.  No.  9,212a.) 

The  Mary  Ford  was  a  British  vessel,  captured  in  1790  by  a  French 
squadron  and  abandoned  at  sea.  The  George,  an  American  vessel, 
took  possession  of  the  Mary  Ford,  and  brought  it  into  Boston  harbor, 
to  save  the  ship  and  cargo,  and  then  libelled  it  for  salvage  in  the  Dis- 
trict Court.  From  a  judgment  in  favor  of  the  libellants,  an  appeal 
was  taken  to  the  Supreme  Court.^* 

By  the  Court.  We  are  unanimously  of  opinion,  that  the  District 
Court  had  jurisdiction  upon  the  subject  of  salvage;  and  that,  conse- 
quently, they  must  have  a  power  of  determining  to  whom  the  residue 
of  the  property  ought  to  be  delivered. 

In  determining  the  question  of  property,  we  think  that,  immediately 
on  the  capture,  the  captors  acquired  such  a  right,  as  no  neutral  na- 
tion could  justly  impugn  or  destroy;  and,  consequently,  we  cannot  say 
that  the  abandonment  of  the  Mary  Ford,  under  the  circumstances  of 
this  case,  revived  and  restored  the  interest  of  the  original  British  pro- 
prietors. 

Some  doubts  have  been  entertained  by  the  court,  whether  on  the 
principles  of  an  abandonment  by  the  French  possessors,  the  whole 

28  See  the  recent  case  of  The  Pontoporos,  2  British  and  Colonial  Prize  Cas., 
87  (1916),  in  which  Sir  Samuel  Evans  stated,  according  to  the  headnote,  that : 

"The  general  practice  not  to  decree  salvage  for  the  recapture  of  neutral 
ships  is  subject  to  exceptions.  The  presumption  that  a  neutral  ship  captured 
by  a  belligerent  incurs  no  peril  is  displaced  where  the  state  to  which  the  origi- 
nal captor  belongs  has  sullied  its  character  by  gross  violations  of  the  law  of 
nations  or  has  promulgated  decrees  of  condemnation,  however  unjust,  on 
which  the  tribunals  of  the  country  are  enjoined  to  act,  and  of  which  there  is 
every  reason  to  suppose  that  they  will  be  carried  into  execution.  The  reason- 
ing on  which  the  general  rule  has  been  founded  is  then  done  away  with,  the 
peril  is  obvious,  the  case  becomes  simply  that  of  meritorious  rescue  from  the 
danger  of  condemnation  or  destruction,  and  salvage  will  be  awarded." 

For  an  account  of  the  laws  of  the  different  countries  on  the  subject  of  re- 
capture and  salvage,  see  Dana's  edition  of  Wheaton's  Elements  of  Interna- 
tional L"w,  p.  466  et  seq.  (1866).  See  also  United  States  Rev.  St.  §  4652  (U.  S. 
Comp.  St.  §  8426),  and  the  English  Prize  Act  of  27  &  28  Vict.  c.  25,  §  40. 

20  A  shortened  statement  has  been  substituted  for  that  of  the  original  re- 
port. 


776  RIGHTS  AND   DUTIES  OF   NATIONS   IN  TIME   OF  WAR         (Part  3 

property  ought  not  to  have  been  decreed  to  the  American  libellants,  or, 
at  least,  a  greater  portion  of  it  by  way  of  salvage ;   but  as  they  have 
not  appealed  from  the  decision  of  the  inferior  court,  we  cannot  now 
take  notice  of  their  interest  in  the  cause. 
•     Upon  the  whole,  let  the  decree  be  affirmed.^' 

27  In  Hopner  v.  Appleby,  5  Mason,  71,  75,  Fed.  Cas.  No.  6,699  (1828),  Mr. 
Justice  Story  said: 

"The  possession  of  the  captors  is  to  be  deemed  a  possession  bonse  fidei  and 
Inviolable ;  and  as  was  said  by  the  Supreme  Court  in  the  case  of  The  Mary 
Ford,  3  Dall.  188,  198,  1  L.  Ed.  563,  Fed.  Cas.  No.  9,212a,  immediately  upon  the 
capture  the  captors  -acquire  such  a  right  as  no  neutral  nation  can  justly  im- 
pugn or  destroy.    The  Josefa  Segunda,  5  Wheat.  338,  357,  5  I..  Ed.  104  (1820)." 

And  in  Booth  v.  L'Esiperanza,  Bee,  93,  3  Fed.  Cas.  885  (1798),  Bee,  J., 
held,  citing  Tlie  Mary  Ford,  supra,  that  a  vessel  in  distress,  met  with  at  sea, 
and  brought  into  the  port  of  a  neutral  power,  must  be  restored,  after  payment 
of  salvage  to  those  who  were  in  possession  of  her  when  she  was  met. 

And  in  L'luvincible,  1  Wheat.  238,  258,  4  L.  Ed.  80  (1816),  Mr.  Justice  John- 
son cites  and  explains  the  case  in  the  text,  holding  that  the  courts  of  this 
country  have  no  jurisdiction  to  redress  any  supposed  torts  committed  on  the 
high  seas  upon  the  property  of  its  citizens  by  a  cruiser  regularly  commission- 
ed by  a  foreign  and  friendly  power,  except  where  such  cruiser  has  been 
fitted  out  in  violation  of  our  neutrality. 

In  1799,  the  American  brig  Experience  was  taken  with  two  other  vessels, 
by  a  British  cruiser,  recovered  by  its  crew,  and  brought  to  Philadelphia.  The 
British  Government  demanded  her  restored,  in  reply  to  which,  on  May  3,  1800, 
Secretary  of  State  Pickering  referred  the  British  Minister  to  the  .A^dmiralty 
Courts  of  the  United  States.  This  was  when  Great  Britain  was  at  war,  and 
the  United  States  neutral.  Diplomatic  Correspondence  of  the  United  States, 
149  (1S62);  Lawrence's  edition  of  Wheaton's  Elements  of  International  Law, 
666,  note  (1863)  ;    4  Moore's  International  Law  Digest,  416  (1906) ;    7  Id.  501. 

During  the  Civil  War,  the  situation  was  reversed.  The  United  States  being 
at  war  with  the  Southern  States,  and  Great  Britain  neutral,  the  Emily  St. 
Pierre,  a  British  vessel,  was  captured,  in  1862,  by  the  United  States  blockad- 
ing squadron,  in  the  act  of  breaking  the  blockade  of  Charleston,  South  Caro- 
lina. It  was  ordered  to  Philadelphia  for  adjudication,  in  charge  of  a  prize 
crew.  The  original  crew  regaining  possession,  it  is  said,  by  fraud  and  foi-ce, 
took  the  vessel  to  Liverpool  and  restored  it  to  its  owners.  Mr.  Charles  Francis 
Adams,  the  American  Minister,  demanded  its  return.  It  was  not  returned. 
Lawrence's  Wheaton,  667,  note ;  1  Moore's  Treatise  on  Extradition  and  Inter- 
state Rendition,  596  (1891). 

The  Lone  entered  the  port  of  Matamoras,  blockaded  by  a  French  squadron 
in  1838,  and,  leaving  Matamoras,  sailed  for  New  Orleans.  On  the  voyage 
thither,  she  was  taken  by  a  French  cruiser,  but  some  days  thereafter  was 
rescued  by  her  captain  and  brought  into  New  Orleans.  Upon  a  demand  made 
by  the  French  government  to  the  President  for  the  return  of  the  Lone  to  the 
French  captors.  Attorney  General  Gitmdy  advised  the  President  that  he  had 
no  power  to  grant  the  demand ;  that  the  question  was  a  judicial  one,  to  be 
settled  by  the  courts,  not  by  the  Executive,  and  that  the  claimants  should 
resort  to  the  courts,  and  there  prosecute  their  claims.  The  Attorney  General 
also  advised  the  President  that  the  liability  for  condemnation  entirely  ceases 
when  the  vessel  has  terminated  its  voyage  in  safety.  3  Opinions  of  the  Attor- 
neys General,  377;   4  Moore's  International  Law  Digest,  416. 


Ch.  11)  CAPTURE  AT   SEA  "  777 


THE  BRUSSELS. 

(Prize  Court  of  Belgium,   1919.     Moniteur  Beige,  November  6,  1919,  5894; 
Translation   16  American  Journal  of  International   Law    [1922]    127.) 

In  case  No.  46,  S.  S.  Brussels,  the  Council  renders  the  following 
decision: 

In  view  of  the  introductory  petition  presented  by  the  Commissioner 
of  the  Government  requesting  that  the  capture  of  the  steamer  Brussels, 
of  about  1380  tons,  formerly  belonging  to  the  Great  Eastern  Railway 
Company,  whose  offices  are  at  Harwich,  be  declared  effective  and  valid 
for  the  benefit  of  the  Belgian  state; 

In  view  of  the  other  documents  incorporated  into  the  pleadings ; 

Having  heard  the  Commissioner  of  the  Government  Van  Ginder- 
taelen  in  his  reasons  and  motions : 

Whereas,  the  steamer  Brussels,  flying  the  English  flag  and  com- 
manded by  the  late  Captain  Fryatt,  was  captured  on  the  high  seas  by 
the  German  naval  forces  and  taken  to  Zeebrugge ; 

Whereas,  it  was  declared  a  legal  prize  by  the  decision  of  the  Prize 
Court  of  Hamburg  on  November  15,  1916,  confirmed  by  the  Superior 
Prize  Court  at  Berlin  on  July  29,  1917; 

Whereas,  it  follows  therefrom  that  the  ship  had  become  German 
property  and  that,  according  to  the  principles  of  the  law  of  nations,  it 
was  subject  to  seizure  when,  in  the  month  of  October,  1918,  the  vic- 
torious Belgian  troops  captured  it  in  the  port  of  Zeebrugge,  where  it 
was  sunk  by  the  enemy ; 

Whereas,  no  objection  could  be  made  that,  forming  the  subject  of  the 
recapture  of  an  allied  ship,  this  ship  should,  according  to  international 
customs,  have  been  restored  to  its  former  owner ; 

Whereas,  in  the  first  place,  there  does  not  exist  any  general  usage, 
and  even  to  a  less  degree  any  written  international  rule,  binding  the 
recaptor  to  restitution  in  such  a  case ; 

Whereas,  the  Hague  Convention  is  silent  on  this  subject; 

Whereas,  as  the  judgments  of  this  court,  dated  October  17,  1919,  in 
the  case  of  the  S.  S.  Midsland  and  Gelderland,  declared,  England  her- 
self has  never  admitted  the  restitution  of  an  allied  or  neutral  ship 
recovered  from  the  enemy,  except  under  the  condition  of  reciprocity ; 

Whereas,  in  fact,  no  treaty  of  reciprocity  exists  on  this  subject  be- 
tween Great  Britain  and  Belgium ; 

But,  whereas,  moreover,  as  appears  from  the  same  decisions,  the 
recapture  or  recovery,  with  the  rights  and  obligations  which  certain 
publicists  of  international  law  attach  thereto,  is  possible  only  if  no 
judgment  validating  the  original  prize  has  been  rendered; 

Whereas,  in  case  of  the  existence  of  such  a  judgment,  we  are  deal- 
ing with  a  new  prize  which  is  governed  with  respect  to  all  neutrals  as 
well  as  allies,  by  the  ordinary  rules,  and  which  admits  of  no  restric- 
tion upon  the  absolute  rights  of  the  captor.: 


t^ 


778  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   WAR         (Part  3 

Whereas,  moreover,  in  every  prize  case  there  is  a  governmental 
phase  in  which  the  captor  state  may  decide  it  opportune  to  act  in  a 
spirit  of  generosity  toward  an  alHed  or  neutral  power,  and  a  contentious 
phase  such  as  that  in  the  present  instance,  in  which  the  Prize  Court 
vested  with  the  litigation  by  the  government  of  the  captor  state,  has 
only  to  decide  whether  the  prize  was  legitimately  made  according  to 
the  rules  of  international  law ; 

Whereas,  regardless  of  the  regret  that  a  Belgian  prize  court  may 
feel  in  being  compelled  to  retain  an  allied  ship  which  has  distinguished 
itself  in  the  struggle  against  the  common  enemy,  it  could  not,  in  the 
given  case,  allow  itself  to  be  guided  by  any  other  principles  than  those 
of  the  law  tempered  according  to  the  circumstances  by  justice,  without 
deviating  from  its  course  of  duty; 

And,  whereas,  even  if  no  judgment  had  been  pronounced  validating 
the  German  prize  or  if  that  prize  were  considered  as  not  having  been 
validly  adjudged  by  the  competent  tribunal,  the  Belgian  state  would 
not  in  any  less  degree  have  derived  as  a  result  of  the  acts  of  the  German 
authorities  with  regard  to  the  ship  a  title  to  the  prize  in' the  juridical 
sense  of  the  term,  than  it  would  have  done  later ; 

Whereas,  in  fact  as  was  found  in  the  aforementioned  judgments  in 
the  case  of  the  Midsland  and  the  Gelderland,  the  Brussels  was  sunk 
by  the  German  naval  authorities  somewhat  to  the  right  and  a  little  to 
this  side  of  the  head  of  the  mole  of  Zeebrugge,  that  is  with  the  mani- 
fest object  of  obstructing  the  passage  to  the  sea; 

Whereas,  moreover,  the  aforementioned  authorities  have  caused 
twelve  other  ships  to  be  sunk,  either  in  the  channel  of  approach  to 
the  sluice  or  in  the  floating  docks  of  the  ports  of  Bruges; 

Whereas,  all  these  operations  formed  an  indivisible  and  systematical- 
ly concerted  unit  with  the  double  intention  of  bottling  up  the  ports 
of  Bruges,  already  obstructed  as  a  result  of  the  heroic  act  of  war  of 
the  British  navy,  and  of  hindering  the  Allied  Powers  from  taking  pos- 
session of  these  ships  in  order  to  use  them  for  the  transportation  of 
troops,  and  material  of  war,  or  of  provisions  for  the  use  of  their  army ; 

Whereas,  the  German  authorities  have  thus  acted  for  a  clearly  de- 
termined military  and  defensive  object; 

Whereas,  in  sinking  the  Brussels  under  the  aforementioned  condi- 
tions and  after  a  detention  of  more  than  one  year,  these  authorities 
have  committed  with  regard  to  the  ship  an  act  of  appropriation  jure 
belli,  characterized  and  definitive  in  such  a  way  that  with  regard  to  the 
hostile  belligerent,  the  Belgian  state,  which  has  captured  the  ship  sub- 
sequently, this  ship  can  and  should  be  considered  for  this  very  rea- 
son as  an  enemy  ship  and  of  such  a  nature  as  to  form  a  basis  for  the 
intrinsic  right  of  the  captor; 

Whereas,  only  an  eventual  right  to  indemnity  for  the  benefit  of  the 
injured  private  individual  and  against  the  German  state  by  reason 


Ch.  11)  CAPTURE    AT    SEA  779 

of  such  destruction,  committed  in  the  absence  of  any  case  of  actual 
force  majeure,  is  in  order; 

For  these  reasons : 

Thk  Council,  having  heard  the  Commissioner  of  the  Government, 
Van  Gindertaelen,  in  his  pertinent  motions  and  rendering  judgment  in 
the  absence  of  all  other  interested  parties,  declares  the  capture  of  the 
steamer  Brussels  effective  and  valid  for  the  benefit  of  the  Belgian 
state,  and  decrees,  consequently,  that  this  steamer  shall  belong  in  its 
totality  to  the  latter.    Expenses  as  in  law.^* 

2  8  During  the  World  War  (1914-lS)  Germany  denied  the  right  of  an  enemy 
merchant  vessel  to  defend  itself  against  capture.  The  most  famous  instance 
was  the  case  of  Captain  Fryatt,  commander  of  The  Brussels.  The  facts  are 
t^us  stated  by  a  competent  German  authority: 

"On  July  27,  1916,  a  military  court  of  the  Marine  Corps  in  Bruges  pro- 
nounced the  following  sentence  against  the  English  Captain,  Charles  Fryatt: 
'The  accused  is  guilty  of  having  undertaken,  although  not  belonging  to  the 
military  force  of  the  enemy,  to  assist  the  hostile  power  and  to  injure  the 
German  military  force,  and  he  is  therefore  condemned  to  death,  according  ta 
the  customs  of  war.  On  March  28,  1915,  while  in  command  of  the  English 
merchantman  Bivussels,  the  accused  endeavored  to  destroy  by  ramming  a 
German  submarine  on  the  high  seas.'  The  sentence  was  confirmed  on  the  same 
day  by  the  President  of  the  Court  of  the  Marine  Corps  and  carried  out  by 
military  execution  at  seven  o'clock  in  the  evening."  Walter  Jellinek,  Ueber 
die  landesrechtliche  Seite  des  Falles  Fryatt,  Archiv  des  offentlichen  Rechts,  vol. 
39.  p.  241  (1919). 

The  case  of  The  Brussels  should  be  considered  in  connection  with  Chapter 
XVIII,  Section  3,  Effect  of  Prize  Decisions,  post,  p.  1069. 


'780  EIGHTS  AND  DUTIES  OF   NATIONS   IN  TIME  OF  WAR         (Part  3 

CHAPTER  XII 
DESTRUCTION  OF  PRIZE  ^ 


SECTION  1.— ENEMY. 


THE  ACTEON. 
(High  Court  of  Admiralty,  1815.     2  Dod.  48.) 

This  was  the  case  of  an  American  ship,  which,  on  the  24th  of  Jan- 
uary, 1813,  sailed  from  Norfolk,  in  Virginia,  to  the  port  of  Cadiz, 
laden  with  a  cargo  of  about  4,200  barrels  of  flour,  which  had  been 
shipped  under  a  British  ^  license,  dated  the  13th  of  August,  1812,  and 
was  to  be  in  force  for  nine  months  from  the  time  of  its  date.  On  the 
27th  of  February,  the  vessel  arrived  at  Cadiz ;  and  the  master  having 
delivered  his  cargo,  produced  the  license  under  .which  he  had  sailed 
to  the  British  minister  resident  at  that  place,  who  granted  him  a  fur- 
ther license,  permitting  him  to  ship  a  cargo  of  lawful  merchandise,  and 
to  return  with  it  to  any  port  in  the  United  States  of  America,  The 
master  having  taken  on  board  a  few  boxes  of  fruit,  four  quarter  casks 
of  wine,  and  some  other  trifling  articles,  set  sail  on  the  first  of  April, 
bound  to  Boston,  in  America.  In  the  course  of  his  voyage,  he  was 
boarded  by  several  British  ships,  the  commanders  of  which  exam- 
ined his  license  and  permitted  him  to  proceed  on  his  voyage,  which  he 
accordingly  did  until  about  noon  of  the  12th  of  May,  when  he  was 
captured  by  his  Majesty's  ship  La  Hogue,  commanded  by  the  honor- 

1  See  "The  Destruction  of  Merchant  Ships  under  International  Law"  (1917) , 
an  admirable  monograph  by  Sir  Frederick  Smith,  then  Attorney  General,  and 
later  Viscount  Birkenhead,  Lord  High  Chancellor  of  Great  Britain. 

2  In  the  year  1812,  the  British  government,  being  very  desirous  that  the 
port  of  Cadiz  should  receive  a  constant  supply  of  American  flour;  granted 
numerous  licenses,  authorizing  any  vessels,  except  French  vessels,  being  un- 
armed, and  not  less  than  100  tons  burden,  and  bearing  any  flag,  except  that 
of  France,  to  import  into  Cadiz,  from  any  port  of  the  United  States  of  Ameri- 
ca, cargoes  of  grain,  meal,  flour,  or  rice,  without  molestation  on  account  of 
any  hostilities  which  might  exist  between  his  Majesty  and  the  United  States, 
notwithstanding  such  ships  and  cargoes  might  be  the  property  of  any  Ameri- 
can citizens,  and  to  whomsoever  the  same  might  belong,  and  to  receive  their 
freight,  and  to  return  to  any  port  not  blockaded,  upon  condition  that  the 
names  and  tonnage  of  the  vessels,  and  the  names  of  the  masters  should  be 
indorsed  on  such  licenses  at  the  time  of  the  vessels  clearing  from  their  ports 
of  lading;  and  such  licenses  were  to  be  in  force  for  nine  months  from  the 
time  of  their  date.  These  licenses  were  transmitted  from  this  country,  by  the 
various  merchants,  brokers,  or  agents  who  applied  for  them,  to  the  United 
States  of  America,  where  they  were  disposed  of,  and  used  as  occasions  might 
require. 


Ch.  12)  DESTRUCTION  OP  PRIZE  781 

able  Captain  Capel,  who,  on  the  evening  of  the  same  day,  set  fire  to 
the  vessel  and  destroyed  it. 

A  claim  was  given  for  the  ship  and  cargo,  as  the  property  of  citizens 
of  the  United  States  of  America,  protected  by  licenses  granted  by  his 
Majesty's  government,  and  by  his  excellency  the  minister  plenipoten- 
tiary of  Great  Britain  at  the  court  of  Spain;  and,  at  the  instance  of 
the  claimant,  a  monition  was  issued,  calling  upon  the  captors  to  pro- 
ceed to  the  legal  adjudication  of  the  ship  and  cargo.  An  appearance 
was  given  under  protest  for  the  captor,  and  the  case  now  came  on 
for  hearing.  It  was  understood  that  the  captors  did  not  contend 
against  a  sentence  of  restitution,  but  objected  to  the  payment  of  costs 
and  damages.     *     *     * 

Sir  W.  Scott.  This  question  arises  on  the  act  of  destruction  of  a 
valuable  ship  and  cargo  by  one  of  his  Majesty's  cruisers.  On  the  part 
of  the  claimants,  restitution  has  been  demanded,  and  there  can  be  no 
doubt  that  they  are  entitled  to  receive  it;  indeed,  I  understand  that  it 
is  not  now  opposed  by  the  captor  himself ;  but  it  remains  to  be  settled 
what  is  to  be  the  measure  of  restitution — how  far  it  is  to  be  carried. 
The  natural  rule  is,  that  if  a  party  be  unjustly  deprived  of  his  prop- 
erty, he  ought  to  be  put  as  nearly  as  possible  in  the  same  state  as 
he  was  before  the  deprivation  took  place;  technically  speaking,  he  is 
entitled  to  restitution,  with  costs  and  damages.  This  is  the  general 
■rule  upon  the  subject,  but,  like  all  other  general  rules,  it  must  be  sub- 
ject to  modification.  If,  for  instance,  any  circumstances  appear  which 
show  that  the  suffering  party  has  himself  furnished  occasion  for  the 
capture,  if  he  has  by  his  own  conduct  in  some  degree  contributed  to 
the  loss,  then  he  is  entitled  to  a  somewhat  less  degree  of  compensation, 
to  what  is  technically  called  simple  restitution. 

This  is  the  general  rule  of  law  applicable  to  cases  of  this  description, 
and  the  modification  to  which  it  is  subject.  Neither  does  it  make  any 
difference  whether  the  party  inflicting  the  injury  has  acted  from  inih 
proper  motives  or  otherwise.  If  the  captor  has  been  guilty  of  no  will- 
ful misconduct,  but  has  acted  from  error  and  mistake  only,  the  suf- 
fering party  is  still  entitled  to  full  compensation,  provided,  as  I  before 
observed,  he  has  not,  by  any  conduct  of  his  own,  contributed  to  the 
loss.^  The  destruction  of  the  property  by  the  captor  may  have  been 
a  meritorious  act  towards  his  own  government,  but  still  the  person 
to  whom  the  property  belongs  must  not  be  a  sufferer.  As  to  him,  it 
is  an  injury  for  which  he  is  entitled  to  redress  from  the  party  who  has 
inflicted  it  upon  him ;  and  if  the  captor  has,  by  the  act  of  destruc- 
tion, conferred  a  benefit  on  the  public,  he  must  look  to  the  government 
for  his  indemnity.  The  loss  must  not  be  permitted  to  fall  on  the  in- 
nocent sufferer. 

This  American  vessel,  having  been  invited  into  the  service  by  the 
government  of  this  country,  had  carried  a  cargo  of  corn  to  the  port  of 

8  The  Felicity,  2  Do(L:  381  (1S19). 


782  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

Cadiz,  for  the  use  of  the  army,  which  at  that  time  stood  greatly  in  need 
of  a  supply.  It  is  true  that  the  license  which  had  been  here  granted 
in  the  usual  manner  had  afterwards  been  purchased  for  money  in  Amer- 
ica, but  I  do  not  see  what  difference  that  can  make  in  the  considera- 
tion of  this  case;  for  if  the  license  was  general,  which  it  appears  to 
have  been,  it  could  be  of  no  consequence  who  were  the  individuals  who 
acted  under  it,  provided  they  compHed  with  the  conditions  annexed  to 
it.  There  is  nothing  whatever  to  show  that  the  parties  acted  other- 
wise than  in  strict  conformity  to  the  spirit  and  letter  of  the  original 
license,  signed  by  the  secretary  of  state  in  London,  and  I  must  pre- 
sume that  they  did  so  from  the  circumstance  of  their  obtaining  per- 
mission from  the  British  minister  in  Spain  to  carry  back  a  cargo  to 
America. 

Let  us  now  look  a  little  to  what  has  been  said  in  justification  of  the 
capture  and  destruction  of  this  vessel.  Why,  it  is  said  in  the  first  place, 
that  Captain  Capel  found  the  transfer  of  these  licenses  from  one  ves- 
sel to  another  rendered  such  cases  suspicious,  and  made  it  necessary 
for  him  to  use  great  vigilance  in  detecting  them ;  but  that  did  not  at 
all  impose  upon  him  a  necessity  of  destroying  the  vessels  which  were 
furnished  with  them.  It  is  said,  that  the  master  acknowledged  he 
had  bought  the  license,  but  supposing  the  fact  to  be  that  he  had  done 
so,  that  alone  would  not  render  the  transaction  illegal;  neither  could 
the  circumstance  of  the  expiration  of  the  time  for  which  the  license  was 
granted  have  had  any  such  effect,  even  supposing  the  fact  to  have  been 
so,  which  it  was  not.  It  has  been  urged,  too,  that  there  were  letters 
on  board  to  America  from  the  officers  of  Commodore  Rodgers'  squad- 
ron. What  were  the  contents  of  those  letters  does  not  at  all  appear; 
but,  in  the  absence  of  all  proof  to  the  contrary,  I  must  presume  that 
they  were  of  an  innocent  kind,  and  addressed  to  private  individuals,  for 
if  they  had  been  of  a  public  nature  and  of  a  dangerous  tendency,  I  can 
have  no  doubt  that  they  would  have  been  preserved  by  Captain  Capel, 
and  exhibited  in  this  cause. 

Lastly,  it  has  been  said  that  Captain  Capel  could  not  spare  men  from 
his  own  ship  to  carry  the  captured  vessel  to  a  British  port,  and  that  he 
could  not  suffer  her  to  go  into  Boston  because  she  would  have  fur- 
nished important  information  to  the  Americans.  These  are  circum- 
stances which  may  have  afforded  very  good  reasons  for  destroying  this 
vessel,  and  may  have  made  it  a  very  meritorious  act  in  Captain  Capel, 
as  far  as  his  own  government  is  concerned,  but  they  furnish  no  rea- 
son why  the  American  owner  should  be  a  sufferer.  I  do  not  see  that 
there  is  any  thing  that  can  fairly  be  imputed  to  the  owner  as  contribut- 
ing in  any  degree  to  the  necessity  of  capturing  or  destroying  his  prop- 
erty, and  I  think,  therefore,  that  he  is  entitled  to  receive  the  fullest  com- 
pensation from  the  captor.  It  does  not  appear  that  Captain  Capel  is 
chargeable  with  having  acted  from  any  corrupt  or  malicious  motive,  and 
if,  as  I  believe  to  have  been  the  case,  he  has  acted  from  a  sense  of 
duty  and  of  obedience  to  the  orders  he  received,  I  can  have  no  doubt 


Ch.  12)  DESTRUCTION  OF  PRIZE  783 

that  he  will  be  indemnified  upon  a  proper  representation  being  made 
to  the  government.  But  this  will  not  affect  the  right  of  the  American 
claimant,  whom  I  must  pronounce  to  be  entitled  to  restitution,  with 
costs  and  damages,  and  I  beg  it  may  be  understood  that  I  do  so  with- 
out meaning  in  the  slightest  degree  to  throw  any  imputation  on  the 
conduct  and  character  of  Captain  Capel,  but  merely  for  the  purpose 
of  giving  a  due  measure  of  restitution  to  the  claimant.* 

*  In  the  case  of  The  T^ucade,  Spinks'  Prize  Cas.  217,  223  (1855),  The  Acteon 
was  cited  by  counsel. 

Dr.  Lushington,  in  considering  it,  said :  "That  case  I  perfectly  well  re- 
member having  argued,  and  I  have  had  recourse  to  the  original  papers  to  see 
whether  my  memory  failed  me  or  not."  Therefore,  in  the  case  decided  by 
Sir  William  Scott,  and  as  his  successor,  he  thus  gave  the  weight  of  his  own 
authority  to  the  views  of  that  great  judge: 

"We  must  bear  in  mind  the  wide  difference  between  the  detention  of  a 
vessel  under  the  colours  of  the  enemy,  or  under  neutral  flags.  The  destruc- 
tion of  a  vessel  under  hostile  colours  is  a  matter  of  duty;  the  court  may 
condemn  on  proof  which  would  be  inadmissible  or  wholly  irregular  in  the 
instance  of  a  neutral  vessel.  It  may  be  justifiable  or  even  praiseworthy  in 
the  captors  to  destroy  an  enemy's  vessel.  Indeed,  the  bringing  to  adjudica- 
tion at  all  of  an  enemy's  vessel  is  not  called  for  by  any  respect  to  the  right 
of  the  enemy  proprietor,  where  there  is  no  neutral  property  on  board.  But 
for  totally  different  considerations,  which  I  need  not  now  enter  upon,  where  a 
vessel  under  neutral  colours  is  detained,  it  is  the  right  of  the  neutral  to  be 
brought  to  adjudication,  according  to  the  regular  course  of  proceeding  in  the 
Prize  Court ;  and  it  is  the  very  first  duty  of  the  captor  to  bring  it  in  if  it  be 
practicable.  From  the  performance  of  this  duty  the  captor  can  be  exonerated 
only  by  showing  that  he  was  a  bona  fide  possessor,  and  that  it  was  impossible 
for  him  to  discharge  it.  No  excuse  for  him  as  to  inconvenience  or  difiiculty  can 
be  admitted  as  t)etween  captors  and  claimants.  If  the  ship  be  lost,  that  fact 
alone  is  no  answer :  the  captor  must  show  a  valid  cause  for  detention  as 
well  as  the  loss.  If  the  ship  be  destroyed  for  reasons  of  policy  alone,  as  to 
maintain  a  blockade  or  otherwise,  the  claimant  is  entitled  to  costs  and  dam- 
ages. The  general  rule,  therefore,  is,  that  if  a  ship  under  neutral  colours  be 
not  brought  to  a  competent  Court  for  adjudication,  the  claimants  are,  as 
against  the  captor,  entitled  to  costs  and  damages.  Indeed,  if  the  captor  doubt 
his  power  to  bring  a  neutral  vessel  to  adjudication,  it  is  his  duty,  under 
ordinary  circumstances,  to  release  her."    The  Leucade,  Id.  221,  222  (1855). 

The  Felicity.  2  Dodson  3S1,  386,  P,S7  (1819).  was  an  American  ship  captured 
by  the  British  man-of-war  Endymion  on  January  1,  1814,  during  the  war 
between  Great  Britain  and  the  United  States.  The  Felicity  was  destroyed,  as 
stated  in  the  report,  "after  her  captain  and  crew,  with  their  baggage,  were 
removed  on  board  The  Endymion."  The  British  man-of-war  was  watching  an 
American  ship  of  war,  The  President,  "with  intent  to  encounter  her,"  and  the 
commander  of  The  Endymion  felt  that  he  could  not  spare  any  of  his  crew  to 
carry  The  Felicity  into  a  British  port.  After  stating  at  length  these  circum- 
stances, Sir  William  Scott  held  that: 

"Under  this  collision  of  duties  nothing  was  left  but  to  destroy  her,  for  they 
could  not,  consistently  with  their  general  duty  to  their  own  country,  or  in- 
deed its  express  injunctions,  permit  enemy's  property  to  sail  away  unmolested. 
If  impossible  to  bring  in,  their  next  duty  is  to  destroy  enemy's  property. 
Where  doubtfiil  whether  enemy's  property,  and  impossible  to  bring  in,  no  such 
obligation  arises,  and  the  safe  and  proper  course  is  to  dismiss.  Where  it  is 
neutral,  the  act  of  destruction  cannot  be  justified  to  the  neutral  owner,  by  the 
gravest  importance  of  such  an  act  to  the  public  service  of  the  captor's  own 
state ;  to  the  neutral  it  can  only  be  justified,  imder  any  such  circumstances,  by 
a  full  restitution  in  value.  These  are  rules  so  dear  in  principle  and  establish- 
ed in  practice,  that  they  require  neither  reasoning  nor  precedent  to  illustrate 
or  support  them." 


784  EIGHTS  ASiD  DUTIES   OF   NATIONS  IN   TIME  OF   WAR         (Part  3 

THE  LUSITANIA. 

(District  Court  of  the  United  States,  S.  D.  New  York.  1918.     251  Fed.  715.) 

In  Admiralty.  In  the  matter  of  the  petition  of  the  Cunard  Steam- 
ship Company,  Limited,  as  owner  of  the  steamship  Lusitania,  for  lim- 
itation of  its  liability.  Petition  granted,  and  claims  dismissed,  with- 
out costs. 

Mayer,  District  Judge."*  On  May  1,  1915,  the  British  passenger  car- 
rying merchantman  Lusitania  sailed  from  New  York,  bound  for  Liver- 
pool, with  1,257  passengers  and  a  crew  of  702,  making  a  total  of 
1,959  souls  on  board,  men,  women,  and  children.  At  approximately  2 :10 
on  the  afternoon  of  May  7,  1915,  weather  clear  and  sea  smooth,  with- 
out warning,  the  vessel  was  torpedoed  and  went  down  by  the  head  in 
about  18  minutes,  with  an  ultimate  tragic  loss  of  life  of  1,195.  Nu- 
merous suits  having  been  begun  against  the  Cunard  Steamship  Com- 
pany, Limited,  the  owner  of  the  vessel,  this  proceeding  was  brought  in 
familiar  form,  by  the  steamship  company,  as  petitioner,  to  obtain  an 
adjudication  as  to  liability,  and  to  limit  petitioner's  liability  to  its  in- 
terest in  the  vessel  and  her  pending  freight,  should  the  court  find  any 
liability.     *     *     * 

'  So  far  as  equipment  went,  the  vessel  was  seaworthy  in  the  highest 
sense.  *  *  *  fy^^  proof  is  absolute  that  she  was  not  and  never 
had  been  armed,  nor  did  she  carry  any  explosives.  She  did  carry  some 
18  fuse  cases  and  125  shrapnel  cases,  consisting  merely  of  empty  shells, 
without  any  powder  charge,  4,200  cases  of  safety  cartridges,  and  189 
cases  of  infantry  equipment,  such  as  leather  fittings,  pouches,  and  the 
like.  All  these  were  for  delivery  abroad,  but  none  of  these  munitions 
could  be  exploded  by  setting  them  on  fire  in  mass  or  in  bulk,  nor  by 
subjecting  them  to  impact.     *     *     * 

Having  thus  outlined  the  personnel,  equipment,  and  cargo  of  the 
vessel,  reference  will  now  be  made  to  a  series  of  events  preceding  her 
sailing  on  May  1,  1915.  On  February  4,  1915,  the  Imperia}  German 
government  issued  a  proclamation  as  follows: 

"Proclamation. 

"1.  The  waters  surrounding  Great  Britain  and  Ireland,  including  the 
whole  English  Channel,  are  hereby  declared  to  be  war  zone.  On  and 
after  the  18th  of  February,  1915,  every  enemy  merchant  ship,  found 
in  the  said  war  zone  will  be  destroyed  without  its  being  always  pos- 
sible to  avert  the  dangers  threatening  the  crews  and  passengers  on  that 
account.        .';  ,' 

"2.  Even  neutraL  ships  are  exposed  to  danger  in  the  war  zone,  as 
m  view  of  the  misuse  of  neutral  flags  ordered  on  January  31  by  the 
British  government,  and  of  the  accidents  of  naval  war,  it  cannot  al- 
ways be  avoided  to  strike  even  neutral  ships  in  attacks  that  are  di- 
rected at  enemy  ships. 

*  Parts  of  tlie  opinion  are  omitted. 


Ch.  12)  DESTRUCTION   OF   PRIZE  785 

"3.  Northward  navigation  around  the  Shetland  Islands,  in  the  east- 
ern waters  of  the  North  Sea,  and  in  a  strip  of  not  less  than  30  miles 
width  along  the  Netherlands  coast  is  in  no  danger. 

"Von  Pohl, 
"Chief  of  the  Admiral  Staff  of  the  Navy. 

"Berlin,  February  4,  1915." 

This  was  accompanied  by  a  so-called  memorial,  setting  forth  the 
reasons  advanced  by  the  German  government  in  support  of  the  issu- 
ance of  this  proclamation,  an  extract  from  which  is  as  follows: 

"Just  as  England  declared  the  whole  North  Sea  between  Scotland 
and  Norway  to  be  comprised  within  the  seat  of  war,  so  does  Germany 
now  declare  the  waters  surrounding  Great  Britain  and  Ireland,  in- 
cluding the  whole  English  Channel,  to  be  comprised  within  the  seat 
of  war,  and  will  prevent  by  all  the  military  means  at  its  disposal  all 
navigation  by  the  enemy  in  those  waters.  To  this  end  it  will  endeavor 
to  destroy,  after  February  18  next,  any  merchant  vessels  of  the  enemy 
which  present  themselves  at  the  seat  of  war  above  indicated,  although 
it  may  not  always  be  possible  to  avert  the  dangers  which  may  menace 
persons  and  merchandise.  Neutral  powers  are  accordingly  forewarned 
not  to  continue  to  intrust  their  crews,  passengers  or  merchandise  to 
such  vessels." 

To  this  proclamation  and  memorial  the  government  of  the  United 
States  made  due  protest  under  date  of  February  10,  1915.  On  the 
same  day  protest  was  made  to  England  by  this  government  regarding 
the  use  of  the  American  flag  by  the  Lusitania  on  its  voyage  through 
the  war  zone  on  its  trip  from  New  York  to  Liverpool  of  January  30, 
1915,  in  response  to  which,  on  February  19,  Sir  Edward  Grey,  Sec- 
retary of  State  for  Foreign  Affairs,  handed  a  memorandum  to  Mr. 
Page,  the  American  Ambassador  to  England,  containing  the  following 
statement : 

"It  was  understood  that  the  German  government  had  announced  their 
intention  of  sinking  British  merchant  vessels  at  sight  by  torpedoes, 
without  giving  any  opportunity  of  making  any  provisions  for  saving 
the  lives  of  non-combatant  crews  and  passengers.  It  was  in  conse- 
quence of  this  threat  that  the  Lusitania  raised  the  United  States  flag 
on  her  inward  voyage  and  on  her  subsequent  outward  voyage.  A  re- 
quest was  made  by  the  United  States  passengers  who  were  embarking 
on  board  her  that  the  United  States  flag  should  be  hoisted,  presumably 
to  insure  their  safety."     *     *     * 

Beginning  with  the  30th  of  January,  1915,  and  prior  to  the  sinking 
of  the  Lusitania  on  May  7,  1915,  German  submarines  attacked  and 
seemed  to  have  sunk  20  merchant  and  passenger  ships  within  about 
100  miles  of  the  usual  course  of  the  Lusitania,  chased  2  other  vessels, 
which  escaped,  and  damaged  still  another. 

It  will  be  noted  that  nothing  is  stated  in  the  German  memorandum, 
supra,  as  to  sinking  enemy  merchant  vessels  without  warning,  but,  on 
Scott  Int. Law— 50 


786  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF   WAR         (Part  3 

the  contrary,  the  implication  is  that  settled  international  law  as  to  visit 
and  search,  and  an  opportunity  for  the  lives  of  passengers  to  be  safe- 
guarded, will  be  obeyed,  "although  it  may  not  always  be  possible  to 
avert   the   dangers    which   may    menace    persons    and   merchandise." 

On  Saturday,  May  1,  1915,  the  advertised  sailing  date  of  the  Lusi- 
tania  from  New  York  to  Liverpool  on  the  voyage  on  which  she  was 
subsequently  sunk,  there  appeared  the  following  advertisement  in  the 
New  York  Times,  New  York  Tribune,  New  York  Sun,  New  York 
Herald,  and  New  York  World;  this  advertisement  being,  in  all  in- 
stances except  one,  placed  directly  over,  under,  or  adjacent  to  the  ad- 
vertisement of  the  Cunard  Line  regarding  the  sailing  of  the  Lusitania: 

"Travelers  intending  to  embark  on  the  Atlantic  voyage  are  reminded 
that  a  state  of  war  exists  between  Germany  and  her  allies  and  Great 
Britain  and  her  allies.  That  the  zone  of  war  includes  the  waters  ad- 
jacent to  the  British  Isles.  That  in  accordance  with  formal  notice 
given  by  the  Imperial  German  government  vessels  flying  the  flag  of 
Great  Britain  or  of  any  of  her  allies  are  liable  to  destruction  in  those 
waters  and  that  travelers  sailing  in  the  war  zone  on  ships  of  Great 
Britain  or  her  allies  do  so  at  their  own  risk. 

"April  22,  1915.  Imperial  German  Embassy, 

"Washington,  D.  C." 

This  was  the  first  insertion  of  this  advertisement,  although  it  was 
dated  more  than  a  week  prior  to  its  publication.     *     *     * 

No  transatlantic  passenger  liner,  and  certainly  none  carrying  Amer- 
ican citizens,  had  been  torpedoed  up  to  that  time.  The  submarines, 
therefore,  could  lay  their  plans  with  facility  to  destroy  the  vessel  some- 
where on  the  way  from  Fastnet  to  Liverpool,  knowing  full  well  the 
easy  prey  which  would  be  afforded  by  an  unarmed,  unconvoyed,  well- 
known  merchantman,  which,  from  every  standpoint  of  international 
law,  had  the  right  to  expect  a  warning  before  its  peaceful  passengers 
were  sent  to  their  death.     *     *     * 

I  find,  therefore,  as  a  fact,  that  the  captain,  and,  hence,  the  petitioner, 
were  not  negligent.  The  importance  of  the  cause,  however,  justifies 
the  statement  of  another  ground  which  effectually  disposes  of  any 
question  of  liability. 

It  is  an  elementary  principle  of  law  that  even  if  a  person  is  negli- 
gent, recovery  cannot  be  had,  unless  the  negligence  is  the  proximate 
cause  of  a  loss  or  damage. 

There  is  another  rule,  settled  by  ample  authority,  viz.  that,  even  if 
negligence  is  shown,  it  cannot  be  the  proximate  cause  of  the  loss  or 
damage,  if  an  independent  illegal  act  of  a  third  party  intervenes  to 
cause  the  loss.  *  *  *  The  question,  then,  is  whether  the  act  of 
the  German  submarine  commander  was  an  illegal  act. 

The  United  States  courts  recognize  the  binding  force  of  international 
law.    As  was  said  by  Mr,  Justice  Gray  in  The  Paquete  Habana,  175  U. 

Scott  Int.Law 


Ch.  12)  DESTRUCTION   OF   PRIZE  787 

S.  677,  700,  20  Sup.  Ct.  290,  299,  44  L.  Ed.  320:  "International  law 
is  part  of  our  law,  and  must  be  ascertained  and  administered  by  the 
courts  of  justice  of  appropriate  jurisdiction  as  often  as  questions  of 
right  depending  upon  it  are  duly  presented  for  their  determination." 

At  least,  since  as  early  as  June  5,  1793,  in  the  letter  of  Mr.  Jeffer- 
son, Secretary  of  State,  to  the  French  minister,  our  government  has 
recognized  the  law  of  nations  as  an  "integral  part"  of  the  laws  of  the 
land.  Moore's  International  Law  Digest,  I,  p.  10;  The  Scotia,  14 
Wall.  170,  187,  20  L.  Ed.  822;  The  New  York,  175  U.  S.  187,  197, 
20  Sup.  Ct.  290,  44  L.  Ed.  126;  Kansas  v.  Colorado,  185  U.  S.  125, 
146,  22  Sup.  Ct.  552,  46  L.  Ed.  838;  Kansas  v.  Colorado,  206  U.  S. 
46,  27  Sup.  Ct.  655,  51  L.  Ed.  956.  To  ascertain  international  law: 
"Resort  must  be  had  to  the  customs  and  usages  of  civihzed  nations, 
and,  as  evidence  of  these,  to  the  works  of  commentators  and  jurists. 
*  *  *  Such  works  are  resorted  to  by  judicial  tribunals  *  *  * 
for  trustworthy  evidence  of  what  the  law  really  is."  The  Paquete 
Habana,  175  U.  S.  677,  20  Sup.  Ct.  290,  44  L.  Ed.  320  (and  author- 
ities cited). 

Let  us  first  see  the  position  of  our  government,  and  then  ascertain 
whether  that  position  has  authoritative  support.  Mr.  Lansing,  in  his 
official  communication  to  the  German  government,  dated  June  9,  1915, 
stated:  "But  the  sinking  of  passenger  ships  involves  principles  of  hu- 
manity which  throw  into  the  background  any  special  circumstances  of 
detail  that  may  be  thought  to  affect  the  cases — principles  which  lift  it, 
as  the  Imperial  German'government  will  no  doubt  be  quick  to  recognize 
and  acknowledge,  out  of  the  class  of  ordinary  subjects  of  diplomatic 
discussion  or  of  international  controversy.  Whatever  be  the  other  facts 
regarding  the  Lusitania,  the  principal  fact  is  that  a  great  steamer,  pri- 
marily and  chiefly  a  conveyance  for  passengers,  and  carrying  more  than 
a  thousand  souls,  who  had  no  part  or  lot  in  the  conduct  of  the  war,  was 
torpedoed  and  sunk  without  so  much  as  a  challenge  or  a  warning,  and 
that  men,  women,  and  children  were  sent  to  their  death  in  circumstances 
unparalleled  in  modern  warfare.  The  fact  that  more  than  one  hundred 
American  citizens  were  among  those  who  perished  made  it  the  duty 
of  the  government  of  the  United  States  to  speak  of  these  things,  and 
once  more,  with  solemn  emphasis,  to  call  the  attention  of  the  Imperial 
German  government  to  the  grave  responsibility  which  the  government 
of  the  United  States  conceives  that  it  has  incurred  in  this  tragic  oc- 
currence, and  to  the  indisputable  principle  upon  which  that  responsi- 
bility rests.  The  government  of  the  United  States  is  contending  for 
something  much  greater  than  mere  rights  of  property  or  privileges  of 
commerce.  It  is  contending  for  nothing  less  high  and  sacred  than 
the  rights  of  humanity,  which  every  government  honors  itself  in  re- 
specting, and  which  no  government  is  justified  in  resigning  on  behalf 
of  those  under  its  care  and  authority.  Only  her  actual  resistance  to 
capture,  or  refusal  to  stop  when  ordered  to  do  so  for  the  purpose  of 
visit,  could  have  afforded  the  commander  of  the  submarine  any  justi- 


7S8  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

fication  for  so  much  as  putting  the  Hves  of  those  on  board  the  ship  in 
jeopardy.  This  principle  the  government  of  the  United  States  under- 
stands the  explicit  instructions  issued  on  August  3,  1914,  by  the  Im- 
perial German  Admiralty  to  its  commanders  at  sea,  to  have  recognized 
and  embodied,  as  do  the  naval  codes  of  all  other  nations,  and  upon 
it  every  traveler  and  seaman  had  a  right  to  depend.  It  is  upon  this 
principle  of  humanity,  as  well  as  upon  the  law  founded  upon  this 
principle,  that  the  United  States  must  stand.  *  *  *  The  govern- 
ment of  the  United  States  cannot  admit  that  the  proclamation  of  a 
war  zone  from  which  neutral  ships  have  been  warned  to  keep  away 
may  be  made  to  operate  as  in  any  degree  an  abbreviation  of  the  rights 
either  of  American  shipmasters  or  of  American  citizens  bound  on  law- 
ful errands  as  passengers  on  merchant  ships  of  belligerent  nationality. 
It  does  not  understand  the  Imperial  German  government  to  question 
those  rights.  It  understands  it,  also,  to  accept  as  established  beyond 
question  the  principle  that  the  lives  of  non-combatants  cannot  lawfully 
or  rightfully  be  put  in  jeopardy  by  the  capture  or  destruction  of  an 
unresisting  merchantman,  and  to  recognize  the  obligation  to  take  suffi- 
cient precaution  to  ascertain  whether  a  suspected  merchantman  is  in 
fact  of  belligerent  nationality,  or  is  in  fact  carrying  contraband  of  war 
under  a  neutral  flag.  The  government  of  the  United  States,  therefore, 
deems  it  reasonable  to  expect  that  the  Imperial  German  government 
will  adopt  the  measures  necessary  to  put  these  principles  into  prac- 
tice in  respect  of  the  safeguarding  of  American  lives  and  American 
•ships,  and  asks  for  assurances  that  this  will  be  done."  White  Book 
of  Department  of  State,  entitled  "Diplomatic  Correspondence  with  Bel- 
ligerent Governments  Relating  to  Neutral  Rights  and  Duties,  European 
War  No.  2,"  at  page  172.  Printed  and  distributed  October  21,  1915. 
The  German  government  found  itself  compelled  ultimately  to  recog- 
nize the  principle  insisted  upon  by  the  government  of  the  United  States, 
for,  after  considerable  correspondence,  and  on  May  4,  1916  (after  the 
Sussex  had  been  sunk),  the  German  government  stated :  "The  German 
submarine  fOrces  have  had,  in  fact,  orders  to  conduct  submarine  war- 
fare in  accordance  with  the  general  principles  of  visit  and  search  and 
destruction  of  merchant  vessels  as  recognized  by  international  law ; 
the  sole  exception  being  the  conduct  of  warfare  against  the  enemy 
trade  carried  on  enemy  freight  ships  that  are  encountered  in  the  war 
zone  surrounding  Great  Britain.  *  *  *  f  he  German  government, 
guided  by  this  idea,  notifies  the  government  of  the  United  States  that 
the  German  naval  forces  have  received  the  following  orders :  In  ac- 
cordance with  the  general  principles  of  visit  and  search  and  destruc- 
tion of  merchant  vessels  recognized  by  international  law,  such  vessels, 
both  within  and  without  the  area  declared  as  naval  war  zone,  shall  not 
be  sunk  without  warning  and  without  saving  human  lives,  unless  these 
ships  attempt  to  escape  or  offer  resistance."  See  Official  Communica- 
tion by  German  Foreign  Office  to  Ambassador  Gerard,  May  4,  1916 
(White  Book  No.  3  of  Department  of  State,  pp.  302,  305). 


Ch.  12)  DESTRUCTION   OF   PRIZE       *  789 

There  is,  of  course,  no  doubt  as  to  the  right  to  make  prize  of  an  en- 
emy ship  on  the  high  seas,  and,  under  certain  conditions,  to  destroy 
her,  and  equally  no  doubt  of  the  obHgation  to  safeguard  the  lives  of  all 
persons  aboard,  whether  passengers  or  crew.  Phillimore  on  Interna- 
tional Law  (3d  Ed.)  vol.  3,  p.  584;  Sir  Sherston  Baker  on  First  Steps  in 
International  Law,  p.  236;  G.  B.  Davis  on  Elements  of  International 
Law,  pp.  358,  359;  A.  Pearce  Higgins  on  War  and  the  Private  Citi- 
zen, pp.  33,  78,  referring  to  proceedings  of  Institute  of  International 
Law  at  Turin  in  1882;  Creasy  on  International  Law,  p.  562,  quoting 
Chief  Justice  Cockburn  in  his  judgment  in  the  Geneva  Arbitration; 
L.  A.  Atherby-Jones  on  Commerce  in  War,  p.  529 ;  Professor  Holland's 
article,  Naval  War  College,  1907,  p.  82 ;  Oppenheim  on  International 
Law  (2d  Ed.)  vol.  2,  pp.  244,  311;  Taylor  on  International  Law,  p. 
572;  Westlake  on  International  Law  (2d  Ed.)  p.  309,  part  II;  Hal- 
leck  on  International  Law,  vol.  2,  pp.  15,  16;  Vattel's  Law  of  Nations 
(Chitty's  E(J.)  362.     *     *     * 

In  addition  to  the  authorities  supra  are  the  regulations  and  practices 
of  various  governments.  In  1512,  Henry  VIII  issued  instructions  to 
the  Admiral  of  the  Fleet  which  accord  with  our  understanding  of 
modern  international  law.  Hosack's  Law  of  Nations,  p.  168.  Such 
has  been  England's  course  since.  22  Geo.  II,  c.  33,  §  2,  subsec.  9  (1749) ; 
British  Admiralty  Manual  of  Prize  Law  188,  §§  303,  304. 

Substantially  the  same  rules  were  followed  in  the  Russian  and  Japa- 
nese regulations,  and  probably  in  the  codes  or  rules  of  many  other  na- 
tions. Russian  Prize  Regulations,  March  27,  1895  (cited  in  Moore's 
Digest,  vol.  7,  p.  518);  Japanese  Prize  Law  of  1894,  art.  22  (cited  in 
Moore,  supra,  vol.  7,  p.  525) ;  Japanese  Regulations,  March  7,  1904 
(see  Takahashi's  Cases  on  International  Law  during  Chino-Japanese 
War). 

The  rules  recognized  and  practiced  by  the  United  States,  among 
other  things,  provide:  "(10)  In  the  case  of  an  enemy  merchantman  it 
may  be  sunk,  but  only  if  it  is  impossible  to  take  it  into  port,  and  pro- 
vided always  that  the  persons  on  board  are  put  in  a  place  of  safety," 
U.  S.  White  Book,  European  War,  No.  3,  p.  192. 

These  humane  principles  were  practiced,  both  in  the  War  of  1812 
and  during  our  own  war  of  1861-1865.  Even  with  all  the  bitterness 
(now  happily  ended  and  forgotten)  and  all  the  difficulties  of  having  no 
port  to  which  to  send  a  prize,  Capt.  Semmes,  of  the  Alabama,  strictly 
observed  the  rule  as  to  human  life,  even  going  so  far  as  to  release  ships 
because  he  could  not  care  for  the  passengers.  But  we  are  not  con- 
fined to  American  and  English  precedents  and  practices. 

While  acting  contrary  to  its  official  statements,  yet  the  Imperial  Ger- 
man government  recognized  the  same  rule  as  the  United  States,  and, 
prior  to  the  sinking  of  the  Lusitania,  had  not  announced  any  other 
rule.  The  war  zone  proclamation  of  February  4,  1915,  contained  no 
warning  that  the  accepted  rule  of  civilized  naval  warfare  would  be 
discarded  by  the  German  government.    Indeed,  after  the  Lusitania  was 


790  RIGHTS  AND   DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

sunk,  the  German  government  did  not  make  any  such  claim,  but,  in  an- 
swer to  the  first  American  note  in  reference  to  the  Lusitania,  the  Ger- 
man Foreign  Office,  per  Von  Jagow,  addressed  to  Ambassador  Gerard  a 
note,  dated  May  18,  1915,  in  which,  inter  aha,  it  is  stated  in  connection 
with  the  sinking  of  the  British  steamer  Falaba : 

"In  the  case  of  the  sinking  of  the  EngUsh  steamer  Falaba,  the  com- 
mander of  the  German  submarine  had  the  intention  of  allowing  pas- 
sengers and  crew  ample  opportunity  to  save  themselves.  It  was  not 
until  the  captain  disregarded  the  order  to  lay  to  and  took  to  flight,  send- 
ing up  rocket  signals  for  help,  that  the  German  commander  ordered 
the  crew  and  passengers  by  signals  and  megaphone  to  leave  the  ship 
within  10  minutes.  As  a  matter  of  fact  he  allowed  them  23  minutes, 
and  did  not  fire  the  torpedo  until  suspicious  steamers  were  hurrying 
to  t)ie  aid  of  the  Falaba."  White  Book  No.  2,  U.  S.  Department  of 
State,  p.  169. 

Indeed,  as  late  as  May  4,  1916,  Germany  did  not  dispute  the  appli- 
cability of  the  rule,  as  is  evidenced  by  the  note  written  to  our  govern- 
ment by  Von  Jagow,  of  the  German  Foreign  Office,  an  extract  from 
which  has  been  quoted  supra.  Further,  section  116  of  the  German 
Prize  Code  (Huberich  &  King  translation,  p.  68),  in  force  at  the  date 
of  the  Lusitania's  destruction,  conformed  with  the  American  rule.  It 
provided :  "Before  proceeding  to  a  destruction  of  the  vessel,  the  safety 
of  all  persons  on  board,  and,  so  far  as  possible,  their  effects,  is  to 
be  provided  for,  and  all  ship's  papers  and  other  evidentiary  material, 
which  according  to  the  views  of  the  persons  at  interest,  is  of  value 
for  the  formulation  of  the  judgment  of  the  prize  court,  are  to  be  taken 
over  by  the  commander." 

Thus,  when  the  Lusitania  sailed  from  New  York,  her  owner  and 
master  were  justified  in  believing  that,  whatever  else  had  theretofore 
happened,  this  simple,  humane,  and  universally  accepted  principle  would 
not  be  violated.     *     *     * 

The  fault,  therefore,  must  be  laid  upon  those  who  are  responsible  for 
the  sinking  of  the  vessel,  in  the  legal  as  well  as  moral  sense.  It  is  there- 
fore not  the  Cunard  Line,  petitioner,  which  must  be  held  liable  for 
the  loss  of  life  and  property.  The  cause  of  the  sinking  of  the  Lusi- 
tania was  the  illegal  act  of  the  Imperial  German  government,  acting 
through  its  instrument,  the  submarine  commander,  and  violating  a 
cherished  and  humane  rule  observed,  until  this  war,  by  even  the  bit- 
terest antagonists.  As  Lord  Mersey  said:  "The  whole  blame  for  the 
cruel  destruction  of  life  in  this  catastrophe  must  rest  solely  with  those 
who  plotted  and  with  those  who  committed  the  crime."     *     *     * 


Ch.  12)  DESTRUCTION   OF   PRIZE  791 

THE  LUDWIG  and  THE  VORWARTS. 

(French   Provisional   Commission   Replacing  the   Ck)uncil   of   State,   1872.     5 

Calvo,  Le  Droit  International   [5th  Ed.,  1896]  p.  279.) 

Two  vessels  flying  the  German  flag,  the  Ludwig  and  the  Vorwarts, 
were  burned  on  the  day  of  their  capture  (October  21,  1870)  by  the 
commander  of  the  vessel  of  war  Desaix  who  drew  up  a  report  set- 
ting forth  the  necessity  of  this  destruction.  As  a  result  of  claims  on 
the  part  of  the  owners  of  the  Ludwig  and  of  claims  by  the  captors, 
the  case  was  brought  before  the  Prize  Court  sitting  at  Bordeaux,  which 
decided  on  February  27,  1871,  that  it  appeared  from  the  ships'  papers 
and  from  the  examination  that  these  vessels  belonged  to  German  sub- 
jects ;  that  their  capture  was  therefore  legal  and  valid ;  that  since  the 
destruction  was  caused  by  force  majeure  in  order  to  preserve  the  se- 
curity of  the  operations  of  the  captor,  it  was  not  in  order  to  grant 
reparation  for  the  benefit  of  the  captured ;  that  in  acting  as  they  did, 
the  captors  made  use  of  a  right  which  is  doubtless  rigorous  but  the  ex- 
ercise of  which  is  provided  for  by  the  laws  of  war  and  recommended 
by  the  instructions  which  they  bore. 

The  owners  of  the  two  vessels,  as  well  as  the  consignees  and  the 
shippers  of  their  cargoes,  lodged  an  appeal  from  this  decision  before 
the  Council  of  State.  The  former  contested  the  legitimacy  of  the  cap- 
ture and  accordingly  of  the  destruction  of -the  vessel  and  demanded  that 
the  value  thereof  be  restored  to  them.  On  their  side,  the  consignees 
and  shippers  of  the  cargo,  availing  themselves  of  their  capacity  as 
neutral  subjects,  invoked  Article  3  of  the  declaration  of  the  Congress 
of  Paris  of  April  16,  1856,  which  exempts  from  confiscation  neutral 
goods  aboard  an  enemy  vessel,  and  they  claimed  the  value  of  their 
destroyed  property. 

The  provisional  commission  charged  with  replacing  the  Council  of 
State,  by  decree  of  March  16,  1872,  rejected  the  appeal  of  both  par-, 
ties,  basing  its  decision  upon  the  following  reasons : 

"Considering  that  if,  according  to  the  terms  of  the  declaration  of 
the  Congress  of  Paris  of  April  16,  1856,  neutral  goods  are  not  subject 
to  seizure  aboard  an  enemy  vessel,  it  follows  from  this  only  that  the 
neutral  who  has  loaded  his  goods  upon  this  vessel  is  entitled  to  the 
restoration  of  his  goods,  or,  in  case  of  sale,  to  the  payment  of  their 
value ;  but  that  it  can  not  be  deduced  from  this  declaration  that  he 
can  claim  an  indemnity  by  reason  of  the  losses  which  may  have  been 
caused  to  him  either  by  the  capture  of  the  vessel  when  this  capture  has 
been  recognized  as  valid,  or  by  the  acts  of  war  which  accompanied  or 
followed  this  capture; 

"Considering  that  it  appears  from  the  examination  that  the  capture 
of  the  Ludwig  and  of  the  Vorwarts  was  judged  valid  and  that  the 
destruction  of  the  vessels  with  their  cargoes  took  place  at  the  order  of 
the  commander  of  the  captor  vessel,  for  the  reason  that  the  security 
of  this  vessel  did  not  permit  a  part  of  the  members  of  the  crew  to 


792  EIGHTS  AND  DUTIES   OP  NATIONS  IN  TIME  OF   WAR         (Part  3 

be  detached  for  the  purpose  of  escorting  the  prizes  to  a  port  of  France, 
by  reason  of  the  large  number  of  prisoners  aboard ; 

"That  under  these  circumstances  the  destruction  of  these  prizes 
constituted  an  act  of  war  the  advisabihty  of  which  the  owners  of  the 
cargoes  can  not  be  permitted  to  discuss,  and  which  can  not  give  rise  to 
a  right  to  indemnity  on  their  part.     *     *     *  " 


THE  CHEREF. 

(French  Prize  Court,  1915.     Journal  Offlciel,  January  9,   1916,  p.  231.) 

In  the  name  of  the  French  people,  the  Prize  Court  has  rendered  the 
following  decision,  between,  on  one  hand,  the  captain,  proprietors, 
shippers  and  consignees  of  the  caic  Cheref  stopped  at  sea,  28°  17' 
east  longitude  and  36°  36'  north  latitude  on  May  12,  1915,  at  8:30 
o'clock  by  the  French  armed  cruiser  Jeanne  d'Arc,  and,  on  the  other 
hand,  the  minister  of  the  Navy,  acting  in  behalf  of  the  captors  and  of 
the  Pension  Fund  for  Disabled  Sailors,  *  *  *  having  heard  the 
report  of  M.  Fuzier,  member  of  the  court  and  the  observations  of  M. 
Chardenet,  Government  Commissioner,  in  support  of  the  motions  stated 
above, 

The  Court,  after  due  deliberation. 

Whereas,  on  the  one  hand,  from  the  papers  there  appears  to  be  no 
doubt  that  the  caic  Cheref  was  of  Ottoman  nationality;  that  at  the 
time  of  its  seizure  war  had  actually  existed  between  France  and  Turkey 
since  October  29,  1914,  at  3  a.  m.  when  the  Turks  bombarded  the 
port  of  Odessa  and  cannonaded  a  French  ship,  killing  two  French 
nationals  on  board;  that  thus  the  cargo  of  this  caic  should  be  con- 
sidered as  enemy  property,  according  to  the  terms  of  article  59  of  the 
Declaration  of  London ;  and  that  no  proof  or  statement  has  been 
made  to  the  contrary;  that  therefore  the  commodities  composing  this 
cargo  constituted  enemy  merchandise  under  enemy  flag  and  were  not 
among  those  articles  which  in  virtue  of  the  declaration  of  the  Paris 
Congress  of  April  16,  1856,  were  exempt  from  seizure; 

Whereas,  on  the  other  hand,  it  is  established  by  the  above-mentioned 
report  of  the  commander  of  the  cruiser  Jeanne  d'Arc  that  it  was  im- 
possible to  tow  this  old  and  unseaworthy  sailer  into  the  nearest  Allied 
port  a  hundred  and  twenty  miles  away ;  that  thus  the  capturing  vessel, 
after  taking  the  cargo  on  board,  legally  destroyed  the  caic  whose  crew 
had  fled  to  land  at  the  approach  of  the  cruiser, 

Decides : 

1.  The  seizure  of  the  Turkish  caic  and  its  cargo  is  declared  good 
and  valid. 

2.  The  sailer  having  been  destroyed  for  the  reasons  indicated  above, 
there  is  no  way  of  determining  its  value. 

3.  The  sum  representing  the  value  of  10  tons  of  barley,  50  tubs  of 
oil  and  butter,  and  11  sacks  of  flour  committed  to  the  French  consul 


Ch.  12)  DESTRUCTION   OF   PRIZE  793 

at  Alexandria  shall  be  turned  over  to  its  rightful  claimants,  in  conform- 
ity with  the  laws  and  regulations  in  force. 

Deliberated  at  Paris,  at  the  meeting  of  November  29,  1915.     *     *     * 


SECTION  2.— NEUTRAL 


THE  KNIGHT  COMMANDER. 

(Supreme  Prize  Court   of   Russia,   1905.     1   Hurst  &   Bray's   R)ussian   and 
Japanese  Prize  Cases  [1912]  54.) 

Decision  of  the  Vladivostock  Prize  Court. 

By  order  of  His  Imperial  Majesty,  the  Prize  Court  of  the  port  of 
Vladivostock,  on  the  24th  July  (6th  August)  1904,  met  and  heard  the 
case  of  the  capture  by  a  detachment  of  cruisers  of  the  Pacific  squad- 
ron on  the  11th  (24th)  July  in  the  Pacific  Ocean  of  the  British  mer- 
chant steamer  "Knight  Commander."  *  *  *  f]^^  facts  of  the  case 
are  as  follows: 

On  the  11th  (24th)  July  1904,  about  6  a.  m.,  a  separate  division  of 
cruisers  under  the  command  of  Rear-Admiral  Jessen,  consisting  of  the 
Rossia,  the  Gromoboi,  and  the  Rurik,  while  in  the  Pacific,  in  latitude 
34°  21'  N.  and  138°  53'  5"  E.,«  sighted  a  merchant  steamer.  The 
cruiser  Rossia  gave  chase,  and  when  within  15  to  20  cables'  lengths 
hoisted  the  signal  "Stop,"  and  then  sent  in  succession  two  blank  shots, 
and  then  two  projectiles  across  her  bow  as  the  steamer  continued  on 
her  course  at  full  speed  towards  the  entry  into  the  Tokio  Gulf.  Only 
then  did  the  steamer  stop  and  raise  the  British  commercial  flag.  By 
order  of  the  commander  of  the  detachment  the  cruiser  Rossia  hoisted 
the  signal  "Master  come  on  board  with  papers,"  but  as  this  order  was 
not  obeyed  a  party,  headed  by  Lieutenant  Gavrishenko  and  Sub-Lieuten- 
ant Baron  Aminov,  was  sent  on  board  to  examine  the  steamer,  papers, 
and  cargo.  The  examination  showed  that  the  steamer  was  called  the 
Knight  Commander,  of  British  nationality,  J.  R.  Durant,  master;  that 
she  was  on  a  voyage  to  Japan  with  a  cargo  consisting  of  railroad  ma- 
terial, bridge  material,  machinery,  and  various  articles  ;  that  the  master 
of  the  steamer  was  not  able  to  present  any  documents  for  the  cargo,  but 
the  examination  of  the  holds  by  the  above-named  officers  made  it  evi- 
dent that  they  were  filled  with  contraband  of  war;  the  other  cargo 
evidently  constituted  only  an  unimportant  fraction  of  the  entire  cargo. 
After  examination  of  the  steamer.  Lieutenant  Gavrishenko  returned  on 
board  the  cruiser,  bringing  the  master  and  documents  along  with  him. 
Having  inquired  of  the  master,  Durant,  the  reason  why  there  were  no 
bills  of  lading  for  the  cargo  among  the  papers  presented,  and  having 

8  To  the  south  of  Japan  about  SO  knots  from  Yokohama  between  Irosaki 
(cape)  and  Shichi  To  (islands). 


794  RIGHTS   AND   DUTIES   OF  NATIONS   IN   TIME   OF   WAR         (Part  3 

learnt  from  him  that  the  steamer  only  had  coal  for  four  days  longer. 
Rear  Admiral  Jessen  declared  to  the  master  that  as  the  steamer  was 
subject  to  condemnation,  and  could  not  be  taken  to  a  Russian  port,  on 
account  of  shortage  of  coal,  she  would  be  destroyed.  Half  an  hour's 
time  "was  given  for  the  removal  of  the  crew.  At  8:32  the  master  re- 
turned on  board  his  vessel  and  upon  removal  of  all  hands  on  board 
she  was  sunk  by  explosive  shells  at  9:15. 

On  the  return  of  the  separate  detachment  of  cruisers  from  sea,  the 
sinking  of  the  said  steamer  was  submitted  to  the  examination  of  the 
Prize  Court  of  the  port  of  Vladivostock.     *     *     * 

Therefore  the  court  holds  that  the  following  facts  are  proved: 

(1)  The  fact  that  the  owner  of  the  Knight  Commander  acted  illegally 
in  order  to  increase  the  resources  of  our  antagonist,  by  transporting 
articles  of  contraband  to  him  at  Chemulpo,  the  immediate  theatre  of 
war; 

(2)  Suppression  by  the  master  of  the  said  steamer  of  an  entire  file 
of  important  documents  relating  to  his  vessel  and  to  his  cargo,  and 
undoubted  knowledge  on  his  part  that  he  was  conveying  articles  of  con- 
traband to  the  enemy;   and 

(3)  The  presence  on  the  said  steamship,  at  the  time  of  capture,  of 
contraband  in  quantity  exceeding  one-half  of  her  entire  cargo. 

On  these  grounds  and  taking  into  consideration  the  actual  facts  of 
the  pi;-esent  case,  as  provided  By  articles  5,  8-13,  of  the  Regulations  on 
Naval  Prizes,'  the  Prize  Court  finds: 

(1)  That  the  British  steamer  Knight  Commander  was  captured  in  a 
legal  manner,  in  compliance  with  the  rules  laid  down  in  articles  2,  3, 
15-17  of  the  Instructions ;  * 

(2)  That  the  said  steamer,  having  been  captured  while  conveying 
contraband  to  the  enemy  in  quantity  exceeding  one-half  of  her  cargo, 
and  the  said  contraband,  are  lawful  prize; 

And  condemns  the  steamship  Knight  Commander  and  the  contraband 
cargo  on  board  her  at  the  moment  of  capture  as  lawful  prize. 

The  owners  of  the  Knight  Commander  appealed  against  the  above 
decision  to  the  Supreme  Prize  Court,  and  various  owners  of  cargo  also 
presented  petitions  to  the  Supreme  Prize  Court  claiming  compensation 
for  the  goods  belonging  to  them.     *     *     * 

Decision  of  the  Supreme  Prize  Court. 
By  order  of  His  Imperial  Majesty,  the  Supreme  Prize  Court  assem- 
bled on  the  19th  day  of  November,  1905,     *     *     *     heard  the  appeal 
against  the  judgment  of  the  Vladivostock  Port  Prize  Court  of  the  24th 
July  1904,  holding  the  steamer  Knight  Commander  and  the  contraband 

cargo  on  board  at  the  time  of  capture  to  be  liable  to  condemnation. 
*     *     * 

In  accordance  with  article  11  of  the  Regulations  relating  to  Naval 

7  Russian  &  Japanese  Prize  Cases,  vol.  I,  App.  A. 

8  Id.,  App.  B. 


Ch.  12)  DESTRUCTION   OF   PRIZE  795 

Prizes,®  merchant  vessels  of  neutral  nationality  are  subject  to  con- 
demnation when  they  are  caught  in  the  act  of  carrying  to  the  enemy, 
or  to  an  enemy  port,  articles  of  contraband  of  war  in  quantity  exceed- 
ing in  bulk  or  weight  half  the  total  cargo,  while  such  cargo  is  con- 
demned under  article  12  (1),  when  it  constitutes  contraband  of  war  car- 
ried to  the  enemy  or  to  an  enemy  port. 

The  literal  interpretation  of  the  Regulations  quoted  shows  that,  for 
the  condemnation  of  a  vessel  carrying  articles  of  contraband  of  war 
(other  than  appurtenances  for  fire-arms  and  stores  and  explosives),  it 
is  necessary  to  prove  that  this  cargo  exceeds  in  bulk  or  weight  half 
the  total  cargo,  while,  for  the  condemnation  of  the  cargo,  it  is  en- 
tirely unnecessary  to  determine  the  proportion  of  contraband  to  the 
total  cargo,  as  the  condemnation  of  the  cargo  depends  entirely  on  wheth- 
er it  constitutes  contraband  of  war,  and  not  on  the  quantity  transported. 
Article  12  (1).  This  distinction  must  be  borne  in  mind  in  deciding  the 
present  case,  and  therefore,  to  justify  the  condemnation  of  the  cargo 
carried  by  the  Knight  Commander,  it  is  sufficient  to  prove  that  it  con- 
stituted contraband  of  war,  and  was  being  carried  to  an  enemy  port, 
while  the  quantity  of  the  cargo  carried  has  no  importance.  On  the 
other  hand,  for  the  condemnation  of  the  vessel,  it  is  necessary  to  prove 
that  she  was  carrying  contraband  exceeding  in  quantity  half  the  total 
cargo.     *     *     * 

The  other  objections  to  the  decision  of  the  Vladivostock  Prize  Court 
condemning  the  vessel  were  as  follows : 

1.  That  only  an  enemy  vessel  can  be  sunk,  not  a  neutral. 

2.  That  the  Prize  Court  had  infringed  the  law  in  not  deciding  the 
question  as  to  the  regularity  of  the  sinking  of  the  Knight  Commander. 

3.  That  the  conditions  which,  according  to  law,  are  necessary  to 
justify  the  sinking  of  a  vessel  did  not  exist  at  the  time  when  the  Knight 
Com.mander  was  sunk.     • 

4.  That  the  accusation  made  by  the  Prize  Court  against  Captain 
Durant  of  concealing  the  destination  of  the  cargo,  and  concealing  and 
destroying  the  manifests  and  bills  of  lading,  is  not  justified. 

In  the  opinion  of  the  Supreme  Prize  Court,  none  of  the  foregoing 
objections,  even  if  correct,  would  entail  the  reversal  of  the  decision 
of  the  Prize  Court,  because,  as  stated  above,  the  condemnation  of  the 
vessel  depends  entirely  on  the  existence  of  the  conditions  referred  to 
in  article  11  (1)  of  the  Regulations  relating  to  Naval  Prizes,^  and  the 
circumstances  referred  to  in  the  objections  of  the  appellant  are  imma- 
terial from  the  point  of  view  of  deciding  the  question  whether  the  ves- 
sel was  liable  to  condemnation. 

But,  apart  from  this,  the  Supreme  Prize  Court  finds  that  all  the  ob- 
jections raised  are  groundless. 

First  of  all,  the  question  of  the  regularity  of  sinking  a  vessel,  ac- 
cording to  article  58  of  the  Regulations  relating  to  Prizes,'  is  not 

9  Russian  &  Japanese  Prize  Cases,  vol.  I,  App.  A. 


796  RIGHTS   AND   DUTIES   OP  NATIONS   IN   TIME   OF   WAR         (Part  3 

one  for  the  consideration  of  Prize  Courts,  but,  according  to  article  21 
of  the  Regulations  relating  to  Naval  Prizes,  and  of  article  299  of 
the  Naval  Code  of  Punishments,  is  one  for  the  consideration  of  the 
naval  authorities  and  of  a  criminal  court,  because  the  sinking  of  a 
vessel  is  permitted  on  the  personal  responsibility  of  the  naval  com- 
mander, and  the  question,  therefore,  whether  the  extraordinary  cir- 
cumstances which  incited  him  to  sink  the  vessel  were  sufficient  or  not 
is  a  matter  only  for  the  superior  officer  of  the  person  who  had  given  the 
order  to  sink  to  decide,  and  not  for  a  prize  court. 

Furthermore,  according  to  the  same  article  21  of  the  Regulations 
relating  to  Prizes,^''  and  article  40  of  the  Instructions  on  procedure  in 
stopping  vessels,**  sanctioned  under  article  26  of  the  Regulations  re- 
lating to  Prizes,  the  danger  of  the  vessel  passing  into  the  hands  of 
the  enemy  and  the  distance  of  ports  to  which  she  could  have  been 
taken  are  grounds  which  justify  the  sinking  of  a  vessel.  The  existence 
of  these  circumstances  in  the  case  of  the  Knight  Commander  is  proved 
by  the  protocol  drawn  up  on  the  11th  July,  1904.  The  argument  of 
the  appellant  that  a  neutral  vessel  cannot  legally  be  sunk  is  proved  by 
articles  11  and  21  to  be  incorrect.  Under  article  11  merchant  vessels  of 
neutral  nationality  may  be  subject  to  capture;  under  article  21,  every 
captured  vessel  may  be  sunk  in  extraordinary  circumstances.  The  only 
reply,  therefore,  that  can  be  given  consistently  with  the  existing  Russian 
law  to  the  objections  raised  by  the  appellant  to  the  decision  of  the  Prize 
Court  must  be  in  the  negative. 

It  is  at  the  same  time  impossible  to  agree  with  the  assertions  of  the 
attorney  of  the  shipowner  that  the  destruction  of  a  neutral  vessel  which 
is  admissible  by  our  laws  is  contrary  to  the  principles  of  international 
law,  even  if  the  ambiguous  denomination  "neutral  vessel"  be  under- 
stood as  meaning  neutral  by  nationality  only,  and  not  neutral  according 
to  her  action.  In  support  of  his  view,  the  •attorney  quoted  a  whole 
series  of  citations  from  writers  who  are  opposed  to  the  admissibility  of 
the  destruction  of  a  neutral  vessel,  but  the  opinions  of  writers  or  scien- 
tists, although  very  authoritative,  do  not  constitute  binding  rules  of 
international  law.  It  is  no  doubt  very  useful  to  listen  to  these  opin- 
ions, but  one  is  not  bound  to  conform  to  them.  Even  if  no  opinions 
contrary  to  those  alluded  to  are  cited,  it  is  not  superfluous  to  quote 
from  an  article  by  the  well-known  English  jurist,  Professor  Holland 
(1905),*^  who  expresses  doubt  whether  the  sinking  of  a  neutral  vessel 
is  contrary  to  the  principles  of  international  law,  especially  in  view  of 
the  circumstances  that  the  laws  not  only  of  Russia,  but  of  France,  the 
United  States,  and  Japan,*^  permit  it. 

How-ever,  apart  from  formal  references  to  various  authorities,  it  is 
necessary  to  investigate  on  its  merits  the  question  whether  the  sinking 
of  a  neutral  vessel  is  admissible.    All  agree  that  the  principles  of  in- 

10  Russian  &  Japanese  Prize  Cases,  vol.  I,  App.  A. 

11  Id.,  App.  B.  12  Id.,  vol.  I,  App.  I.  13  Id.,  vol.  II,  App.  A. 


Ch.  12)  DESTRUCTION   OF   PRIZE  797 

ternational  law  as  to  naval  prizes  must  be  based  on  a  compromise  be- 
tween the  interests  of  belligerents  and  of  neutrals,  a  compromise  aris- 
ing from  the  necessity  of  protecting  the  rights  of  both  parties.  From 
this  point  of  view  the  destruction  of  a  captured  vessel  of  neutral 
nationality  ought  not  to  be  permitted,  except  in  cases  of  special  neces- 
sity in  the  interests  of  the  belligerents.  Such  cases  may,  of  course,  oc- 
cur more  seldom  with  countries  which  have  the  good  fortune  to  pos- 
sess ports  everywhere,  than  with  a  country  in  a  less  favourable  posi- 
tion. But  the  absolute  prohibition  of  the  destruction  of  a  neutral  ves- 
sel, notwithstanding  the  most  glaring  violation  of  neutrality  on  her 
part,  would  be  equivalent  to  completely  depriving  the  belligerent  un- 
der certain  circumstances  of  the  right  to  prevent  the  delivery  to  the 
enemy  even  of  ammunition,  which  cannot  be  right,  while  as  compared 
with  the  other  belligerent,  more  favourably  circumstanced,  it  would 
be  quite  unjust. 

From  the  point  of  view  of  the  principles  of  international  law,  based 
on  the  aforesaid  compromise  between  the  interests  of  belligerents  and 
those  of  neutrals,  it  is  not  clear  why  some  writers  admit  the  right  to 
sink  an  enemy  vessel  with  a  cargo  owned  by  a  neutral,  and  even  to 
refuse  to  pay  compensation  for  such  cargo,  but  do  not  admit  the  right 
to  sink  a  neutral  vessel  with  contraband  of  war  belonging  to  or  in- 
tended for  the  enemy.  In  reality  the  gist  of  the  whole  question  lies  in 
this,  that  the  interests  of  the  owners  ought  not  to  suffer  from  that  de- 
struction of  captured  property  which  is  sometimes  indispensable  in  the 
interests  of  the  belligerents.  Under  our  existing  prize  law,  however, 
which  strictly  protects  the  legal  interests  of  owners,  those  interests 
could  hardly  have  suffered,  inasmuch  as  if  the  captured  property  had 
been  condemned  to  the  state,  it  would  not  have  been  the  interests  of 
the  former  owners  that  would  have  suft'ered,  but  those  of  the  state  de- 
stroying the  cargo,  which  not  only  would  have  been  deprived  of  the 
benefit  of  its  possession,  but  would  have  been  obliged  to  give  prize 
money  for  the  captured  prize  (article  44)  ;  **  if,  on  the  contrary,  the 
property  destroyed  were  held  to  be  entitled  to  be  released,  the  owners 
would  have  the  right  to  demand  compensation  from  the  state  (articles 
28-30  and  32). 

The  argument  of  the  attorney  of  the  shipowner  that  the  right  ac- 
corded to  a  naval  commander  to  destroy  a  vessel  is  equivalent  to  giving 
him  the  right  of  deciding  a  case  in  place  of  a  prize  court,  is  nothing 
more  than  a  misunderstanding,  as,  according  to  the  interpretation  of 
the  laws  relating  to  prize,  the  order  of  a  naval  commander  for  the  de- 
struction of  a  captured  vessel  is  an  unavoidable  incident  in  the  case, 
and  in  no  way  decides  the  question  as  to  the  right  to  destroy  such 
property  before  it  is  brought  before  the  Prize  Court  for  adjudication. 
On  the  contrary,  articles  21  and  74  demand  the  subsequent  decision  of 
a  prize  court  as  to  condemnation  or  release;   but  when  once  a  prize 

1*  Russian  &  Japanese  Prize  Cases,  vol.  I,  App.  A. 


798  RIGHTS  AND  DUTIES  OF  NATIONS   IN  TIME  OF   WAR         (Part  3 

court  has  decided  in  favour  of  condemnation,  the  right  to  the  captured 
property  must  necessarily  be  considered  as  having  passed  to  the  state 
from,  the  moment  of  capture,  and  not  from  the  date  of  the  order  of  the 
court  respecting  its  condemnation,  in  the  same  way  that  the  right  of 
inheritance  is  reckoned  as  belonging  to  the  heirs  from  the  moment  of 
the  inheritance,  and  not  from  the  date  of  the  order  of  the  court  recog- 
nising them  as  heirs  to  the  same.  The  task  of  a  prize  court  is  to  de- 
termine whether  a  capture  is  legal  or  illegal,  or,  in  other  words,  to  con- 
firm the  right  of  capture,  or  refuse  such  confirmation.     *     *     * 

On  all  the  foregoing  considerations,  the  Supreme  Prize  Court  de- 
cides— 

(1)  To  confirm  the  judgment  of  the  Vladivostock  Prize  Court  and 
to  dismiss  the  appeal  of  the  attorney  of  the  owners  of  the  steamer 
Knight  Commander  and  of  the  cargo. 

(2)  To  dismiss  the  petitions  of  the  attorneys  of  the  owners  of  the 
cargo  for  a  declaration  that  the  goods  referred  to  in  these  petitions  are 
not  liable  to  condemnation,  and  for  compensation.     *     *     * 


THE  GLITRA. 

(Supreme  Prize  Court  of  Berlin,  1915.    Entscheidungen  des  Oberprisengerichts 

in  Berlin  [1918]  34.) 

In  the  prize  matter  concerning  the  English  steamer  Glitra  with  Leith 
as  her  home  port,  the  Imperial  Supreme  Prize  Court  of  Berlin,  at  its 
sitting  of  July  30,  1915,  has  found  as  follows: 

The  appeals  lodged  by  the  plaintiffs  under  Nos.  9  to  12  of  the  de- 
cision are  rejected  as  inadmissible;  the  appeals  of  the  remaining  plain- 
tiffs are  denied  as  unfounded. 

The  costs  of  the  proceedings  in  appeal  are  to  be  borne  by  the  plain- 
tiffs. 

Reasons. 

On  October.  20,  1914,  the  steamer  Glitra  belonging  to  the  firm  of 
Salversen  &  Co.  of  Leith,  with  a  cargo  of  sundiy  merchandise  on  the 
way  from  Leith  to  Stavanger,  was  seized  by  a  submarine,  and  after 
the  crew  had  left  the  ship,  she  was  sunk  together  with  her  cargo. 

In  answer  to  the  summons  of  the  Prize  Court  issued  in  accordance 
with  section  26  of  the  Prize  Court  Regulations,  the  thirteen  parties 
interested  in  the  cargo  submitted  claims  for  compensation  of  damages 
due  to  the  destruction  of  their  merchandise.  The  plaintiffs  are  the 
owners  of  Norwegian  houses ;  the  plaintiff  figuring  in  claim  No.  2  alone 
is  a  Danish  insurance  company  which  presents  the  rights  of  its  Nor- 
wegian underwriter.  The  Prize  Court  has  found  that  the  ship  which 
was  sunk  was  subject  to  seizure  and  has  denied  the  claims. 

The  appeal  lodged  against  this  decision  is  not  well  founded.  The 
Prize  Court  has,  in  the  first  place,  impartially  established  that  the 
Glitra  was  an  English  ship,  and  that,  given  the  circumstances  of  the 


Ch.  12)  DESTRUCTION   OF   PRIZE  799 

case,  the  destruction  of  the  ship  was  necessary,  in  order  to  insure  her 
capture.  The  Prize  Court  did  not  concern  itself  with  the  question  as 
to  whether  or  not  the  merchandise,  on  account  of  which  claims  for 
compensation  were  submitted,  was  neutral  merchandise,  because  it  came 
to  the  conclusion  that  if  such  had  been  the  case,  there  would  be  no 
cause  for  a  claim  to  compensation  for  damages.  In  justification  of  this 
conclusion  it  is  stated  that  the  question  thus  brought  up  has  not  been 
decided  either  in  the  Prize  Regulations  or  in  any  international  treaties, 
and,  especially,  it  has  not  been  decided  in  the  London  Declaration,  as 
can  be  ascertained  from  a  reading  of  it  and  of  the  history  of  its  gene- 
sis. It  is  said  that  opinions  had  been  equally  divided.  It  is  stated 
that  the  French  memorandum  declares  that  neutral  cargoes  were  not 
entitled  to  claims  for  damages  because,  when  the  captor,  for  military 
reasons,  holds  the  destruction  of  the  prize  to  be  necessary,  such  situa- 
tion presents  a  military  measure ;  while,  on  the  other  hand,  the  English 
memorandum  admits  the  claim,  provided  the  case  does  not  involve  con- 
traband, because  a  permissible  cargo  on  board  of  an  enemy  ship  is 
not  subject  to  seizure. 

As  regards  the  preliminary  work  of  the  conversations,  the  leading 
question :  In  vievv^  of  the  principle  that  neutral  merchandise  under  en- 
emy flag  is  not  subject  to  seizure,  will  the  owner  of  the  merchandise,  in 
case  of  the  destruction  of  the  ship,  have  to  be  indemnified,  or  is,  in 
such  case,  the  destruction  of  a  ship  a  military  action  which  does  not 
obligate  the  belligerent  to  make  indemnification? — had  been  discussed 
without  arriving  at  an  understanding.  The  Prize  Court  observes 
that  in  the  course  of  these  negotiations  the  matter  of  the  admissibility 
of  the  destruction  of  neutral  ships,  subject  to  seizure,  had  been  dealt 
with  mainly;  Confining  herself  to  this  particular  matter,  Germany  had 
expressed  herself  in  favor  of  compensation  for  neutral  goods  not  sub- 
ject to  seizure.  Japan  alone  had  made  a  declaration  with  regard  to  the 
matter  of  neutral  merchandise  on  an  enemy  ship  which  is  being  de- 
stroyed, namely,  in  the  sense  of  England.  Nothing  has  been  shown  to 
indicate  that,  as  matters  stand,  Germany  had  meant  to  establish  in  the 
Prize  Regulations  a  principle  to  the  effect  that  when  an  enemy  ship 
was  destroyed,  the  neutral  cargo  was  entitled  to  a  claim  for  indemnifi- 
cation. The  Prize  Court  held  that  at  most  an  argument  therefor  could 
be  deduced  from  article  1 14  of  the  Prize  Regulations  to  the  extent  that 
it  is  here  presupposed  that  in  destroying  a  ship,  compensation  must  be 
made  for  the  destruction,  at  the  same  time,  of  that  part  of  the  cargo  not 
subject  to  seizure.  The  argument  is,  however,  not  sufficiently  conclu- 
sive. It  may  readily  be  assumed  that  article  114  refers  only  to  the  de- 
struction of  neutral  ships,  in  view  of  the  fact  that  the  preceding  and  the 
following  provision  of  the  Prize  Regulations  deal  only  with  such  case. 

This  view  must,  in  effect,  be  approved.  The  question  to  be  settled 
is  as  to  whether  or  not  in  case  an  enemy  ship  is  lawfully  destroyed, 
compensation  must  be  made  for  neutral  merchandise  on  board  such 
ship  which  is  destroyed  at  the  same  time.     It  is  clear  that  neither  in 


800  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

the  Prize  Regulations  nor  in  the  London  Declaration,  an  express  pre- 
scription in  regard  to  this  matter  is  met  with.  Nor  has  the  Prize  Reg- 
ulation indirectly  provided  for  the  settlement  of  that  matter.  The 
plaintiff  believes  that  such  a  provision  is  found  in  No.  114  of  the  Prize 
Regulations.  The  judge  of  first  instance  has  justly  denied  this,  al- 
though we  can  not  absolutely  agree  with  him  in  all  the  reasons  he 
gives  regarding  this  matter.  In  the  article  referred  to  the  commander  is 
directed,  before  proceeding  with  the  destruction  of  a  ship,  to  see  if 
the  loss  thereby  accruing  to  the  enemy  is  equivalent  to  the  compensa- 
tion for  damages  which  must  be  paid  for  that  part  of  the  cargo  sub- 
ject to  seizure  and  which  is  destroyed  at  the  same  time.  In  connection 
with  this  reference  is  made,  parenthetically,  among  other  things,  to 
article  18,  which  deals  with  the  seizure  of  enemy  ships  and  states  which 
part  of  the  cargo  is,  at  the  same  time,  subject  to  seizure.  This,  in  ef- 
fect, looks  as  though  the  author  of  the  Prize  Regulations  had,  when 
dealing  with  article  114,  thought  that  in  the  case  of  the  destruction 
of  an  enemy  ship  compensation  must  be  made  for  the  part  of  the  cargo 
not  subj  ect  to  seizure ;  it  must  also  be  admitted  that  the  said  reference 
bars  the  course  taken  by  the  first  instance  when  it  assumes  that 
Article  114,  even  as  the  preceding  and  the  following  provision,  dealt 
only  with  the  destruction  of  neutral  ships.  In  spite  of  that,  however, 
the  provision  can  not  be  given  such  scope  of  interpretation  as  the  plain- 
tiffs meant  to  lend  to  it.  If  it  is  so  understood,  it  would  materially 
come  into  a  certain  contradiction  with  that  which  the  Prize  Regulation 
prescribes  in  the  immediately  following  article.  As  can  be  clearly 
seen  from  this,  the  Prize  Regulation  does  not  hold  that,  for  the  de- 
struction of  merchandise  not  subject  to  seizure,  compensation  must  be 
made  in  every  case.  In  the  case  of  the  lawful  destruction  of  a  neu- 
tral ship,  compensation  is  prescribed  for  the  merchandise  destroyed 
along  with  the  ship  but  not  subject  to  seizure,  in  so  far  as  this  concerns 
neutral  merchandise,  but  not  in  regard  to  enemy  merchandise  which, 
although  under  the  protection  of  the  neutral  flag,  is  likewise  not  sub- 
ject to  seizure. 

We  must,  furthermore,  bear  in  mind  that  there  are  also  enemy  ships 
that  are  not  subject  to  seizure,  and,  therefore,  not  subject  to  destruc- 
tion, so  that,  even  although  at  some  time — possibly  "by  reason  of  a 
pardonable  error — the  destruction  took  place,  it  may  yet  be  asked 
whether  or  not  a  distinction  should  be  drawn  in  regard  to  compensa- 
tion for  values  destroyed  along  with  the  ship,  between  neutral  and  en- 
emy merchandise,  and  for  this  reason  it  could  seem  advisable  to  di- 
rect the  commanders  of  vessels,  for  such  eventualities,  to  make  the 
inquiry  incumbent  upon  them  according  to  article  114.  But  it  is 
above  all  important  to  remember  that  article  114  is  not  sedes  materiae 
and  that,  therefore,  even  assuming  that  the  author  of  the  law  thought 
that  in  case  of  the  lawful  destruction  of  an  enemy  ship  claims  for 
compensation  could  be  presented  in  behalf  of  the  merchandise  of  neu- 
trals, it  would  be  wrong  to  find  therein  a  positive  decision  of  this  at 


Ch.  12)  DESTRUCTION   OF   PRIZE  801 

least  doubtful,  and  at  all  events  very  controverted  question  which  was 
left  open,  although  discussed  at  the  London  Conference. 

As  Wehberg  points  out  in  Oesterreichische  Zeitschrift  fiir  offentlich- 
es  Recht,  vol.  II,  3  p.  282,  Heilfron,  Jur.  Wochenschrift,  1915,  p.  486, 
goes  too  far  when  he  attributes  to  the  Prize  Regulations  only  the  im- 
portance of  an  order  promulgated  by  the  emperor  to  the  naval  author- 
ities. The  Prize  Regulations  contain,  to  a  large  extent,  positive  law. 
But,  with  regard  to  the  provision  now  under  consideration,  Heilfron's 
characterization  fits  perfectly.  This  article  114  is,  in  effect,  but  an  or- 
der to  the  commanders  of  ships.  Through  it  only  the  commander-in- 
chief  in  war  speaks,  and  not  the  legislator.  It  is  not  its  purpose  to  es- 
tablish material  right  and  it  does  not  do  so. 

If,  therefore,  we  are  compelled  to  consider  the  most  general  prin- 
ciples of  law  in  connection  with  the  rules  of  the  general  law  of  warfare, 
it  is  found  with  absolute  certainty  that  neutrals  are  not  entitled  to 
present  a  claim  in  case  the  destruction  of  the  prize  was,  in  the  cir- 
cumstances, justified.  See  article  112  of  the  Prize  Regulations.  The 
taking  to  port  and  the  seizure  of  tlie  enemy  ship  constitute  a  lawful  war 
measure  against  the  foreign  state  and  stand  approved  in  international 
law.  Claims  for  damages,  either  on  the  part  of  the  nationals  of  enemy 
states  or  on  the  part  of  neutrals  cannot  in  all  such  cases  be  upheld.  To 
be  sure,  according  to  article  3  of  the  Paris  Declaration,  neutral  mer- 
chandise (that  is  to  say,  merchandise  that  is  not  contraband)  may  not 
be  seized  on  board  an  enemy  ship.  It  is,  therefore,  not  subject  to  sei- 
zure in  case  the  prize  is  taken  to  port.  But  it  can  be  presumed  that 
the  parties  interested  in  the  cargo  are  entitled  to  present  claims  for 
compensation  of  damages  that  have  arisen  as  a  result  of  the  ship's 
being  taken  to  port,  as  the  result  of  an  interruption  in  the  trip  of  the 
ship  or  the  taking  of  the  ship  to  another  but  the  point  of  destination. 
Nor  is  it  legitimate  to  present  a  claim  for  compensation  in  case  the  mer- 
chandise itself,  as  a  result  of  the  seizure  of  the  ship,  has  sustained 
damage,  nor  for  instance,  if  on  the  further  journey  of  the  prize  it  is 
lost  as  a  result  of  an  accident  at  sea.  Since  the  seizure  is  a  lawful 
act,  there  is  no  legal  principle  on  which  a  claim  may  be  presented  for 
the  damage  which  the  neutral  has  sustained  rather  because  he  entrusted 
his  merchandise  to  a  ship  exposed  to  danger.  Therefore,  the  war  meas- 
ure being  lawful,  there  is  no  legal  ground  on  which  a  claim  for  damages 
may  be  based  in  case  the  merchandise  is  lost  because  the  war  opera- 
tion directed  against  the  ship  was,  according  to  the  circumstances,  nec- 
essarily directed  against  her  cargo  as  well. 

The  legal  question  that  is  important  in  this  matter  may  arise  even 
in  the  course  of  warfare  on  land.  Conditions  may  be  such,  and  very 
frequently  will  be  found  to  be  such,  that,  for  instance,  while  a  fortified 
or  defended  place  is  being  bombarded,  the  property  of  neutrals  is  dam- 
aged. But  even  in  warfare  on  land  where  private  property  is  protected 
to  a  greater  extent  than  in  naval  warfare,  there  is  no  obligation,  in  such 
Scott  Int.Law— 51 


802  RIGHTS  AND  DUTIES   OF  NATIONS  IN   TIME   OF   WAR         (Part  3 

cases,  on  the  part  of  the  belHgerent  state,  to  make  compensation  even  to 
neutrals.  See  article  3  of  the  Fourth  Convention  of  the  Second  Hague 
Conference.  Compare  Gefifcken  in  Heffter,  Volkerrecht  (8th  Ed.)  § 
150,  note  1  (incorrect,  at  least  inadequate,  in  that  text  of  Heffter)  ;  Cal- 
vo,  Droit  International  (4th  Ed.)  vol.  IV,  §§  20  to  50  to  22  to  52; 
Bonfils,  Droits  des  gens  (1908)  §  1217;  Bordwell,  Law  of  War  (1908) 
p.  212. 

But  as  regards,  in  particular,  the  conditions  of  naval  warfare,  there 
is  no  protection  afforded  to  neutral  merchandise  by  article  3  of  the 
Paris  Declaration,  against  the  acts  of  the  belligerent  party  made  neces- 
sary by  the  circumstances  of  the  war.  Article  3,  referred  to  above,  is 
intended  to  afford  protection  against  the  prize  law  to  which,  up  to  the 
time  of  the  Paris  Declaration,  neutral  merchandise  in  the  enemy  ship 
was  exposed.  Whatever  the  circumstances  of  the  war  demand,  must 
be  permitted  to  take  place  without  regard  to  the  fact  that  neutral  mer- 
chandise is  on  board  the  ship.  Although,  according  to  Article  2  of 
the  Paris  Declaration,  the  neutral  flag  protects  enemy  merchandise,  this 
does  not  mean  that  vice  versa  the  enemy  ship  is  to  be  protected  through 
neutral  merchandise,  protected  in  the  first  place,  of  course,  only  against 
destruction,  but  at  the  same  time,  and  in  innumerable  cases,  against  any 
exercise  of  the  prize  law. 

As  far  as  can  be  ascertained,  no  one  has  disputed  this  even  down  to 
the  most  recent  times.  Compare  Resolutions  of  the  French  Conseil 
d'fitat,  May  21,  1872,  in  Dalloz,  Jurisprudence  generale  (1871)  III,  No. 
94,  in  the  prize  case  Ludwig  and  Vorwarts ;  Dupuis,  Le  Droit  de 
la  guerre  maritime  (1899)  p.  334;  De  Boeck,  De  la  propriete  ennemie 
privee  sous  pavilion  ennemi  (1882)  §  146;  Bordwell,  Law  of  War 
(1908)  p.  226;  Wheaton,  International  Law  (4th  Ed.)  p.  507,  §  359e; 
Oppenheim,  International  Law  (2d  Ed.)  Vol.  II,  p.  201  ff. ;  Calvo,  Droit 
International  (4th  Ed.)  Vol.  V.  §§  30,  33,  30,  34;  Hall,  International 
Law  (5th  Ed.)  p.  717  ff. 

The  assertion  of  the  plaintiffs  that  the  decision  of  the  French  Prize 
Court  in  the  matter  of  The  Ludwig  and  The  Vorwarts  had  been  al- 
most generally  disputed  in  the  literature,  has,  apart  from  the  quotations 
adduced  from  the  most  recent  sources  (Wehberg  and  Schramm ;  the 
quotation  from  Hall,  p.  187 — see  above — is  unintelligible),  not  been 
supported  by  documents,  and  must,  therefore,  be  regarded  as  incorrect. 
Only  in  the  most  recent  times,  especially  in  Germany,  there  has  arisen 
a  conception  of  the  theory  which  quite  generally  in  the  case  of  the  de- 
struction of  merchandise  not  subject  to  seizure — merely  or  only  in  so 
far  as  nevitral  merchandise  is  concerned — demands  the  obligation  to 
make  compensation  as  a  basic  principle.  Compare  Schramm,  Prisen- 
recht  (1913)  p.  338  ff.;  Wehberg,  Seekriegsrecht  (1915)  p.  297,  notes 
3  and  4 ;  and  Oesterr.  Zeitschrift  f iir  ofl'entliches  Recht.,  cited  else- 
where;  Rehm,  Deutsche  Juristenzeitung  (1915)  p.  454. 

At  the  same  time  the  general  obligation  for  making  compensation 

Scott  Int.Law 


Ch.  12)  DESTRUCTION   OF  PRIvIli  803 

is  felt  preconceivedly  as  being  self-evident.  The  foundation  is  lacking 
and  where  it  is  subsequently  sovight  to  establish  one,  it  does  not  appear 
convincing  when  compared  with  the  explanations  given  above.  Nor  can 
the  logic  of  the  latter  expositions  be  attacked  by  pointing  out  that  war- 
fare on  land  remains  locally  circumscribed  to  the  national  territory  of 
the  belligerents,  while  the  ship  sails  the  open  seas.  The  fact  that  an  en- 
emy ship  on  the  high  seas  is  subject  to  seizure,  and,  if  necessary,  to  at- 
tack, rests  on  the  condition  of  international  law  as  it  exists,  a  condition 
which  is  perhaps  to  be  deplored,  but  which  is,  nevertheless,  a  condition 
of  fact.  In  all  other  respects,  as  soon  as  the  ship  is  on  the  high  seas, 
she  is  a  part  of  the  territory  of  her  state  on  board  of  which  the  neutral, 
by  a  voluntary  act  on  his  part,  has  placed  his  merchandise,  because  he 
freighted  it  on  a  vessel  of  a  belligerent  country  for  the  purpose  of  trans- 
portation across  the  sea. 

In  conclusion,  it  should  be  stated  that  it  is  not  a  defect  of  procedure 
when,  as  is  stated  in  the  appeal,  the  Prize  Court  has  refrained  from 
deciding  as  to  whether  or  not  the  merchandise,  to  which  the  claims  re- 
fer, was  subject  to  seizure.  It  is  the  object  of  section  1  of  the  Prize 
Court  Regulations  clearly  to  define  the  prize  jurisdiction,  and  if  in 
section  2  the  extent  of  the  decision  is  prescribed,  this  means  that  there- 
by a  limit  has  been  set  to  which  the  courts  must  confine  themselves; 
but  nowhere  is  it  prescribed  that  in  any  particular  case  a  decision  must 
be  handed  down  with  regard  to  the  said  questions  even  when  the 
settlement  of  the  claims  presented  does  not  depend  thereon. 

Notwithstanding  the  summons  issued  the  plaintififs  under  9  and  12 
have  not  paid  the  amount  necessary  to  cover  expenses.  Their  legal 
remedy  was,  therefore,  not  to  be  dealt  with.^^ 

12  The  Indian  Prince,  Entst-lieirlungen  des  Oberprisengerichts  in  Berlin, 
191S,  87  (191(i),  was  an  English  vessel  captvu'ed  September  4,  1914,  and  sunk 
on  it3  way  from  Santos  by  way  of  Trinidad,  to  ports  of  the  United  States. 
Part  of  the  cargo  belonged  to  citizens  of  the  United  States. 

In  the  decision  of  the  case,  the  Supreme  Prize  Court  of  Berlin  considered 
at  great  length  whether,  according  to  article  12  of  the  Treaty  of  1785,  and 
article  13  of  the  Treaty  of  1799,  which  had  been  revived  by  article  12  of  the 
Treaty  of  1828,  between  Prussia  and  the  United  States,  compensation  should 
be  made  to  the  American  owners  for  the  destruction  of  their  property. 

The  court  decided  that  the  destruction  of  the  property  did  not  render  Ger- 
many liable,  on  the  ground  that  the  neutral  cargo  shared  the  fate  of  the  vessel 
which  had  been  legally  sunk. 

The  Arena,  Entscheidungen  des  Oberprisengerichts  in  Berlin,  1918,  .343 
(1917),  was  a  Norwegian,  and  therefore  a  neutral,  ship,  captured  by  a  German 
submarine  on  April  2,  1916,  as  carx*ying  contraband  of  war,  and  sunk  because 
its  proximity  to  the  enemy  forces  at  the  time  of  capture  made  recapture 
possible. 

The  Supreme  Prize  Court  of  Berlin  held,  as  to  part  of  the  cargo,  consisting 
of  non-conti-aband  paper,  that  title  had  not  passed  to  the  English,  and  that  it 
was  neutral. 

Damages  were  allowed. 


804  BIGHTS  AND  DUTIES  OF  NATIONS  IN   TIME  OF  WAE         (Part  3 

CHAPTER  XIII 
RETALIATION 


THE  LEONORA. 

(Privy  Council,  1919.    L.  R.  [1919]  A.  C.  974.) 

Appeals  from  decrees  of  the  Admiralty  Division  (in  Prize)  dated 
April  18,  1918.1     *     *     * 

The  judgment  of  their  Lordships  was  delivered  by 

Lord  Sumner.^  The  Leonora,  a  Dutch  steamship  bound  from  Rot- 
terdam to  Stockholm  direct,  was  stopped  on  August  16,  1917,  by  His 
Majesty's  torpedo  boat  F77,  outside  territorial  waters,  and  shortly  after 
passing  Ymuiden.  She  was  taken  into  Harwich.  Her  cargo,  which  was 
neutral-owned,  consisted  of  coal,  the  produce  of  collieries  in  Belgium. 
It  was  not  intended  that  she  should  call  at  any  British  or  Allied  port, 
nor  had  any  application  been  made  on  her  behalf  for  the  appointment 
of  a  British  port  for  the  examination  of  her  cargo.  Both  ship  and 
cargo  were  condemned,  pursuant  to  the  Order  in  Council,  dated  Febru- 
ary 16,  1917,  and  both  the  shipowners  and  the  cargo  owners  ap- 
peal.    *     *     * 

The  appellants'  main  case  was  that  the  Order  in  Council  was  invalid, 
principally  on  the  ground  that  it  pressed  so  hardly  on  neutral  merchants 
and  interfered  so  much  with  their  rights  that,  as  against  them,  it  could 
not  be  held  to  fall  within  such  right  of  reprisal  as  a  belligerent  enjoys 
under  the  law  of  nations.     *     *     * 

Upon  the  validity  of  the  Order  in  Council  itself  the  appellants  ad- 
vanced a  two-fold  argument.  The  major  proposition  was  that  the  Or- 
der purported  to  create  an  offence,  namely,  failure  to  call  at  a  British 
or  Allied  port,  which  is  unknown  to  the  law  of  nations,  and  to  impose 
punishment  upon  neutrals  for  committing  it;  in  both  respects  it  was 
said  that  the  order  is  incompetent.  The  minor  proposition  was  that 
the  belligerent's  right  to  take  measures  of  retaliation,  such  as  it  is, 
must  be  limited,  as  against  neutrals,  by  the  condition  that  the  exercise 
of  that  right  must  not  inflict  on  neutrals  an  undue  or  disproportionate 
degree  of  inconvenience.  In  the  present  case  various  circumstances  of 
inconvenience  were  relied  on,  notably  the  perils  of  crossing  the  North 
Sea  to  a  British  port  of  call  and  the  fact  that  no  particular  port  of 
call  in  Great  Britain  had  been  appointed  for  the  vessel  to  proceed  to. 

1  [1918]  p.  182. 

2  Parts  of  the  opinion  are  omitted. 


Ch.  13)  RETALIATION  805 

In  The  Stigstad  '  their  Lordships  had  occasion  to  consider  and  to 
decide  some  at  least  of  the  principles  upon  which  the  exercise  of  the 
right  of  retaliation  rests,  and  by  those  principles  they  are  bound.  In 
the  present  case,  nevertheless,  they  have  had  the  advantage  of  coun- 
sel's full  re-examination  of  the  whole  subject,  and  full  citation  of  the 
authorities,  and  of  a  judgment  by  the  President  in  the  Prize  Court, 
which  is  itself  a  monument  of  research.  The  case  furthermore  has 
been  presented  under  circumstances  as  favourable  to  neutrals  as  pos- 
sible, for  the  difference  in  the  stringency  of  the  two  Orders  in  Coun- 
cil, that  of  1915  and  that  of  1917,  is  marked,  since  in  the  case  of  the 
later  order  the  consequences  of  disregarding  it  have  been  increased 
in  gravity  and  the  burden  imposed  on  neutrals  has  become  more 
weighty.  If  policy  or  sympathy  can  be  invoked  in  any  case  they  could 
be  and  were  invoked  here. 

Their  Lordships,  however,  after  a  careful  review  of  their  opinion  in 
The  Stigstad,  think  that  they  have  neither  ground  to  modify,  still  less 
to  doubt  that  opinion,  even  if  it  were  open  to  them  to  do  so,  nor  is 
there  any  occasion  in  the  present  case  to  embark  on  a  general  restate- 
ment of  the  doctrine  or  a  minute  re-examination  of  the  authorities. 

There  are  certain  rights,  which  a  belligerent  enjoys  by  the  law  of 
nations  in  virtue  of  belligerency,  which  may  be  enforced  even  against 
neutral  subjects  and  to  the  prejudice  of  their  perfect  freedom  of  ac- 
tion, and  this  because  without  those  rights  maritime  war  would  be  frus- 
trated and  the  appeal  to  the  arbitrament  of  arms  be  made  of  none  effect. 
Such,  for  example,  are  the  rights  of  visit  and  search,  the  right  of 
blockade  and  the  right  of  preventing  traffic  in  contraband  of  war.  In 
some  cases  a  part  of  the  mode  in  which  the  right  is  exercised  consists 
of  some  solemn  act  of  proclamation  on  the  part  of  the  belligerent,  by 
which  notice  is  given  to  all  the  world  of  the  enforcement  of  these 
rights  and  of  the  lunits  set  to  their  exercise.  Such  is  the  proclamation 
of  a  blockade  and  the  notification  of  a  list  of  contraband.  In  these 
.  cases  the  belligerent  sovereign  does  not  create  a  new  offence  motu  pro- 
prio;  he  does  not,  so  to  speak,  legislate  or  create  a  new  rule' of  law; 
he  elects  to  exercise  his  legal  rights  and  puts  them  into  execution  in 
accordance  with  the  prescriptions  of  the  existing  law.  Nor  again  in 
such  cases  does  the  retaliating  belligerent  invest  a  court  of  prize  with 
a  new  jurisdiction  or  make  the  court  his  mandatory  to  punish  a  new 
offence.  The  office  of  a  court  of  prize  is'  to  provide  a  formal  and 
regular  sanction  for  the  law  of  nations  applicable  to  maritime  warfare, 
both  between  belligerent  and  belligerent  and  between  belligerent  and 
neutral.    Whether  the  law  in  question  is  brought  into  operation  by  the 

8  In  the  case  of  The  Stigrstad,  L.  R.,  [1919]  App.  Cas.,  270  (1018),  the  retalia- 
tory order  of  March  11,  1915,  was  involved,  and  in  the  principal  case  that  of 
February  16,  1917. 

For  the  texts  of  these  two  orders,  claiming  the  right  on  the  part  of  a  bellig- 
erent to  retaliate  upon  its  enemy,  even  although  the  rights  of  neutrals  are 
affected,  see  Appendix,  pp.  1175.  1177. 


806  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

act  of  both  belligerents  in  resorting  to  war,  as  is  the  case  with  the 
rules  of  international  law  as  to  hostiHties  in  general,  or  by  the  asser- 
tion of  a  particular  right  arising  out  of  a  particular  provocation  in 
the  course  of  the  war  on  the  part  of  one  of  them,  it  is  equally  the 
duty  of  a  court  of  prize,  by  virtue  of  its  general  jurisdiction  as  such, 
to  provide  for  the  regular  enforcement  of  that  right,  when  lawfully 
asserted  before  it,  and  not  to  leave  that  enforcement  to  the  mere  ju- 
risdiction of  the  sword.  Disregard  of  a  valid  measure  of  retaliation 
is  as  against  neutrals  just  as  justiciable  in  a  court  of  prize  as  is  breach 
of  blockade  or  the  carriage  of  contraband  of  war.  The  jurisdiction 
of  a  court  of  prize  is  at  least  as  essential  in  the  neutral's  interest  as 
in  the  interest  of  the  belligerent,  and  if  the  court  is  to  have  power  to 
release  in  the  interest  of  the  one,  it  must  also  have  inherent  power 
to  condemn  in  justice  to  the  other.  Capture  and  condemnation  are 
the  prescriptive  and  established  modes  by  which  the  law  of  nations 
as  applicable  to  maritime  warfare  is  enforced.  Statutes  and  interna- 
tional conventions  may  invest  the  court  with  other  powers  or  prescribe 
other  modes  of  enforcing  the  law,  and  the  belligerent  sovereign  may 
in  the  appropriate  form  waive  part  of  his  rights  and  disclaim  con- 
demnation in  favour  of  some  milder  sanction,  such  as  detention. 

In  the  terms  of  the  present  order,  which  says  that  a  vessel  (para- 
graph 2)  shall  be  "liable  to  capture  and  condemnation"  and  that  goods 
(paragraph  3)  shall  be  "liable  to  condemnation,"  some  argument  has 
been  found  for  the  appellants'  mairf  proposition,  that  the  Order  in  Coun- 
cil creates  an  offence  and  attaches  this  penalty,  but  their  Lordships  (|o 
not  accept  this  view.  The  order  declares,  by  way  of  warning  and  for 
the  sake  of  completeness,  the  consequences  which  may  follow  from 
disregard  of  it ;  but,  if  the  occasion  has  given  rise  to  the  right  to 
retaliate,  if  the  belligerent  has  validly  availed  himself  of  the  occasion, 
and  if  the  vessel  has  been  encountered  at  sea  under  the  circumstances 
mentioned,  the  right  and  duty  to  bring  the  ship  and  cargo  before  a 
court  of  prize,  as  for  a  justiciable  offence  against  the  right  of  the  bel- 
ligerent, has  arisen  thereupon,  and  the  jurisdiction  to  condemn  is  that 
which  is  inherent  in  the  court.  That  a  rebuttable  presumption  is  to 
be  deemed  to  arise  under  paragraph  1,  and  that  a  saving  proviso  is 
added  to  paragraph  2,  are  modifications  introduced  by  way  of  waiver 
of  the  sovereign's  rights.  Had  they  been  omitted  the  true  question 
would  still  have  been  the  same,  though  arising  in  a  more  acute  form, 
namely,  does  this  exercise  of  the  right  of  retaliation  upon  the  enemy 
occasion  inconvenience  or  injustice  to  a  neutral,  so  extreme  as  to  in- 
validate it  as  against  him?  In  principle  it  is  not  the  belligerent  who 
creates  an  offence  and  imposes  a  penalty  by  his  own  will  and  then  by 
his  own  authority  empowers  and  directs  the  Court  of  Prize  to  enforce 
it.  It  is  the  law  of  nations,  in  its  application  to  maritime  warfare, 
which  at  the  same  time  recognizes  the  right,  of  which  the  belligerent 
can  avail  himself  sub  modo,  and  makes  violation  of  that  right,  when 
so  availed  of,  an  offence,  and  is  the  foundation  and  authority  for  the 


Ch.  13)  RETALIATION  807 

right  and  duty  of  the  Court  of  Prize  to  condemn,  if  it  finds  the  cap- 
ture justified,  unless  that  right  has  been  reduced  by  statute  or  other- 
wise, or  that  duty  has  been  hmited  by  the  waiver  of  his  rights  on  the 
part  of  the  sovereign  of  the  captors. 

It  is  equally  inadmissible  to  describe  such  an  Order  in  Council  as 
this  as  an  executive  measure  of  police  on  the  part  of  the  crown  for 
the  purpose  of  preventing  an  inconvenient  trade,  or  as  an  authority  to 
a  court  of  prize  to  punish  neutrals  for  the  enjoyment  of  their  liberties 
and  the  exercise  of  their  rights.  Both  descriptions,  as  is  the  way  with 
descriptions  arguendo,  beg  the  question.  Undoubtedly  the  right  of  re- 
taliation exists.  It  is  described  in  The  Zamora,  [1916]  2  A.  C.  11; 
it  is  decided  in  The  Stigstad,  [1919]  A.  C.  279,  as  it  had  so  often 
been  decided  by  Sir  William  Scott  over  a  century  ago.  It  would  be 
disastrous  for  the  neutral,  if  this  right  were  a  mere  executive  right 
not  subject  to  review  in  a  Prize  Court;  it  would  be  a  denial  of  the 
belligerents'  right,  if  it  could  be  exercised  only  subject  to  a  paramount 
and  absolute  right  of  neutrals  to  be  free  to  carry  on  their  trade  with- 
out interference  or  inconvenience.  This  latter  contention  has  already 
been  negatived  in  The  Stigstad,  [1919]  A.  C.  279.  The  argument  in 
favour  of  the  former,  drawn  from  the  decisions  of  Sir  William  Scott, 
seems  to  their  Lordships  to  be  no  less  unacceptable.  With  the  terms 
of  the  Proclamations  and  Orders  in  Council  from  1806  to  1812  their 
Lordships  are  not  now  concerned.  They  were  such  that  the  decisions 
on  them  in  many  cases  involved  not  merely  the  use  of  the  term  "block- 
ade" but  discussion  of,  or  at  least  allusion  to,  the  nature  of  that  right. 
It  is  however,  in  their  opinion  a  mistake  to  argue,  as  has  been  argued 
before  them,  that  in  those  decisions  the  right  to  condemn  was  deemed 
to  arise  from  the  fact  that  the  cases  were  cases  of  blockade,  although 
the  occasion  for  the  blockade  was  the  passing  of  a  retaliatory  order.  In 
their  opinion  Sir  William  Scott's  doctrine  consistently  was  that  retali- 
ation is  a  branch  of  the  rights  which  the  law  of  nations  recognizes  as 
belonging  to  belligerents,  and  that  it  is  as  much  enforceable  by  Courts 
of  Prize  as  is  the  right  .of  blockade.  They  find  no  warrant  or  author- 
ity for  holding  that  it  is  only  enforceable  by  them,  when  it  chances  to 
be  exercised  under  the  form  or  the  conditions  of  a  valid  blockade. 
When  once  it  is  established  that  the  conduct  of  the  enemy  gave  oc- 
casion for  the  exercise  of  the  right  of  retaliation,  the  real  question  is 
whether  the  mode  in  which  it  has  been  exercised  is  such  as  to  be  in- 
valid by  reason  of  the  burden  which  it  imposes  on  neutrals,  a  ques- 
tion pre-eminently  one  of  fact  and  of  degree. 

The  onslaught  upon  shipping  generally  which  the  German  Govern- 
ment announced  and  carried  out  at  the  beginning  of  1917  is  now  mat- 
ter of  history.  Proof  of  its  formidable  character,  if  proof  were  needed, 
is  to  be  found  in  a  comparison  between  the  Retaliation  Orders  in 
Council  of  1915  and  of  1917,  and  their  Lordships  take  the  recitals  of 
the  latter  order  as  sufficiently  establishing  the  necessity  for  further  in- 
voking the  right  of  retaliation.    They  address  themselves  accordingly  to 


808  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR  (Part  3 

what  is  the  real  question  in  the  present  appeal,  namely,  the  character 
and  the  degree  of  the  danger  and  inconvenience  to  which  the  trade  of 
neutrals  was  in  fact  subjected  by  the  enforcement  of  that  order.  They 
do  not  think  it  necessary  to  criticize  theoretic  applications  of  the  lan- 
guage of  the  order  to  distant  seas,  where  the  enemy  had  neither  trade 
nor  shipping,  a  criterion  which  was  argued  for,  but  which  they  deem 
inapplicable.  Nor  have  they  been  unmindful  of  the  fact  that,  to  some 
extent,  a  retaliatory  order  visits  on  neutrals  the  consequences  of  oth- 
ers' wrongdoing,  always  disputed  though  in  the  present  case  hardly  dis- 
putable, and  that  the  other  belligerent,  in  his  turn  and  also  under  the 
name  of  "retaliation,"  may  impose  upon  them  fresh  restrictions,  but 
it  seems  to  them  that  these  disadvantages  are  inherent  in  the  nature 
of  this  established  right,  are  unavoidable  under  a  system  which  is  a 
historic  growth  and  not  a  theoretic  model  of  perfection,  and  are  rele- 
vant in  truth  only  to  the  question  of  degree.  Accordingly  they  have 
taken  the  facts  as  they  affected  the  trade  in  which  the  Leonora  was 
engaged,  and  they  have  sincerely  endeavoured,  as  far  as  in  them  lay,  to 
view  these  facts  as  they  would  have  appeared  to  fair-minded  and 
reasonable  neutrals  and  to  dismiss  the  righteous  indignation  which  might 
well  become  those  who  recall  only  the  crisis  of  a  desperate  and  terrible 
struggle. 

Compliance  with  the  requirements  of  the  Order  in  Council  would 
have  involved  the  Leonora  in  difficulties,  partly  of  a  commercial  and 
partly  of  a  military  character.  Her  voyage,  and  with  it  the  ordinary 
expenses  of  her  voyage,  would  have  been  enlarged,  and  the  loss  of  time 
and  possibly  the  length  of  the  voyage  might  have  been  added  to  by 
the  fact  that  no  port  or  class  of  ports  of  call  had  been  appointed  for 
the  purpose  of  the  order.  Inconvenience  of  this  character  seems  to  be 
inevitable  under  the  circumstances.  In  so  far  as  it  is  measurable  en- 
tirely in  terms  of  money,  the  extra  expense  is  such  as  could  be  passed 
on  to  the  parties  liable  to  pay  freight,  and  neither  by  itself  nor  in  con- 
nection with  other  and  more  serious  matters  should  this  kind  of  in- 
convenience be  rated  high. 

It  is  important  to  observe  that  the  order  does  not  forbid  the  car- 
riage of  the  goods  in  question  altogether.  The  neutral  vessel  may  carry 
them  at  her  peril,  and  that  peril,  so  far  as  condemnation  is  concerned, 
may  be  averted  if  she  calls  at  an  appointed  port.  The  shipowner,  no 
doubt,  would  say  that  if  his  ship  is  to  make  the  call  he  will  never  be 
able  to  ship  the  cargo,  for  its  chance  of  escape  would  be  but  small,  and 
that  if  he  is  to  get  the  cargo  he  must  risk  his  ship  and  undertake  to 
proceed  direct  to  her  destination.  The  contention  is  less  formidable 
than  it  appears  to  be  on  the  surface.  Their  Lordships  know  well,  and 
the  late  President  with  his  experience  knew  incomparably  better,  with 
what  ingenuity  and  artifice  the  origin  of  a  cargo  and  every  other  dam- 
aging circumstance  about  it  have  been  disguised  and  concealed  where 
the  prize  of  success  was  high  and  the  parties  concerned  were  unfet- 
tered by  scruples  and  inspired  by  no  disinterested  motives.    They  think 


Ch.  13)  RETALIATION  809 

that  the  chance  of  escape  in  a  British  port  of  call  must  be  measured 
against  the  enormous  economic  advantage  to  the  enemy  of  carrying 
on  this  export  trade  for  the  support  of  his  foreign  exchange  and  the 
benefit  of  his  much-needed  imports,  and  they  are  convinced  that  the 
chance  might  well  be  sufficient  to  induce  the  promoters  of  the  trade 
both  to  pay,  and  indeed  to  prepay,  whatever  freight  the  shipowner  might 
require  in  order  to  cover  extra  insurance  and  the  costs  of  a  protracted 
voyage,  and  to  give  to  the  actual  shipper  such  favourable  terms  of 
purchase,  insurance  or  otherwise,  as  would  lead  him  to  expose  his 
cargo  to  the  risk  of  detection  of  its  origin.  They  are  far  from  think- 
ing that  compliance  with  the  order  would  exclude  neutrals  from  all 
the  advantage  of  the  trade.  If  the  voyages  were  fewer  in  number 
they  would  tend  to  be  more  profitable  singly,  and  in  any  case  this  par- 
ticular traffic  is  but  a  very  small  part  of  the  employment  open,  and 
legitimately  so,  to  neutral  traders,  and  the  risk  of  its  loss  need  not  be 
regarded  as  of  great  moment.     *     *     * 

Their  Lordships  recall  and  apply  what  was  said  in  The  Stigstad, 
that  in  estimating  the  burden  of  the  retaliation  account  must  be  taken 
of  the  gravity  of  the  original  offence  which  provoked  it,  and  that  it 
is  material  to  consider  not  only  the  burden  which  the  neutral  is  called 
upon  to  bear,  but  the  peril  from  which,  at  the  price  of  that  burden, 
it  miay  be  expected  that  belligerent  retaliation  will  deliver  him.  It  may 
be — let  us  pray  that  it  may  be  so — that  an  order  of  this  severity  may 
never  be  needed  and  therefore  may  never  be  justified  again,  for  the 
right  of  retaliation  is  one  to  be  sparingly  exercised  and  to  be  strictly 
reviewed.  Still  the  facts  must  be  faced.  Can  there  be  a  doubt  that 
the  original  provocation  here  was  as  grave  as  any  recorded  in  history ; 
that  it  menaced  and  outraged  neutrals  as  well  as  belligerents ;  and  that 
neutrals  had  no  escape  from  the  peril,  except  by  the  successful  and 
stringent  employment  of  unusual  measures,  or  by  an  inglorious  assent 
to  the  enslavement  of  their  trade?    Their  Lordships  have  none. 

On  the  evidence  of  attacks  on  vessels  of  all  kinds  and  flags,  hospital 
ships  not  excepted,  which  this  record  contains,  it  is  plain  that  meas- 
ures of  retaliation  and  repression  would  be  fully  justified  in  the  inter- 
est of  the  common  good,  even  at  the  cost  of  very  considerable  risk  and 
inconvenience  to  neutrals  in  particular  cases.  Such  a  conclusion  hav- 
ing been  established,  their  Lordships  think  that  the  burden  of  proof 
shifts,  and  that  it  was  for  the  appellants  to  show,  if  they  desired,  that 
the  risk  and  inconvenience  were  in  fact  excessive,  for  the  matter  be- 
ing one  of  degree  it  is  not  reasonable  to  require  that  the  crown,  hav- 
ing proved  so  much  affirmatively,  should  further  proceed  to  prove  a 
negative  and  to  show  that  the  risk  and  inconvenience  in  any  particular 
class  of  cases  were  not  excessive.  Much  is  made  in  the  appellants'  evi- 
dence of  the  fact  that  calling  at  a  British  port  would  have  taken  the 
Leonora  across  a  German  mine  field,  but  it  is  very  noticeable  that 
throughout  the  case  the  very  numerous  instances  of  losses  by  German 
action  are  cases  of  losses  by  the  action  of   submarines  and  not  by 


810  RIGHTS   AND   DUTIES   OP   NATIONS   IN   TIME   OF   WAR         (Part  3 

mines.  The  appellants  filed  a  series  of  affidavits,  stating  in  identical 
terms  that  in  proceeding  to  a  British  port  of  call  vessels  would  incur 
very  great  risk  of  attack  by  submarines,  especially  if  unaccompanied  by 
an  armed  escort.  Of  the  possibility  of  obtaining  an  armed  escort  or  oth- 
er similar  protection  they  say  nothintg,  apparently  because  they  never 
had  any  intention  of  complying  with  the  Order  in  Council,  and  there- 
fore were  not  concerned  to  ascertain  how  much  danger,  or  how  little, 
their  compliance,  would  really  involve.  Proof  of  the  amount  of  dan- 
ger involved  in  crossing  the  mine  field  in  itself  is  singularly  lacking, 
but  the  fact  is  plain  that  after  a  voyage  of  no  extraordinary  character 
the  Leonora  did  reach  Harwich  in  safety. 

Under  these  circumstances  their  Lordships  see  no  sufficient  reason 
why,  on  a  question  of  fact,  as  this  question  is,  they  should  dififer  from 
the  considered  conclusion  of  the  President.  He  was  satisfied  that  the 
Order  in  Council  did  not  involve  greater  hazard  or  prejudice  to  the 
neutral  trade  in  question  than  was  commensurate  with  the  gravity  of 
the  enemy  outrages  and  the  common  need  for  their  repression,  and 
their  Lordships  are  not  minded  to  disturb  his  finding.  The  appeals 
accordingly  fail.  Their  Lordships  will  humbly  advise  His  Majesty 
that  they  should  be  dismissed  with  costs.* 

4  See  the  instructive  and  balanced  article  by  Sir  Erie  Richards,  on  "Britisli 
Prize  Courts  and  the  War,"  in  the  British  Year  Booli  of  International  Law, 
1920-21,  pp.  11-34.    In  the  course  of  this  article,  he  says: 

"Decisions  of  British  Prize  Courts  in  this  war  have  established  the  right 
of  one  belligerent  to  disregard  the  limits  of  International  Law  and  to  retaliate 
against  neutral  commerce,  if  the  other  belligerent  has  infringed  neutral  rights 
of  trade  to  the  detriment  of  the  first  belligerent;  and  the  courts  have  given 
effect  to  that  right  by  their  decrees.  The  Stigstad,  L.  Ri.  [1919]  A.  C.  -219.  In 
fact,  British  courts  were  bound  so  to  hold,  since  it  was  found  that  the  highest 
tribunal  in  prize  in  this  country  had  settled  the  point  in  the  Napoleonic  wars. 

*  *  *  It  was  known  that  Lord  Stowell  had  upheld  the  Retaliatory  Oi'ders 
in  the  Napoleonic  wars  and  that  Napoleon  had  claimed  the  right  to  retaliate 
in  his  decrees.  But  for  some  reason  or  other  both  the  British  Orders  in  Coun- 
cil and  the  French  Decrees  were  treated  by  jurists  as  turning  on  the  right  of 
blockade.  Moreover,  the  United  States  had  gone  to  war  in  1812  because  of 
the  British  claim  to  enforce  these  orders,  amongst  other  causes.  That  nation 
had  therefore  declined  at  that  time  to  admit  the  validity  of  retaliation,  and 
that  in  the  most  emphatic  way.  The  right  claimed  is  obviously  one  of  extreme 
importance,  for  it  enables  belligerents  to  override  the  whole  of  the  protection 
which  the  common  law  of  nations  and  treaties  have  given  to  neutral  trade, 
and  yet  if  retaliation  be  a  legal  right,  neutrals  can  have  no  cause  of  complaint. 

*  *  *  The  whole  matter  is  certain  to  be  the  subject  of  discussion  at  any 
future  conference  at  which  the  laws  of  war  at  sea  are  under  revision;  and 
the  right  of  retaliation  will  have  behind  it  the  usage  of  England  and  of  France 
in  their  wars  a  century  ago,  and  of  Great  Britain  and  Gennany  (and  to  some 
extent  of  France)  in  the  late  war ;  against  it  the  action  of  the  United  States 
in  1812."    Pages  29,  30,  33. 


Ch.  14)    NATIONALITY   OF   PROPERTY   IN   AND  DURING   TRANSIT  811 


CHAPTER  XIV 

NATIONALITY  OF  PROPERTY  IN  AND  DURING 

TRANSIT 


THE  SALLY. 

(Lords,  1795.     3  C.  Rob.  300,  note.) 

The  Sally,  Griffiths,  was  a  case  of  a  cargo  of  corn  shipped  March, 
1793,  by  Steward  and  Plunket,  of  Baltimore,  ostensibly  for  the  account 
and  risk  of  Conynghatn,  Nesbit  &  Co.,  of  Philadelphia,  and  consigned 
to  them  or  their  assigns.  By  an  endorsement  on  the  bill  of  lading,  it 
was  further  agreed  that  the  ship  should  proceed  to  Havre  de  Grace, 
and  there  wait  such  time  as  might  be  necessary,  the  orders  of  the 
consignee  of  the  said  cargo  (the  mayor  of  Havre)  either  to  deliver 
the  same  at  the  port  of  Havre,  or  proceed  therewith  to  any  one  port 
without  the  Mediterranean,  on  freight  at  the  rate  of  5s.  per  barrel  on 
delivery  at  Havre,  and  5s.  6d.  at  a  second  port,  the  freight  to  be  set- 
tled by  the  shippers  in  America  according  to  agreement. 

Amongst  the  papers  was  a  concealed  letter  from  Jean  Ternant,  the 
minister  of  the  French  Republic  to  the  United  States,  in  which  he 
informs  the  minister  of  foreign  affairs  in  France:  "The  house  of 
Conyngham  &  Co.,  already  known  to  the  ministers,  by  their  former 
operations  for  France,  is  charged  by  me  to  procure  without  delay,  a 
consignment  of  22,000  bushels  of  wheat,  8,000  barrels  of  fine  flour, 
900  barrels  of  salted  beef  from  New  England.  The  conditions  stipu- 
lated are  the  same  as  those  of  the  contract  of  2d  November,  1792, 
with  the  American  citizens,  Swan  &  Co.,  for  a  like  supply  to  be  made 
to  the  Antilles,  namely,  that  the  grain,  flour,  and  beef  are  to  be  paid 
at  the  current  price  of  the  markets  at  the  time  of  their  being  shipped; 
that  the  freights  shall  be  at  the  lowest  course  in  the  ports ;  that  an 
insurance  should  be  on  the  whole ;  and  that  a  commission  of  five  per 
cent,  shall  be  allowed  for  all  the  merchants'  expenses  and  fees.  It 
has  been  moreover  agreed,  considering  the  actual  reports  of  war,  that 
the  whole  shall  be  sent  as  American  property  to  Havre  and  to  Nantes, 
with  power  to  our  government  of  sending  the  ships  to  other  ports  con- 
ditional on  the  usual  freight.  As  you  have  not  signified  to  me  to 
whom  these  cargoes  ought  to  be  delivered  in  our  ports,  I  shall  pro- 
vide each  captain  with  a  letter  to  the  mayor  of  the  place." 

There  was  also  a  letter  from  J.  Ternant  to  the  mayor  of  the 
municipality  of  Havre.  "Our  government  having  ordered  me  to  send 
supplies  of  provisions  to  your  port,  1  inform  you  that  the  bearer  of 
this,  commanding  the  American  ship,  the  Sally,  is  laden  with  a  cargo 
of  wheat,  of  which  he  will  deliver  you  the  bill  of  lading." 


812  RIGHTS   AND    DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

To  the  twelfth  and  twentieth  interrogatories  the  master  deposed,  "that 
he  beheves  the  flour  was  the  property  of  the  French  government,  and 
on  being  unladen,  would  have  immediately  become  the  property  of  the 
French  government." 

In  the  argument  it  was  insisted,  on  the  part  of  the  claimants,  that 
the  cargo  was  to  be  considered  as  the  property  of  the  American  mer- 
chants; that  it  had  been  ordered  of  them,  to  be  supplied  and  deliv- 
ered at  a  certain  place ;  and  that  under  the  general  principle  of  law, 
property  was  not  considered  to  be  divested  between  the  vendor  and 
vendee  till  actual  delivery.^ 

It  was  contended,  that  the  contract  remained  executory  till  the  com- 
pletion by  delivery  in  Europe;  that  the  payment  was  contingent  on 
the  completion  of  the  contract  in  this  form,  and  that  no  money  had 
passed,  nor  any  compensation  or  agreement  had  intervened  to  produce 
an  absolute  conversion  of  the  property ;  and  it  was  prayed  that  the 
court  would  admit  farther  proof  to  ascertain  that  circumstance. 

On  the  part  of  the  captors  it  was  repHed,  that  the  general  rule  of 
law  subsisting  between  vendor  and  vendee  in  a  commercial  transaction, 
referring  only  to  the  contracting  parties,  and  not  affecting  the  rights 
of  third  persons,  could  not  apply  to  contracts  made  in  time  of  war, 
or  in  contemplation  of  war,  where  the  rights  of  a  belligerent  nation 
intervened ;  that  the  effect  of  such  a  contract  as  the  present  would 
be  to  protect  the  trade  of  the  contracting  belligerent  from  his  enemy ; 
and  that  if  it  could  be  allowed,  it  would  put  an  end  to  all  capture. 
It  was  said  to  be  a  known  principle  of  the  prize  court,  that  neutral 
property  must  be  proved  to  be  neutral  at  all  periods  from  the  time  of 
shipment,  without  intermission,  to  the  arrival  and  subsequent  sale  in 
the  port  of  the  enemy;  that  the  twelfth  and  twentieth  interrogatories 
were  framed  with  this  view  to  inquire,  "whether  on  its  arrival,  etc., 
it  shall  and  will  belong  to  the  same  owner  and  no  other,  etc.,"  and  a 
reference  was  made  to  the  case  of  the  Charles  Havenerswerth  in  1741, 
in  which  the  form  of  attestation  was  directed  to  be  prepared  by  the 
whole  bar,  and  was  established  in  the  present  form  to  ascertain  the 
property  at  the  several  periods  of  shipment,  and  arrival  in  the  enemy's 
ports ;  in  cases  where  afifidavits  were  to  be  received  to  supply  the  de- 
fects of  the  original  evidence,  in  the  place  of  plea  and  proof. 

The  Court  said:  It  has  always  been  the  rule  of  the  prize  courts, 
that  property  going  to  be  delivered  in  the  enemy's  country,  and  under  a 
contract  to  become  the  property  of  the  enemy  immediately  on  arrival, 
if  taken  in  transitu,  is  to  be  considered  as  enemy's  property.  When 
the  contract  is  made  in  time  of  peace  or  without  any  contemplation 
of  war,  no  such  rule  exists.  But  in  a  case  like  the  present,  where 
the  form  of  the  contract  was  framed  directly  for  the  purpose  of  ob- 
viating the  danger  apprehended  from  approaching  hostilities,  it  is  a 

1  Snee  v.  Trescot,  1  Atk.  245  (■1743 1;  Mason  v.  Lickbarrow,  1  H.  Black.  357 
(1790) ;    Hunter  v.  Beal,  3  T.  Rep.  466  (1785). 


Ch.  14)        NATIONALITY    OF    PROPERTY    IN    AND    DURING    TRANSIT         813 

rule  which  unavoidably  must  take  place.  The  bill  of  lading  expresses 
account  and  risk  of  the  American  merchants;  but  papers  alone  make 
no  proof,  unless  supported  by  the  depositions  of  the  master.  Instead 
of  supporting  the  contents  of  his  papers,  the  master  deposes,  "that 
on  arrival  the  goods  would  become  the  property  of  the  French  govern- 
ment," and  all  the  concealed  papers  strongly  support  him  in  this  tes- 
timony. The  evidentia  rei  is  too  strong  to  admit  farther  proof.  Sup- 
posing that  it  was  to  become  the  property  of  the  enemy  on  delivery, 
capture  is  considered  as  delivery.  The  captors,  by  the  rights  of  war, 
stand  in  the  place  of  the  enemy,  and  are  entitled  to  a  condemnation 
of  goods  passing  under  such  a  contract,  as  of  enemy's  property.  On 
every  principle  on  which  prize  courts  can  proceed,  this  cargo  must  be 
considered  as  enemy's  property. 
Condemned.^ 


THE  DANCKEBAAR  AFRICAAN. 

(High  Court  of  Admiralty,  179S.  1  C.  Rob.  107.) 
This  was  a  case  of  a  Dutch  ship,  bound  from  Batavia  to  Holland, 
and  taken  on  the  6th  of  November,  1795,  about  seven  leagues  to  the 
southward  of  the  Cape  of  Good  Hope.  ,  On  coming  to  the  Cape  of 
Good  Hope,  a  claim  was  given  on  the  part  of  Goetz  and  Vos,  inhab- 
itants of  the  Cape,  and  then  become  subjects  of  the  crown  of  Great 

2  In  the  case  of  The  Anna  Catharina,  4  C.  Rob.  107,  115,  118  (1802),  the 
ve.ssel  was  taken  gn  a  voyage  from  Hamburg  to  La  Guayra,  and  the  cargo,  it 
appeared,  was  going  under  "a  special  agreement  and  contract  with  the  Spanish 
government  of  the  Caracas."  It  was  alleged  in  the  first  place  that  the  vessel 
and  cargo  were  taking  "the  chance  of  the  market,"  and  that  in  any  event,  the 
Spanish  government  might  refuse  to  take  the  goods. 

On  this  state  of  affairs.  Sir  William  Scott,  following  the  law  laid  down  in 
The  Sally,  held  that  goods  shipped  under  contract  to  a  belligerent  port  "be- 
come, in  itinere,  the  property  of  the  enemy,"  and  that  "the  legal  consequence 
of  condemnation  would  on  that  ground  alone  attach  upon  it." 

In  the  case  of  the  ship  Francis  and  Cargo,  1  Gall.  445,  Fed.  Cas.  No.  5032 
(1813),  approved  by  the  Supreme  Court,  8  Cranch  354,  3  L.  Ed.  587  (1814), 
a  shipment  made  by  an  enemy  shipper  to  his  correspondent  in  America  to  be- 
long to  the  latter  at  his  election,  in  twenty-four  hours  after  the  arrival  there- 
of, was  held  liable  to  condemnation  as  hostile  property. 

In  war,  property  cannot  change  its  character  in  transitu ;  and  in  this  case, 
an  election  during  the  transit  would  not  merge  the  hostile  character  of  th*> 
property. 

The  law  on  the  subject  is  shortly  stated  by  Mr.  Justice  Story  in  The  Ann 
Green,  1  Gall.  274,  Fed.  Cas.  958,  9(54,  No.  414  (1812),  who,  in  delivering  the 
opinion  of  the  court,  said : 

"The  cases  are,  as  I  think,  settled  upon  just  principles,  that  decide  that  in 
time  of  war,  property  shall  not  be  permitted  to  change  character  in  its  trans- 
it ;  nor  shall  property  consigned,  to  become  the  property  of  the  enemy  on  ar- 
rival, be  protected  by  the  neutrality  of  the  shipper.  Such  contracts,  however 
valid  in  time  of  peace,  are  considered,  if  made  in  war  or  in  contemplation  of 
war,  as  infringements  of  belligerent  rights,  and  calculated  to  introduce  the 
grossest  frauds.  In  fact,  if  they  could  prevail,  not  a  single  bale  of  enemy's 
goods  would  ever  be  found  upon  the  ocean."  Vrow  Margaretha,  1  C.  Rob.  336 
(1790) ;  Carl  Walter,  4  C.  Rob.  207  (1S02) ;  .Tan  Frederick,  5  C.  Rob.  128  (1804) ; 
The  Constantia,  6  C.  Rob.  321  (1807) ;  The  Atlas,  3  C.  Rob.  299  (1801) ;  The 
Anna  Catharina,  4  C.  Rob.  107  (1802);   Packet  De  Bilboa,  2  C.  Rob.  133  (1799). 


814  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

Britain.  The  cargo  had  been  delivered  to  them  on  bail  to  answer  ad- 
judication.    *     *     * 

Sir  W.  Scott.  I  am  of  opinion  that  this  is  a  decided  case  on  the 
authority  of  the  Supreme  Court  in  The  Negotie  en  Zeevaart.  I  remem- 
ber that  case  well,  having  been  junior  counsel  in  it,  and  having  attended 
much  to  it,  as  there  was  much  difference  of  opinion  respecting  it  in 
the  court  below. 

It  was  a  case  of  a  ship  sailing  from  Demarara  to  Middlebourg,  in 
Holland,  on  the  30th  of  January,  1781,  about  six  weeks  after  the  dec- 
laration of  hostilities  against  Holland.  Demarara  surrendered  to  the 
British  forces  on  the  14th  of  March ;  and  the  capture  was  made  on 
th^  25th.  The  terms  of  capitulation  were  very  favorable :  "The  in- 
habitants were  to  take  the  oath  of  allegiance;  to  be  permitted  to  ex- 
port their  own  property,  and  to  be  treated  in  all  respects  like  British 
subjects,  till  his  majesty's  pleasure  could  be  known;"  and  although 
this  was  in  the  first  instance  only  un(Jer  the  proclamation  of  the  captor, 
still  that  being  accepted,  it  took  complete  effect.  These  terms  were 
afterwards  confirmed  by  the  king.  There  was,  therefore,  in  that  case 
as  strong  a  promise  of  protection  as  could  be;  and  recognized  and 
confirmed  by  the  supreme  authority  of  the  state. 

Under  these  circumstances,  the  judge  of  the  admiralty  thought  the 
clami  so  strong,  that  he  actually  restored ;  and  it  was  not  his  opinion 
alone.  On  appeal,  however,  the  Lords  were  of  opinion,  that  property 
sailing  after  declaration  of  hostilities,  but  before  a  capitulation,  and 
takeq  on  the  voyage,  was  not  protected  by  the  intermediate  capitula- 
tion. It  was  not  determined  on  any  ground  of  illegal  trade,  nor  on  any 
surmise,  that  when  the  owners  became  British  subjects,  the  trade  in 
which  the  property  was  embarked,  became,  ex  post  facto,  illegal ;  nor 
was  it  at  all  taken  into  consideration,  that  Demarara  had  again  become 
a  Dutch  colony  at  the  time  of  adjudication.  It  was  declared  to  be  ad- 
judged on  the  same  principles  as  if  the  cause  had  come  on  at  the  time 
of  capture.  It  was  not  on  any  of  these  grounds,  but  simply  on  the 
ground  of  Dutch  property,  that  condemnation  passed  in  that  case.  I 
remember  a  dictum  of  a  great  law  lord  then  present,  Lord  Cambden, 
"that  the  ship  sailed  as  a  Dutch  ship,  and  could  not  change  her  char- 
acter in  transitu." 

This  decision  of  the  Supreme  Court  must  be  binding  on  me,  unless 
there  are  in  the  present  case  any  distinctions  that  take  it  out  of  the  law 
of  that  decision.  The  distinctions  made,  are,  1st,  that  the  colony  in 
this  case  was  not  hostile ;  and,  2dly,  that  the  ship  was  not  going  into 
the  hands  of  the  enemy,  but  that  she  was  coming  first  to  the  Cape 
into  the  hands  of  the  owners,  now  become  British  subjects;  and  that 
they  would  have  altered  the  ulterior  destination  to  Holland. 

On  the  first  point,  that  Holland  was  not  hostile,  it  is  enough  that 
hostilities  have  since  followed,  and  with  a  retrospective  operation.  The 
state  of  affairs  was  at  that  time  at  best  but  very  doubtful ;  and  all 
property  taken  during  that  doubtful  state  of  things  has  been  since 


Ch.  14)         NATIONALITY   OF    PROPERTY   IN   AND   DURING    TRANSIT         S15 

condemned;  but  it  is  said,  that  although  Holland  has  become  hostile, 
the  Cape  has  not.  If  it  could  be  proved  that  the  colony  adhered  to  the 
old  government,  it  might  entitle  them  to  be  exempted  from  this  hostile 
character;  but  that  is  not  shown,  and  there  is  no  reason  to  presume 
it.  They  surrendered  as  Dutch  subjects ;  and,  therefore,  there  is  no 
pretence  now  to  contend  for  a  different  character. 

The  other  distinction  is,  that  this  property  was  coming  to  the  hands 
of  the  owners,  whilst  in  the  Demarara  case  it  was  gone  from  them, 
and  must  have  fallen  into  the  possession  of  the  mother  country;  but 
there  is  no  decided  proof  that  this  ship  was  coming  to  the  Cape;  and 
if  so,  she  is  still  to  be  considered  as  taken  merely  in  transitu  towards 
Holland,  where  the  voyage  was  clearly  to  have  ended;  and  in  what 
character?  As  a  Dutch  ship,  in  a  Dutch  port.  H  the  vessel  had  arrived 
at  the  Cape,  I  will  not  say,  that  coming  actually  into  the  hands  of  the 
capitulants,  she  might  not  have  been  protected  as  property  in  posses- 
sion; but  being  taken  before  she  arrived  there,  as  Dutch  property, 
I  am  bound  down  by  the  decision  of  the  lords;  and  I  think  myself 
obliged  to  say,  that  her  character  could  not  be  changed  in  transitu; 
and  that  she  must  be  condemned  as  Dutch  property.' 

3  In  The  Circassian,  2  Wall.  135,  17  L.  Ed.  796  (1864),  it  was  held  by  the  Su- 
preme Court  (Mr.  Justice  Nelson  dissenting),  that  "the  occupation  of  a  city  by 
a  blockading  belligerent  does  not  terminate  a  public  blockade  of  it  previously 
existing ;  the  city  itself  being  hostile,  the  opposing  enemy  in  the  neighborhood, 
and  the  occupation  limited,  recent,  and  subject  to  the  vicissitudes  of  war." 

The  entrance  of  federal  troops  into  the  city  of  New  Orleans  did  not,  it  was 
maintained,  destroy  the  blockade,  and  therefore  the  Circassian,  a  British  ves- 
sel arriving  after  the  occupation  of  the  city,  was  taken  in  delicto. 

The  case  of  The  Circassian  was  later  submitted  to  the  American  and  British 
Claims  Commission  appointed  under  article  12  of  the  Treaty  of  May  8,  1871. 
between  the  United  States  and  Great  Britain.  This  Commission  made  awards 
in  favor  of  all  the  claimants,  which  awards  were  paid  by  the  United  States. 
See  4  Moore's  International  Arbitrations,  3911-392.S  (1898). 

In  The  Adula.  176  U.  S.  361.  20  Sup.  Ct.  432.  44  L.  Ed.  .505  (1900),  the  court 
held  that,  although  American  troops  occupied  the  mouth  of  the  Bay,  the  block- 
ade was  still  binding  upon  vessel  bound  for  the  city  of  Guantanamo,  eighteen 
miles  inland,  and  in  the  possession  of  the  enemy.  The  Supreme  Court  relied 
upon  The  Circassian  as  decisive,  notwithstanding  the  awards  of  the^American 
and  British  Claims  Commi.ssion,  and  condemned  the  vessel. 

The  Danckebaar  Africaan,  supra,  and  The  Circassian,  are  thus  criticised  by 
an  eminent  authority : 

"In  both  these  cases  the  essential  fact  was  lost  sight  of  that  the  property 
of  individuals  engaged  in  mercantile  acts  is  confiscated,  not  because  they  are 
personally  hostile  to  the  belligerent,  but  because  they  are  members  of  the 
enemy  state  or  closely  associated  with  it,  and  so  contribute  to  its  strength,  or 
else  because  they  are  doing  acts  inconvenient  to  the  belligerent.  So  soon  as 
they  cease,  in  whatever  manner,  or  from  whatever  cause,  to  be  members  of  an 
enemy  state,  or  to  be  associated  with  it,  or  so  soon  as  their  acts  cease  to  be 
inconvenient,  all  reason  for  the  confiscation  of  their  property  falls  to  the 
ground."  William  E.  Hall,  A  Treatise  on  International  Law  (4th  Ed.,  1895). 
529  530. 
~To  make  a  vessel  liable  for  trading  with  the  enemy,  there  should  be  the 
intent  to  trade,  coupled  with  destination  to  an  enemy  port. 

In  The  Abby,  5  C.  Kol).  251,  252  (1804),  counsel  contended  that  "it  could  not 
be  deemed  a  trading  with  the  enemy,  since  the  ship  sailed  before  the  breaking 
out  of  hostilities  against  Holland,  and  before  the  parties  could  have  any 
knowledge  of  that  event ;  and  that,  at  the  supposed  time  of  arrival,  Demarara 


816  RIGHTS   AXD   DUTIES   OF   NATIONS   IN   TIME   OF   WAR  (Part  3 

[to  which  the  vessel  was  destined]  had  become  a  British  settlement."  Sir 
William  Scott  agreed  to  this  contention. 

In  the  case  of  The  Trende  Sostre,  6  C.  Rob.  390.  note  (1807),  Sir  William 
Scott  applied  this  principle  to  the  law  of  contraband,  saying: 

"Because,  from  the  moment  when  the  Cape  [of  Good  Hope]  became  a  British 
possession,  the  goods  lost  their  nature  of  contraband.  They  were  going  into 
the  possession  of  a  British  settlement,  and  the  consequence  of  any  pre-emp- 
tion that  could  be  put  upon  them  would  be  British  pre-emption.  It  has  been 
said  that  this  is  a  principle  which  the  court  has  not  applied  to  cases  of  con- 
traband :  and  that  the  court,  in  applying  it  to  cases  of  blockade,  did  it  only 
in  consideration  of  the  particular  hardships  consequent  on  that  class  of  cases. 
But  I  am  not  aware  of  any  material  distinction ;  because  the  principle  on 
which  the  court  proceeded  was,  that  there  must  be  a  delictum  existing  at  the 
moment  of  seizure  to  sustain  the  penalty.  It  is  said  that  the  offence  was  con- 
summated by  the  act  of  sailing,  and  so  it  might  be  with  respect  to  the  design 
of  the  party,  and  if 'the  seizure  had  been  made  whilst  the  offence  continued, 
the  property  would  have  been  subject  to  condomnation.  But  when  the  char- 
acter of  the  goods  is  altered,  and  they  are  no  longer  to  be  considered  as  con- 
traband, going  to  the  port  of  an  enemy,  it  is  not  enough  to  say  that  they  were 
going  under  an  illegal  intention.  There  may  be  the  mens  rea,  not  accompanied 
by  the  act  of  going  to  an  enemy's  port.  I  am  of  opinion  therefore,  that  the 
same  rule  does  apply  to  cases  of  contraband,  and  upon  the  same  principle 
on  which  it  has  been  applied  in  those  of  blockade ;  I  am  not  aware  of  any 
cases  in  which  the  penalty  of  contraband  has  been  inflicted  on  goods  not  in 
delicto,  except  in  the  recent  class  of  cases  respecting  the  proceeds  of  contraband 
carried  outward  with  false  papers.  But  on  what  principle  have  those  decisions 
been  founded  ?  On  this,  that  the  right  of  capture  having  been  defrauded  in  the 
original  voyage,  the  opportunity  should  be  extended  to  the  returned  voyage. 
Here  the  opportunity  has  been  afforded  till  the  character  of  the  port  of  desti- 
nation became  British.  Till  that  time  the  liability  attached ;  after  that, 
though  the  intention  is  consummated,  there  is  a  material  defect  in  the  body 
and  sTibstance  of  the  offence,  in  the  fact,  though  not  in  the  intent.  I  am  of 
opinion  that  it  is  a  discharge,  and  a  complete  acquittal,  that  long  before  tlie 
time  of  seizure  these  goods  had  lost  their  noxioiis  character  of  going  as  con- 
traband to  an  enemy's  port." 

In  The  Lisette,  6  C.  Rob.  387,  395  (1807),  Sir  William  Scott  held  that  the 
penalty  of  capture  was  destroyed  by  the  raising  of  a  blockade  between  the 
time  of  sailing  and  capture,  saying  on  this  point : 

"It  is  said  that  the  offence  was  consummated  by  the  act  of  sailing;  so  it 
is  in  a  certain  sense.  But  the  ship  was  not  taken  in  delicto,  and  I  have  not 
had  any  case  pointed  out  to  me.  in  which  the  court  has  pronounced  an  un- 
favorable judgment  on  a  ship  spized  for  the  breach  of  a  bygone  blockade.  I 
know  of  no  such  case ;  and  certainly  the  same  reason  for  rigor  does  not  exist ; 
because  the  blockade  being  gone,  the  necessity  of  applying  the  penalty  to  pre- 
vent future  transgression  cannot  continue.  *  *  *  When  the  blockade  is 
raised,  a  veil  is  thrown  over  every  thing  that  ha?  been  done,  and  the  vessel 
is  no  longer  taken  in  delicto.  The  delictum  may  have  been  completed  at  one 
period,  but  it  is  by  subsequent  events  entirely  done  away." 

It  had  been  previously  held  by  the  same  learned  judge,  in  The  Imina,  3  C. 
Rob.  167  (1800).  that  the  offence  was  purged  by  the  act  of  the  master  of  the 
vessel  changing  his  destination  from  Amsterdam,  then  a  blockaded  port. 

In  The  Diana,  5  C.  Rob.  60,  64  (1803),  Sir  William  Scott  said: 

"The  goods  in  question  were  shipped  in  a  time  of  peace,  and  under  the  faith 
of  a  treaty ;  and  at  the  time  when  this  court  is  called  upon  to  decide  on  the 
claim,  the  proprietors  are  again  restored  to  their  British  character,  and  are 
redintegrated  subjects  of  this  country.  Under  all  these  circumstances  I  should 
betray  a  very  obtuse  sense  of  what  is  absurd  and  unjust,  if  I  did  not  feel  it 
highly  reasonable  that  they  should  be  admitted  to  their  jus  postliminii,  and  be 
held  entitled  to  the  protection  of  British  subjects." 

In  The  Orteric,  L.  R.  [1920]  App.  Cas.,  724  (1920),  the  Privy  Council  decided, 
as  stated  in  the  headnote,  that: 

"Goods  which  at  the  date  of  their  seizure  in  prize  are  not  enemy  property 
cannot  be  condemned  as  enemy  goods,  although  the  property  in  them  h'^s 
passed  to  an  enemy  before  the  issue  of  the  writ  claiming  condemnation." 


Ch.  14)         NATIONALITY   OF   PROPERTY   IN   AND   DURING    TRANSIT         817 

THE  PACKET  DE  BILBOA. 

(High  Court  of  Admiralty,  1799.    2  C.  Rob.  133.) 

This  was  a  case  of  a  claim  of  an  English  house,  for  goods  shipped 
on  board  a  Spanish  vessel,  by  the  order  of  Spanish  merchants,  before 
hostilities  with  Spain,  and  captured  December,  1796,  on  a  voyage  from 
London  to  Corunna. 

Sir  Wm.  Scott.  This  is  a  claim,  of  a  peculiar  nature,  for  goods  sent 
by  British  subjects  to  Spain,  shipped  before  hostilities,  during  the  time 
of  that  situation  of  the  tWo  countries,  of  which  it  was  unknown,  even 
to  our  government,  what  would  be  the  issue  between  them.  There  ap- 
pears to  be  no  ground  to  say  that  this  contract  was  influenced  by  specu- 
lations on  the  prospect  of  a  war,  or  that  anything  has  been  specially 
done  to  avoid  the  risks  of  war.  It  is  sworn  in  the  affidavit  of  the 
claimant  "that  this  is  the  constant  habit  and  practice  of  this  trade" ; 
whether  it  is  the  practice  of  the  Spanish  trade  generally,  or  only  the 
particular  mode  of  these  individuals  in  carrying  on  commerce  together 
is  not  material,  as  the  latter  would  be  quite  sufficient  to  raise  the  sub- 
ject of  this  claim.  The  question  is,  in  whom  is  the  legal  title?  Be- 
cause, if  I  should  find  that  the  interest  was  in  the  Spanish  consignee, 
I  must  then  condemn,  and  leave  the  British  party  to  apply  to  the  crown 
for  that  grace  and  favor  which  it  is  always  ready  to  show ;  the  prop- 
erty being  condemnable  to  the  crown  as  taken  before  hostilities. 

The  statement  of  the  claim  sets  forth  that  these  goods  have  not 
been  paid  for  by  the  Spaniard.  That  would  go  but  little  way;  that 
alone  would  not  do ;  there  must  be  many  cases  in  which  British  mer- 
chants suffer  from  capture  by  our  own  cruisers,  of  goods  shipped  for 
foreign  account  before  the  breaking  out  of  hostilities.  It  goes  on  to 
state  "that,  according  to  the  custom  of  the  trade,  a  credit  of  six,  nine, 
or  twelve  months  is  usually  given,  and  that  it  is  not  the  custom  to 
draw  on  the  consignee  till  the  arrival  of  the  goods ;  that  the  sea  risk 
in  peace  as  well  as  war  is  on  the  consignor ;  that  he  insures,  and  has 
no  remedy  against  the  consignee  for  any  accident  that  happens  during 
the  voyage."  Under  these  circumstances,  in  whom  does  the  property 
reside?  The  ordinary  state  of  commerce  is,  that  goods  ordered  and 
delivered  to  the  master  are  considered  as  delivered  to  the  consignee, 
whose  agent  the  master  is  in  this  respect ;  but  that  general  contract  of 
the  law  may  be  varied  by  special  agreement  or  by  a  particular  pre- 
vailing practice,  that  presupposes  an  agreement  amongst  such  a  de- 
scription of  merchants.  In  time  of  profound  peace,  when  there  is  no 
prospect  of  approaching  war,  there  would  unquestionably  be  nothing 
illegal  in  contracting  that  the  whole  risk  should  fall  on  the  consignor 
till  the  goods  came  into  possession  of  the  consignee.  In  time  of  peace 
they  may  divide  their  risk  as  they  please,  and  nobody  has  a  right  to  say 
they  shall  not ;  it  would  not  be  at  all  illegal  that  goods  not  shipped  in 
Scorr  Int. Law— 52 


818  RIGHTS   AND   DUTIES   OF   NATIONS  IN   TIME   OF   WAR         (Part  3 

time  of  war,  or  in  contemplation  of  war,  should  be  at  the  risk  of  the 
shipper.  In  time  of  war  this  cannot  be  permitted,  for  it  would  at 
once  put  an  end  to  all  captures  at  sea.  The  risk  would  in  all  cases 
be  laid  on  the  consignor,  where  it  suited  the  purpose  of  protection. 
On  every  contemplation  of  a  war,  this  contrivance  would  be  practiced 
in  all  consignments  from  neutral  ports  to  the  enemy's  country,  to  the 
manifest  defrauding  of  all  rights  of  capture.  It  is  therefore  consid- 
ered to  be  an  invalid  contract  in  time  of  war,  or,  to  express  it  more 
accurately,  it  is  a  contract  which,  if  made  in  war,  has  this  effect — that 
the  captor  has  a  right  to  seize  it  and  convert  the  property  to  his  own 
use ;  ^  for  he  having  all  the  rights  that  belong  to  his  enemy,  is  author- 
ized to  have  his  taking  possession  considered  as  equivalent  to  an  actual 
delivery  to  his  enemy,  and  the  shipper  who  put  it  on  board  during  a 
time  of  war  must  be  presumed  to  know  the  rule,  and  to  secure  him- 
self in  his  agreement  with  the  consignee  against  the  contingence  of  any 
loss  to  himself  that  can  arise  from  capture.  In  other  words,  he  is  a 
mere  insurer  against  sea  risk,  and  he  has  nothing  to  do  with  the  case 
of  capture,  the  loss  of  which  falls  entirely  on  the  consignee.  If  the 
consignee  refuses  payment  and  throws  it  upon  the  shipper,  the  shipper 
must  be  supposed  to  have  guarded  his  own  interests  against  that  haz- 
ard, or  he  has  acted  improvidently  and  without  caution. 

The  present  contract  is  not  of  this  sort;  it  stands  as  a  lawful  agree- 
ment, being  made  without  any  attention  to  the  event  of  a  war.  The 
goods  are  sent  at  the  risk  of  the  shipper;  if  they  had  been  lost,  on 
whom  would  the  loss  have  fallen  but  on  him?  What  surer  test  of 
property  can  there  be  than  this?  It  is  the  true  criterion  of  property 
that,  if  you  are  the  person  on  whom  the  loss  will  fall,  you  are  to  be 
considered  as  the  proprietor.  The  bill  of  lading  very  much  favors 
this  account.  The  master  binds  himself  to  the  shipper,  "to  deliver 
for  you  and  in  your  name,"  by  which  it  is  to  be  understood  that  the 
delivery  had  not  been  m.ade  to  the  master  for  the  consignee,  but  that  he 
was  to  make  the  delivery  in  the  name  of  the  shipper  to  the  consignee, 
till  which  time  the  inference  is  that  they  were  to  remain  the  prop- 
erty of  the  shipper.  As  to  the  payment  of  freight,  that  is  not  ma- 
terial, as  in  the  end  the  purchaser  must  necessarily  pay  the  carriage. 
The  other  consideration — who  bears  the  loss? — much  outweighs  that; 
neither  does  the  case  put  show  the  contrary.  The  case  put  is — sup- 
posing Spain  and  England  both  neutral  and  that  these  goods  had  been 
taken  by  the  French  and  sold  to  great  profit,  to  whose  advantage  would 
it  have  been?  The  answer  is,  if  the  goods  were  to  continue  the  prop- 
erty of  the  shipper  till  delivery,  it  must  have  enured  to  his  benefit,  and 
not  that  of  the  consignee.    To  make  the  loss  fall  upon  the  shipper  in 

4  The  Anna  Catharina,  4  C.  R!ob.  107  (1802) ;  The  Josephine,  4  C.  Rob.  25 
(1801) ;  The  Aurora,  4  C.  Rob.  218  (1802) ;  The  Neptunus,  6  O.  Rob.  403  (1807) ; 
The  Anne  Green,  1  Gall.  274,  Fed,  Gas,  No,  414  (1812) ;  The  Atlas,  3  C.  Rob. 
299  (1801). 

Scott  Int.Law 


Ch.  14)         NATIONALITY   OP    PROPERTY   IN    AND   DURING   TRANSIT         S19 

the  case  of  the  present  shipment  would  be  harsh  in  the  extreme.  He 
ships  his  goods  in  the  ordinary  course  of  traffic,  by  an  agreement  mu- 
tually understood  between  the  parties,  and  in  no  wise  injurious  to  the 
rights  of  any  third  party.  An  event  subsequently  happens  which  he 
could  in  no  degree  provide  against.  If  he  is  to  be  the  sufferer  he  is  a 
sufferer  without  notice  and  without  the  means  of  securing  himself ;  he 
was  not  called  upon  to  know  that  the  injustice  of  the  other  party  would 
produce  a  war  before  the  delivery  of  his  goods.  The  consignee  may 
refuse  payment,  referring  to  the  terms  of  the  contract  which  was  made 
when  it  was  perfectly  lawful;  and  under  what  circumstances  and  on 
what  principles  the  shipper  could  ever  enforce  payment  against  the  con- 
signee is  not  easy  to  discover.  The  goods  have  never  been  delivered 
in  Spain;  they  were  to  have  been  at  the  risk  of  the  shipper  till  de- 
livery, and  this  under  a  perfectly  fair  contract.  I  must  consider  the 
property  to  reside  still  in  the  English  merchant.  It  is  a  case  altogether 
different  from  other  cases  which  have  happened  on  this  subject  fla- 
grante bello.  I  am  of  opinion  that,  on  all  just  considerations  of  own- 
ership, the  legal  property  is  in  the  British  merchant ;  that  the  loss 
must  have  fallen  on  the  shipper,  and  the  delivery  was  not  to  have  been 
made  till  the  last  stage  of  the  business,  till  they  had  actually  arrived  in 
Spain  and  had  been  put  into  the  hands  of  the  consignee ;  and  there- 
fore I  shall  decree  restitution  of  the  goods  to  the  shipper. 

On  prayer  that  the  captor's  expenses  might  be  paid,  it  was  answered 
that  they  had  already  had  the  benefit  of  the  condemnation  of  the  ship. 

The  Court.  I  think  there  has  been  a  great  service  performed  to 
the  shipper.  If  the  goods  had  not  been  captured  they  would  have  gone 
into  the  possession  of  the  enemy.  The  captor  did  right  in  bringing  the 
question  before  the  court,  and  he  ought  by  no  means  to  be  a  loser.  I 
shall  not  give  a  salvage,  but  shall  direct  the  expenses  of  the  captor  to 
be  paid  out  of  the  proceeds. 


THE  MIRAMICHI. 
(High  Court  of  .Justice,  Admiralty  Division,  1914.     K  R.  [101 T)]  Prob.  Div.  71.) 

Claim  by  Muir  &  Co.,  of  New  York,  U.  S.  A.,  merchants,  and  the 
Guaranty  Trust  Company  of  New  York,  bankers,  in  respect  of  a  part 
cargo  of  wheat  purchased  by  George  Fries  &  Co.,  of  Colmar,  and 
Gebrueder  Zimmern  &  Co.,  of  Mannheim  in  the  German  Empire,  ship- 
ped at  Galveston,  Texas,  on  board  the  British  steamship  Miramichi  for 
conveyance  to  Rotterdam  and  seized  at  Eastham,  as  enemy  property, 
by  the  Customs  on  behalf  of  the  Crown.     *     *     * 

Sir  Samuel  Evans.  President.^     *     *     * 

The  sellers  contracted  to  sell  the  cargo  to  the  buyers  on  June  25 
for  shipment  during  the  month  of  July,  1914,  from  a  port  of  U.  S.  A. 
direct  or  indirect  to  Rotterdam  at  a  price  to  include  cost,  freight,  and 

t"  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


820  RIGHTS   AND   DUTIES   OP   NATIONS   IN   TIME   OF   WAR         (Part  3 

insurance;  in  other  words,  the  contract  was  what  is  so  well  known 
as  a  c.  i.  f.  contract.  Payment  (or  in  the  American  terminology  "re- 
imbursement") was  to  be  "by  check  against  documents."  The  sellers 
were  to  furnish  policies  of  insurance,  or  certificates  of  insurance  (free 
of  war  risk).  A  clause  for  settlement  of  disputes  in  London  was  in- 
cluded, which  shows  (apart  from  anything  else)  that  any  disputes  v^ere 
to  be  determined  according  to  English  law. 

The  sellers  had  bought  the  wheat  to  enable  them  to  fulfill  their  con- 
tract with  the  buyers  from  C.  B.  Fox,  a  grain  merchant  in  Galveston. 

The  wheat  was  shipped  by  Fox  at  Galveston  on  July  23,  1914.  The 
bill  of  lading  was  given  in  favour  of  Fox,  the  shipper,  and  was  made 
out  unto  the  order  of  one  Davis,  or  to  his  or  their  assigns.  It  was 
indorsed  generally,  and  in  due  course  the  sellers  paid  Fox  for  the  wheat 
and  obtained  the  bill  of  lading.  They  did  not  indorse  it  in  favour 
of  the  buyers,  and  it  remained  a.  bill  of  lading  only  indorsed  generally. 

The  necessary  insurances  were  effected  and  the  certificates  of  insur- 
ance were  obtained  by  the  sellers  on  July  23. 

On  July  28  the  sellers  drew  a  bill  of  exchange  upon  the  buyers,  and, 
according  to  the  statement  of  the  Attorney  General,  discounted  it  with 
the  bankers  (the  Guaranty  Trust  Company  of  New  York,  who  have 
joined  them  as  claimants).  On  the  same  date  they  deposited  with 
the  bankers  the  bill  of  lading  and  certificates  of  insurance  to  be  deliv- 
ered up  on  payment  by  the  buyers  through  a  Berlin  bank  of  the  amount 
due  on  the  bill  of  exchange  for  the  cost  and  insurance,  less  the  freight, 
which  was  credited,  as  it  was  to  be  paid  for  by  the  buyers  on  delivery. 

On  the  same  date  also  the  original  documents  were  forwarded  to 
the  Berlin  bank  for  credit  of  the  New  York  bank,  by  the  steamship 
Savoie,  which  sailed  from  New  York  on  July  29  and  arrived  at  Le 
Havre  on  August  5 ;  and  duplicate  documents  were  forwarded  by 
the  steamship  Carmania,  which  sailed  from  New  York  on  July  29  and 
arrived  at  Liverpool  on  August  7.  The  buyers  were  duly  notified  of 
these  matters,  and  an  invoice  was  forwarded  to  them  by  the  sellers 
on  the  same  day  (July  28)  with  all  the  necessary  particulars  of  the 
shipment  bill  of  exchange,-  and  documents. 

So  far  as  the  buyers  are  concerned,  no  further  information  was 
given  to  the  Court  except  that  the  documents  were  tendered  to  them, 
and  that  on  the  tender  they  refused  to  accept  the  documents,  or  to  pay 
the  sum  due  under  the  bill  of  exchange  and  indorsed  on  the  bill  of  lading 
as  follows:  "Refused  on  account  of  late  production,  nearly  one  month 
after  normal  due  date.     Colmar,  September  3,  1914.    Geo.  Fries." 

That  reason  was  a  mere  excuse ;  the  real  reason,  no  doubt,  was  that 
war  had  broken  out.  The  sellers,  therefore,  or  their  bankers,  still 
hold  the  bill  of  lading,  and  the  bill  of  exchange  remains  unpaid. 

These,  I  think,  are  all  the  material  facts.     *     *     * 

Very  difficult  questions  often  arise  at  law  as  to  when  the  property 
in  goods  carried  by  sea  is  transferred,  or  vests;  and  at  whose  risk 
goods  are  at  a  particular  time,  or  who  suffers  by  their  loss. 


Ch.  14)         NATIONALITY    OF   PROPERTY   IN   AND    DURING   TRANSIT        821 

These  are  the  kind  of  questions  which  are  often  brushed  aside  in 
the  Prize  Court  when  the  transactions  in  which  they  are  involved  take 
place  during  war  or  were  embarked  in  when  war  was  imminent  or  an- 
ticipated. 

But  where,  as  in  the  present  case,  all  the  material  parts  of  the  busi- 
ness transaction  took  place  bona  fide  during  peace,  and  it  becomes  nec- 
essary to  decide  questions  of  property,  I  hold  that  the  law  to  be  ap- 
plied is  the  ordinary  municipal  law  governing  contracts  for  the  sale 
and  purchase  of  goods. 

Where  goods  are  contracted  to  be  sold  and  are  shipped  during  peace 
without  any  anticipation  of  imminent  war,  and  are  seized  or  captured 
afloat  after  war  has  supervened,  the  cardinal  principle  is,  in  my  opin- 
ion, that  they  are  not  subject  to  seizure  or  capture  unless  under  the 
contract  the  property  in  the  goods  has  by  that  time  passed  to  the  en- 
emy.    *     *     * 

In  my  opinion  the  result  of  the  many  decisions  from  Wait  v.  Baker 
(1848)  2  Ex.  1,  up  to  Ogg  V.  Shuter  (1875)  1  C.  P.  D.  47,  Mirabita  v. 
Ottoman  Bank  (1878)  3  Ex.  D.  164,  and  thence  up  to  the  Sale  of  Goods 
Act,  1893 ;  and  of  the  provisions  of  the  Sale  of  Goods  Act,  1893,  itself, 
following  closely  on  these  matters  the  judgment  of  Cotton,  L.  J.,  in 
Mirabita  v.  Ottoman  Bank  [1878]  3  Ex.  D.  164;  and  of  the  decisions 
subsequent  to  the  act,  e.  g.,  Dupont  v.  British  South  Africa  Co.  [1901] 
18  Times  L.  R.  24,  Ryan  v.  Ridley  [1902]  8  Com.  Cas.  105,  and  Biddell 
V.  E.  Clemens  Horst  [1911]  IK.  B.  214,  934,  [1912]  A.  C.  18,  is  that, 
in  the  circumstances  of  the  present  case,  the  goods  had  not  at  the  time 
of  seizure  passed  to  the  buyers  ;  but  that  the  sellers  had  reserved  a  right 
of  disposal  or  a  jus  disponendi  over  them,  and  that  the  goods  still  re- 
mained their  property,  and  would  so  remain  until  the  shipping  docu- 
ments had  been  tendered  to  and  taken  over  by  the  buyers,  and  the  bill 
of  exchange  for  the  price  had  been  paid. 

It  follows  that  the  goods  seized  were  the  property  of  the  American 
claimants,  and  were  not  subject  to  seizure;  the  court  decrees  accord- 
ingly, and  orders  the  goods  to  be  released  to  the  claimants.     *     *     * 


THE  SALLY  MAGEE. 

(Supreme  Court  of  the  United  States,  1865.    3  Wall.  451,  18  L.  Ed.  197.) 

Appeal  from  a  decree  of  the  District  Court  for  the  Southern  Dis- 
trict of  New  York,  condemning  as  enemy's  property  the  bark  Sally 
Magee  and  her  cargo,  captured  during  the  late  rebellion ;  the  question 
before  this  court  being,  however,  only  as  to  the  cargo ;  the  condemna- 
tion of  the  vessel  not  being  appealed  from.     *     *     * 

All  the  goods  were  to  be  delivered  at  Richmond.  The  vessel  sailed 
from:  Rio  for  Richmond  on  the  12th  of  May,  1861.  When  forty-five 
days  out  from  Rio,  and  before  any  intelligence  of  the  war  had  reached 


822  RIGHTS   AND   DUTIES   OF  NATIONS   IN   TIME   OF   WAR  (Part  3 

her,  she  was  captuted  as  prize,  and  sent  to  New  York,  where  both 
the  vessel  and  cargo  were  Hbelled  in  the  District  Court.  Upon  the  re- 
turn of  the  monition,  on  the  23d  of  July,  1861,  two  claims,  both  made 
by  Fry,  Price  &  Co.,  of  New  York,  were  interposed  relative  to  the 
cargo.  In  July,  1863 — two  years  after  the  proceedings  on  prize  were 
instituted — both  the  vessel  and  cargo  were  condemned,  the  latter  hav- 
ing been  appraised  at  the  considerable  sum  of  $69,000.  *  *  *  e 
Mr.  Justice  SwaynE  delivered  the  opinion  of  the  court.' 
When  a  vessel  is  liable  to  confiscation,  the  first  presumption  is  that 
the  cargo  is  in  the  same  situation.*  The  bills  of  lading  in  the  case  are 
in  evidence.  The  goods  were  consigned  to  parties  living  in  Richmond. 
This  vested  the  ownership  in  them.  Such  is  the  legal  effect  of  a  bill 
of  lading  as  regards  the  consignee,  unless  the  contrary  is  shown  by 
the  bill  of  lading  itself  or  by  extrinsic  evidence.®  Upon  the  proofs 
there  was  clearly  a  prima  facie  case  for  the  condemnation  of  the  en- 
tire cargo.     *     *     * 

The  ownership  of  property  in  such  cases  cannot  be  changed  while  it 
is  in  transitu.  The  capture  clothes  the  captors  with  all  the  rights  of 
the  owner  which  subsisted  at  the  commencement  of  the  voyage,  and 
anything  done  thereafter,  designed  to  incumber  the  property,  or  change 
its  ownership,  is  a  nullity.  No  lien  created  at  any  time  by  the  secret 
convention  of  the  parties  is  recognized.  Sound  public  policy  and  the 
right  administration  of  justice  forbid  it.  This  rule  is  rigidly  enforced 
by  all  prize  tribunals.  The  property  was  shipped  to  the  enemy.  It 
was  diverted  from  its  course  by  the  capture.  The  allegation  of  a  lien 
wears  the  appearance  of  an  afterthought.  It  strikes  us  as  a  scheme 
devised  under  pressure,  to  save,  if  possible,  something  from  the  vor- 
tex which  it  was  foreseen  inevitably  awaited  the  vessel  and  cargo. 
*     *     * 

Decree  afifirmed.^" 

6  Part  of  the  statement  of  facts  and  part  of  the  opinion  are  omitted. 

7  Nelson,  J.,  not  having  sat ;   having  been  indisposed. 

8  Wheaton,  Appendix,  24. 

9  Laurence  v.  Minturn,  17  How.  100,  15  I7.  Ed.  58  (1854). 

10  In  the  San  Jose  Indiano.  2  Gall.  268,  21  Fed.  Cas.  389,  398,  No.  12,322 
(1S14),  Ml-.  Justice  Story,  sitting  at  Circuit,  said: 

"The  single  question  presented  in  this  claim  is,  in  whom  the  property  vest- 
ed during  its  transit ;  if  in  Mr.  Lizaur,  then  it  is  to  be  restored  ;  if  in  the 
shippers,  then  it  is  to  be  condemned.  It  is  contended  on  behalf  of  the  claim- 
ant, that  the  goods,  having  been  purchased  by  order  of  Mr.  Lizaur,  the  prop- 
erty vested  in  him  immediately  by  the  purchase,  and  the  contract  being 
executed  by  the  sale,  no  deliver^'  was  necessary  to  perfect  the  legal  title ;  that 
nothing  was  reserved  to  the  shippers,  but  a  mere  right  of  stoppage  in  tran- 
situ, and  that  if  they  had  been  burnt  before  the  shipment,  or  lost  during  the 
voyage,  the  loss  must  have  fallen  on  Mr.  Lizaur.  As  to  the  doctrine  of  stop- 
page in  transitu,  I  do  not  conceive  it  can  apply  to  this  case.  That  right  exists 
in  the  single  case  of  insolvency,  and  presupposes,  not  only  that  the  property 
in  the  goods  has  passed  to  the  consignee,  but  that  the  possession  is  in  a  third 
person  in  their  transit  to  the  consignee.  It  cannot,  therefore,  touch  a  case, 
where  the  actual  or  constructive  possession  still  remains  in  the  shipper  or  his 
exclusive  agents." 


Ch.  15)       BELLIGERENT  USE  OF  NEUTRAL  TERRITORY  §23 

CHAPTER  XV 
BELLIGERENT  USE  OF  NEUTRAL  TERRITORY 


SECTION  1.— BASE  OF  HOSTILE  OPERATIONS 


THE  SALVADOR. 

(Privy  Council,  1870.     L.  R.  1870,  3  Privy  Council,  218.) 

For  the  material  portion  of  The  Salvador,  in  so  far  as  this  refer- 
ence is  concerned,  see  The  Three  Friends,  post,  p.  838. 


THE  SANTISSIMA  TRINIDAD.  . 
THE  ST.  ANDRE. 

(Supreme  Court  of  the  United  States,  1822.    7  Wheat.  28-3,  5  L.  Ed.  454 " 

Appeal  from  the  Circuit  Court  of  Virginia. 

This  was  a  libel  filed  by  the  consul  of  Spain,  in  the  District  Court 
of  Virginia,  in  April,  1817,  against  eighty  nine  bales  of  cochineal,  two 
bales  of  jalap,  and  one  box  of  vanilla,  originally  constituting  part  of 
the  cargoes  of  the  Spanish  ships  Santissima  Trinidad  and  St.  Andre, 
and  alleged,  to  be  unlawfully  and  piratically  taken  out  of  those  vessels 
on  the  high  seas  by  a  squadron  consisting  of  two  armed  vessels  called 
the  Independencia  del  Sud  and  the  Altravida,  and  manned  and  com- 
manded by  persons  assuming  themselves  to  be  citizens  of  the  United 
Provinces  of  the  Rio  de  la  Plata.  The  libel  was  filed,  in  behalf  of  the 
original  Spanish  owners,  by  Don  Pablo  Chacon,  consul  of  his  Catholic 
Majesty  for  the  port  of  Norfolk  ;  and  as  amended,  it  insisted  upon  res- 
titution principally  for  three  reasons:  (1)  That  the  commanders  of  the 
capturing  vessels,  the  Independencia  and  the  Altravida,  were  native 
citizens  of  the  United  States,  and  were  prohibited  by  our  treaty  with 
Spain  of  1795,  from  taking  commissions  to  cruize  against  that  power. 
(2)  That  the  said  capturing  vessels  were  owned  in  the  United  States, 
and  were  originally  equipped,  fitted  out,  armed  and  manned  in  the 
United  States,  contrary  to  law.  (3)  That  their  force  and  armament  had 
been  illegally  augmented  within  the  United  States.     *     *     * 

The  District  Court,  upon  the  hearing  of  the  cause,  decreed  restitution 
to  the  original  Spanish  owners.  That  sentence  was  affirmed  in  the 
Circuit  Court,  and  from  the  decree  of  the  latter  the  cause  was  brought 
by  appeal  to  this  court. 


824  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

Mr.  Justice  Story  delivered  the  opinion  of  the  court.^ 
Upon  the  argument  at  the  bar  several  questions  have  arisen,  which 
have  been  deliberately  considered  by  the  court;  and  its  judgment  will 
now  be  pronounced.  The  first  in  the  order,  in  which  we  think  it  most 
convenient  to  consider  the  cause,  is,  whether  the  Independencia  is  in 
point  of  fact  a  public  ship,  belonging  to  the  government  of  Buenos 
Ayres.  The  history  of  this  vessel,  so  far  as  is  necessary  for  the  dis- 
posal of  this  point,  is  briefly  this :  She  was  originally  built  and  equip- 
ped at  Baltimore  as  a  privateer  during  the  late  war  with  Great  Britain, 
and  was  then  rigged  as  a  schooner,  and  called  the  Mammoth,  and 
cruized  against  the  enemy.  After  the  peace  she  was  rigged  as  a  brig, 
and  sold  by  her  original  owners.  In  January,  1816,  she  was  loaded 
with  a  cargo  of  munitions  of  war,  by  her  new  owners,  (who  are  -in- 
habitants of  Baltimore),  and  being  armed  with  twelve  guns,  constitut- 
ing a  part  of  her  original  armament,  she  was  despatched  from  that  port, 
under  the  command  of  the  claimant,  on  a  voyage,  ostensibly  to  the 
Northwest  Coast,  but  in  reality  to  Buenos  Ayres.  By  the  written  in- 
structions given  to  the  supercargo  on  this  voyage,  he  was  authorized 
to  sell  the  vessel  to  the  government  of  Buenos  Ayres,  if  he  could  ob- 
tain a  suitable  price.  She  duly  arrived  at  Buenos  Ayres,  having  ex- 
ercised no  act  of  hostility,  but  sailed  under  the  protection  of  the  Amer- 
ican flag,  during  the  voyage.  At  Buenos  Ayres  the  vessel  was  sold 
to  Captain  Chaytor  and  two  other  persons ;  and  soon  afterwards  she 
assumed  the  flag  and  character  of  a  public  ship,  and  was  understood 
by  the  crew  to  have  been  sold  to  the  government  of  Buenos  Ayres ; 
and  Captain  Chaytor  made  known  these  facts  to  the  crew,  and  asserted 
that  he  had  become  a  citizen  of  Buenos  Ayres  ;  and  had  received  a  com- 
mission to  command  the  vessel  as  a  national  ship ;  and  invited  the  crew 
to  enlist  in  the  service ;  and  the  greater  part  of  them  accordingly 
enlisted.  From  this  period,  which  was  in  May,  1816,  the  public  func- 
tionaries of  our  own  and  other  foreign  governments  at  that  port, 
considered  the  vessel  as  a  public  ship  of  war,  and  such  was  her  avowed 
character  and  reputation.  No  bill  of  sale  of  the  vessel  to  the  govern- 
ment of  Buenos  Ayres  is  produced,  and  a  question  has  been  made 
principally,  from  this  defect  in  the  evidence,  whether  her  character  as 
a  public  ship  is  established.  It  is  not  understood  that  any  doubt  is 
expressed  as  to  the  genuineness  of  Captain  Chaytor's  commission,  nor 
as  to  the  competency  of  the  other  proofs  in  the  cause  introduced,  to 
corroborate  it.  The  only  point  is,  whether  supposing  them  true,  they 
afford  satisfactory  evidence  of  her  public  character.  We  are  of  opin- 
ion that  they  do.  In  general  the  commission  of  a  public  ship,  signed 
by  the  proper  authorities  of  the  nation  to  which  she  belongs,  is  com- 
plete proof  of  her  national  character.  A  bill  of  sale  is  not  necessary 
to  be  produced.  Nor  will  the  courts  of  a  foreign  country  inquire  into 
the  means  by  which  the  title  to  the  property  has  been  acquired.     It 

1  The  statement  of  facts  is  abridged  and  part.s  of  the  opiuion  are  omitted. 


Ch.  15)       BELLIGERENT  USE  OF  NEUTRAL  TERRITORY  825 

would  be  to  exert  the  right  of  examining  into  the  vaUdity  of  the  acts 
of  the  foreign  sovereign,  and  to  sit  in  judgment  upon  them  in  cases 
where  he  has  not  conceded  the  jurisdiction,  and  where  it  would  be 
inconsistent  with  his  own  supremacy.  The  commission,  therefore,  of 
a  public  ship,  when  duly  authenticated,  so  far  at  least  as  foreign  courts 
are  concerned,  imports  absolute  verity,  and  the  title  is  not  examinable. 
The  property  must  be  taken  to  be  duly  acquired,  and  cannot  be  contro- 
verted. This  has  been  the  settled  practice  between  nations;  and  it 
is  a  rule  founded  in  public  convenience  and  policy,  and  cannot  be 
broken  in  upon,  without  endangering  the  peace  and  repose,  as  well  of 
neutral  as  of  belligerent  sovereigns.  The  commission  in  the  present 
case  is  not  expressed  in  the  most  unequivocal  terms ;  but  its  fair  pur- 
port and  interpretation  must  be  deemed  to  apply  to  a  public  ship  of 
the  government.  If  we  add  to  this  the  corroborative  testimony  of  our 
own  and  the  British  consul  at  Buenos  Ayres,  as  well  as  that  of  private 
citizens,  to  the  notoriety  of  her  claim  of  a  public  character;  and  her 
admission  into  our  own  ports  as  a  public  ship,  with  the  immunities  and 
privileges  belonging  to  such  a  ship,  with  the  express  approbation  of 
our  own  government,  it  does  not  seem  too  much  to  assert,  whatever 
may  be  the  private  suspicion  of  a  lurking  American  interest,  that  she 
must  be  judicially  held  to  be  a  public  ship  of  the  country  whose  com- 
mission she  bears.     *     *     * 

The  next  question  growing  out  of  this  record,  is  whether  the  prop- 
erty in  controversy  was  captured  in  violation  of  our  neutrality,  so  that 
restitution  ought,  by  the  law  of  nations,  to  be  decreed  to  the  libellants. 
Two  grounds  are  relied  upon  to  justify  restitution :  First,  that  the 
Tndependencia  and  Altravida  were  originally  equipped,  armed,  and 
manned  as  vessels  of  war  in  our  ports;  secondly,  that  there  was  an 
illegal  augmentation  of  the  force  of  the  Independencia  within  our  ports. 
Are  these  grounds,  or  either  of  them,  sustained  by  the  evidence  ?    *    *    * 

The  question  as  to  the  original  illegal  armament  and  outfit  of  the 
Independencia  may  be  dismissed  in  a  few  words.  It  is  apparent,  that 
though  equipped  as  a  vessel  of  war,  she  was  sent  to  Buenos  Ayres  on 
a  commercial  adventure,  contraband,  indeed,  but  in  no  shape  violating 
our  laws  or  our  national  neutrality.  If  captured  by  a  Spanish  ship  of 
war  during  the  voyage  she  would  have  been  justly  condemnable  as  good 
prize,  for  being  engaged  in  a  traffick  prohibited  by  the  law  of  nations. 
But  there  is  nothing  in  our  laws,  or  in  the  law  of  nations,  that  forbids 
our  citizens  from  sending  armed  vessels,  as  well  as  munitions  of  war,  to 
foreign  ports  for  sale.  It  is  a  commercial  adventure  which  no  nation  is 
bound  to  prohibit ;  and  which  only  exposes  the  persons  engaged  in  it 
to  the  penalty  of  confiscation.  Supposing,  therefore,  the  voyage  to 
have  been  for  commercial  purposes,  and  the  sale  at  Buenos  Ayres  to 
have  been  a  bona  fide  sale,  (and  there  is  nothing  in  the  evidence  before 
us  to  contradict  it,)  there  is  no  pretence  to  say,  that  the  original  outfit 
on  the  voyage  was  illegal,  or  that  a  capture  made  after  the  sale  was, 
for  that  cause  alone,  invalid. 


82G  RIGHTS   AND   DUTIES   OF  NATIONS   IN   TIME   OF   WAR         (Part  3 

The  more  material  consideration  is  as  to  the  augmentation  of  her 
force  in  the  United  States,  at  a  subsequent  period.  *  *  *  The 
Court  is,  therefore,  driven  to  the  conclusion,  that  there  was  an  illegal 
augmentation  of  the  force  of  the  Independencia  in  our  ports,  by  a  sub- 
stantial increase  of  her  crew ;  and  this  renders  it  wholly  unnecessary 
to  enter  into  an  investigation  of  the  question,  whether  there  was  not 
also  an  illegal  increase  of  her  armament.     *     *     * 

This  view  of  the  question  renders  it  unnecessary  to  consider  an- 
other which  has  been  discussed  at  the  bar  respecting  what  is  denom- 
inated the  right  of  expatriation.  *  *  *  And  here  we  are  met  by 
an  argument  on  behalf  of  the  claimant,  that  the  augmentation  of 
the  force  of  the  Independencia  within  our  ports,  is  not  an  infraction 
of  the  law  of  nations,  or  a  violation  of  our  neutraUty ;  and  that  so 
far  as  it  stands  prohibited  by  our  municipal  laws  the  penalties  are 
personal,  and  do  not  reach  the  case  of  restitution  of  captures  made 
in  the  cruize,  during  which  such  augmentation  has  taken  place.  It 
has  never  been  held  by  this  court,  that  an  augmentation  of  force  or 
illegal  outfit  affected  ■  any  captures  made  after  the  original  cruize 
was  terminated.  By  analogy  to  other  cases  of  violations  of  public 
law  the  offence  may  well  be  deemed  to  be  deposited  at  the  termina- 
tion of  the  voyage,  and  not  to  affect  future  transactions.  But  as 
to  captures  made  during  the  same  cruize,  the  doctrine  of  this  court 
has  long  established  that  such  illegal  augmentation  is  a  violation  of 
the  law  of  nations,  as  well  as  of  our  own  municipal  laws,  and  as  a  vio- 
lation of  our  neutrality,  by  analogy  to  other  cases,  it  infects  the  cap- 
tures subsequently  made  with  the  character  of  torts,  and  justifies  and 
requires  a  restitution  to  the  parties  who  have  been  injured  by  such 
misconduct.  It  does  not  lie  in  the  mouth  of  wrongdoers,  to  set  up 
a  title  derived  from  a  violation  of  our  neutrality.  The  cases  in  which 
this  doctrine  has  been  recognized  and  apphed,  have  been  cited  at  the 
bar,  and  are  so  numerous  and  so  uniform,  that  it  would  be  a  waste  of 
time  to  discuss  them,  or  to  examine  the  reasoning  by  which  they  are 
supported :  More  especially  as  no  inclination  exists  on  the  part  of  the 
court  to  question  the  soundness  of  these  decisions.  If,  indeed,  the 
question  were  entirely  new,  it  would  deserve  very  grave  consideration, 
whether  a  claim  founded  on  a  violation  of  our  neutral  jurisdiction 
could  be  asserted  by  private  persons,  or  in  any  other  manner  than  by 
a  direct  intervention  of  the  government  itself.  In  the  case  of  a  cap- 
ture made  within  a  neutral  territorial  jurisdiction,  it  is  well  settled,  that 
as  between  the  captors  and  the  captured,  the  question  can  never  be 
litigated.  It  can  arise  only  upon  a  claim  of  the  neutral  sovereign  as- 
serted in  his  own  courts  or  the  courts  of  the  power  having  cognizance 
of  the  capture  itself  for  the  purposes  of  prize.  And  by  analogy  to  this 
course  of  proceeding,  the  interposition  of  our  own  government  might 
seem  fit  to  have  been  required  before  cognizance  of  the  wrong  could 
be  taken  by  our  courts.  But  the  practice  from  the  beginning  in  this 
class  of  causes,  a  period  of  nearly  30  years,  has  been  uniformly  the 


Ch.  15)       BELLIGERENT  USE  OP  NEUTRAL  TERRITORY  827 

Other  way;  and  it  is  now  too  late  to  disturb  it.  If  any  inconvenience 
should  grow  out  of  it,  from  reasons  of  state  policy  or  executive  discre- 
tion, it  is  competent  for  Congress  to  apply  at  its  pleasure  the  proper 
remedy.     *     *     * 

Upon  the  whole,  it  is  the  opinion  of  the  court  that  the  decree  of  the 
Circuit  Court  be  affirmed,  with  costs. ^ 

2  Tn  r^a  Amistad  de  Rues,  5  Wheat.,  385,  389,  5  L.  Ed.  115  (1820),  Mr. 
Justice  Story  said : 

"Tlie  docti'ine  lieretofore  asserted  in  this  court  is,  that  whenever  a  cap- 
ture is  made  by  any  belligerent,  in  violation  of  our  nputrality,  if  the  prize 
come  voluntarily  within  our  jurisdiction,  it  shall  be  restored  to  the  original 
owners.  This  is  done,  upon  the  foottng  of  the  general  law  of  nations;  and  the 
doctrine  is  fully  recognised  by  the  act  of  Congress  of  1794.  But  this  court 
have  never  yet  been  understood  to  carry  their  jurisdiction,  in  cases  of  viola- 
tion of  neutrality,  beyond  the  authority  to  decree  restitution  of  the  specific 
property,  with  the  costs  and  expenses,  during  the  pending  of  the  judicial  pro- 
ceedings. We  are  now  called  upon  to  give  general  damages  for  plunderage, 
and  if  the  particular  circumstances  of  any  case  shall  hereafter  require  it,  we 
may  be  called  upon  to  inflict  exemplary  damages,  to  the  same  extent  as  in 
the  ordinary  cases  of  marine  torts.  We  entirely  disclaim  any  right  to  inflict 
such  damages ;  and  consider  it  no  part  of  the  duty  of  a  neutral  nation,  to 
interpose,  upon  the  mere  footing  of  the  law  of  nations,  to  settle  all  the  rights 
and  wrongs  which  may  grow  out  of  a  capture  between  belligerents." 

In  United  States  v.  Guinet,  2  Dall.  321,  1  L.  Ed.  39S  (1795),  it  was  held, 
according  to  the  headnote,  that: 

"The  conversion  of  a  merchant-vessel  of  a  foreign  belligerent  power  into  a 
vessel  of  war,  within  a  port  of  the  United  States,  with  intent  to  cruise  against 
another  belligerent  power,  at  peace  with  this  country,  is  to  be  deemed  an 
original  outfit ;   and  is  a  breach    of  the  neutralitv  laws  of  the  United  States." 

"In  the  case  of  La  Nereyda,  8  Wheat.  108,  5  L.  Ed.  574  (1823),  a  Spanish 
ship  of  war  was  captured  by  the  privateer  Irresistible,  which  was  fitted  out, 
owned,  and  commanded  by  American  citizens,  cruising  under  a  commission 
from  Artigas,  as  chief  of  the  Oriental  Republic  of  Rio  de  la  Plata.  The  prize 
was  taken  to  Margarita,  an  island  of  Venezuela,  and  there  condemned  as 
l)rizp,  Venezuela  being  an  ally  of  the  Oriental  Republic.  She  was  there  com- 
missioned as  a  Venezuelan  privateer,  and  came  to  Baltimore.  Here  she  was 
libelled  on  liehalf  of  the  king  of  Spain  on  the  ground  that  the  Irresistible  had 
been  illegally  fitted  out  in  an  American  port.  A  claim  was  set  up  by  one 
Francesche.  who  alleged  that  he  had  bought  her  at  the  prize  sale.  The  Su- 
preme Court  (Story,  J.,  giving  the  opinion)  held  that  this  purchase  was  not 
proved,  and  that  she  was  still  in  the  hands  and  ownership  of  the  owners  of 
the  Irresistible;  that  their  title  was  not  improved  by  the  condemnation,  if 
valid  otherwise;  and  restored  her  to  the  king  of  Spain.  Dana's  Wheaton. 
555,  note."  Freeman  Snow's  Cases  and  Opinions  on  International  Law  (1S93) 
407,  408,  note. 

Other  early  cases  in  the  United  States  courts  on  this- question  are:  Wil- 
liamson v.  The  Betsey,  Bee,  67,  Fed.  Cas.  No.  17,750  (1795)  ;  Moodie  v.  The 
Brothers,  Bee,  76,  Fed.  Cas.  No.  9,743  (1795)  ;  British  Consul  v.  The  Nancy, 
Bee,  73.  Fed.  Cas.  No.  1,898  (1795)  ;  Glass  v.  The  Betsey,  3  Dall.  6.  1  L. 
Ed.  485  (1794);  The  Magdalena,  (Talbot  v.  Janson)  3  Dall.  133,  1  L.  Ed.  510 
(1795) ;  Moodie  v.  The  Alfred,  3  Dall.  307,  1  L.  Ed.  614  (1790)  ;  Moodie  v.  The 
Phoebe  Anne,  3  Dall.  319,  1  L.  Ed.  618  (1796) ;  The  Alerta  v.  Moran,  9  Cranch, 
359,  3  L.  Ed.  758  (181 ,5)  ;  La  Invincible,  1  Wheat.  238.  4  L.  Ed.  SO  (1816) ;  The 
Estrella,  4  Wheat.  298,  4  L.  Ed.  574  (1819)  ;  La  Conception.  6  Wheat.  235.  5 
L.  Ed.  249  (1821)  ;  The  Bello  Corrunes.  6  Wheat.  152,  5  L.  Ed.  229  (1821);  The 
Gran  I'ara,  7  Wheat.  471,  5  L.  Ed.  501  (1822) ;  The  Arrogante  Barcclones  7 
Wheat.  496,  5  L.  Ed.  507  (1822) ;   The  Fanny,  9  Wheat.  659,  6  L.  Ed.  184  (1824). 

For  an  admirable  digest  of  these  cases,  the  doctrines  they  establish  and  for 
principal  cases  involving  a  breach  of  our  neutrality  acts,  as  well  as  (Jreat 
Britain's  shortcomings  in  the  Civil  War,  see  Dana's  Wheaton,  note  215.  pp. 
536-581  (1866). 


828  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

UNITED  STATES  v.  QUINCY. 
(Supreme  Court  of  the  United  States,  1832.    6  Pet.  445,  8  L.  Ed.  458.) 
For  the  material  portion  of  this  case,  see  The  Three  Friends,  post,. 
p.  836. 

UNITED  STATES  v.  THE  METEOR. 

(Circuit  Court  of  the  Unitod  States,  S.  D.  New  York,  1868.    3  Am.  Law 
Kev.  173,  Fed.  Cas.  No.  15.760.) 

The  Meteor  was  built  in  the  United 'States  in  1865,  during  the  war 
then  pending  between  Chile  and  Spain,  and  sold  to  the  Chilean  govern- 
ment, without  armament,  and  then,  it  was  alleged,  commissioned  when 
in  the  United  States,  as  a  Chilean  privateer.  She  was  libelled  in  New 
York  and  seized  January  23,  1866.  Upon  a  hearing  before  Judge  Betts, 
that  learned  judge  held  that  "there  must  be  a  decree  condemning  and 
forfeiting  the  property  under  seizure,  in  accordance  with  the  prayer  of 
the  libel.* 

Nelson,  Circuit  Justice.  This  is  an  appeal  in  admiralty  from  a 
decree  of  condemnation  in  a  libel  of  information  for  the  -Violation  of 
the  neutrality  laws  of  the  United  States.  We  have  examined  the  plead- 
ings and  proofs  in  the  case,  and  have  been  unable  to  concur  in  the 
judgment  of  the  court  below,  but  from  the  pressure  of  other  business 
have  not  found  time  to  write  out  at  large  the  grounds  and  reasons  for 
the  opinion  arrived  at.  We  must,  therefore,  for  the  present,  be  con- 
tent in  the  statement  of  our  conclusions  in  the  matter. 

1.  Although  negotiations  were  commenced  and  carried  on  between  the 
owners  of  the  Meteor  and  agents  of  the  government  of  Chile  for  the 
sale  of  her  to  the  latter,  with  the  knowledge  that  she  would  be  employed 
against  the  government  of  Spain,  with  which  Chile  was  at  war,  yet 
these  negotiations  failed  and  came  to  an  end  from  the  inability  of  the 
agents  to  raise  the  amount  of  the  purchase-money  demanded;  and  if 
the  sale  of  the  vessel,  in  its  then  condition  and  equipment,  to  the  Chilean 
government  would  have  been  a  violation  of  our  neutrality  laws,  of 
which  it  is  unnecessary  to  express  any  opinion,  the  termination  of  the 
negotiation  put  an  end  to  this  ground  of  complaint. 

2.  The  furnishing  of  the  vessel  with  coal  and  provisions  for  a  voyage 
to  Panama,  or  some  other  port  of  South  America,  and  the  purpose  of 
the  owners  to  send  her  thither,  in  our  judgment,  was  not  in  pursuance 
of  an  agreement  or  understanding  with  the  agents  of  the  Chilean  govern- 
ment, but  for  the  purpose  and  design  of  finding  a  market  for  her,  and 
that  the  owners  were  free  to  sell  her  on  her  arrival  there  to  the  govern- 
ment of  Chile  or  of  Spain,  or  of  any  other  government  or  person  with 
whom  they  might  be  able  to  negotiate  a  sale. 

*  The  above  statement  of  the  case  is  taken  from  3  Wharton's  Digest  (2d  E3d.^ 
1887)  561,  5G2. 


Ch.  15)       BELLIGERENT  USE  OF  NEUTRAL  TERRITORY  '         829 

3.  The  witnesses  chiefly  relied  on  to  implicate  the  owners  in  the  ne- 
gotiations with  the  agents  of  the  Chilean  government,  with  a  view  and 
intent  of  fitting  out  and  equipping  the  vessel  to  be  employed  in  the 
w^ar  with  Spain,  are  persons  who  had  volunteered  to  negotiate  on  be- 
half of  the  agents  with  the  owners  in  expectation  of  large  commis- 
sions in  the  event  of  a  sale,  or  persons  in  the  expectation  of  employ- 
ment in  some  situation  in  the  command  of  the  vessel,  and  very  clearly 
manifest  their  disappointment  and  chagrin  at  the  failure  of  the  ne- 
gotiations, and  whose  testimony  is  to  be  examined  with  considerable 
distrust  and  suspicion.  We  are  not  satisfied  that  a  case  is  made  out, 
upon  the  proofs,  of  a  violation  of  the  neutrality  laws  of  the  United 
States,  and  must,  therefore,  reverse  the  decree  below,  and  enter  a  de- 
cree dismissing  the  libel.^ 

5  An  appeal  was  taken  by  the  2:overnment  from  the  decision  of  the  Circuit 
Court  to  the  Supreme  Court  of  the  United  States,  but  was  not  prosecuted  to 
a  hearing,  being  dismissed  by  consent,  November  9,  1868. 

For  a  criticism  on  Judge  Betts'  ruling,  see  an  article  in  the  North  American 
Review  for  October,  1866  (vol.  103,  p.  488). 

"The  substance  of  the  evidence  adduced  by  the  government  was  briefly  as 
follows:  The  Meteor  was  a  swift  seagoing  steamship.  She  was  built  by  a 
number  of  public-spirited  citizens,  with  the  intention  of  offering  her  to  the 
United  States  government,  for.  the  purpose  of  pursuing*  and  destroying  the  Ala- 
bama. To  this  end  she  was  capable  of  cari-ying  a  moderate  armament ;  but 
her  chief  merit  lay  in  her  speed,  to  which  every  other  consideration  had  been 
made  subordinate.  Before  she  was  finished,  the  need  for  such  vessels  had 
ceased.  She  had  since  been  used  by  government  as  a  transport  ship  for  troops, 
and  afterward  had  been  employed  as  a  freighting  vessel,  in  the  merchant 
service,  between  home  ports.  Originally  two  Parrott  guns  had  been  placed 
fm  board  her,  which  had  been  subsequently  removed ;  and  beyond  this,  she 
had  received  no  warlike  equipment  whatsoever.  She  had  on  board  750  tons 
of  coal,  being  about  12  tons  per  day  for  the  shortest  voyage  to  Panama,  and 
provisions  for  six  months,  a  portion  of  which  were  marked  "reserved  stores." 
She  was  for  sale  for  several  months.  There  was  war  between  Spain  and 
Chile,  pending  which  a  certain  accredited  agent  of  Chile,  in  New  York,  wished 
to  buy  stanch  seagoing  steamers;  the  Meteor,  among  others,  attracted  his 
attention  (though  through  no  act  of  her  owners),  and  suited  his  purpose 
*  *  *  The  owners,  the* Messrs.  Forbes,  were  ready  and  willing  to  sell  the 
vessel  to  this  Chilean  agent;  but  she  was  to  be  sold  and  delivered  in  pre- 
cisely the  condition  in  which  she  was  then  lying  at  the  wharf,  for  the  full 
price  in  cash  down.  This  money  could  not  be  thus  raised.  The  whole  plan, 
for  this  reason,  fell  through;  and  the  negotiations  conclusively  ceased.  The 
vessel  with  the  coal  and  provisions  before  named,  was  cleared  or  about  to 
clear  for  Panama,  when  she  was;  seized  under  the  libel.  The  informer  was  one 
of  the  three  disappointed  adventurers.  The  evidence  was  explicit  to  the  ef- 
fect that  in  the  negotiations  with  the  Messrs.  Forbes,  nothing  was  for  a 
moment  contemplated,  save  an  outright  sale  of  the  vessel  as  she  lay,  for  cash 
down  in  full.  It  was  further  explicit  and  consistent,  to  the  effect  that  the 
negotiations  concerning  the  sale  were  understood  by  all  parties  to  have  been 
finally  and  totally  abandoned,  without  having  accomplished  anything,  a  long 
time  before  the  seizure."    3  American  Law  Review,  234,  236,  237  (1SG9). 

In  a  note  to  his  edition  of  Wheaton's  Elements  of  International  Law,  Mr. 
Dana  said: 

"It  will  be  seen  at  once,  by  these  abstract  definitions,  that  our  rules  do  not 
interfere  with  bona  fide  commercial  dealings  in  contraband  of  war.  An  Amer- 
ican merchant  may  build  and  fully  arm  a  vessel,  and  supply  her  with  stores, 
and  offer  her  for  sale  in  our  own  market.  If  he  does  any  acts,  as  an  agent  or 
servant  of  a  belligerent,  or  in  pursuance  of  an  arrangement  or  understanding 
with  a  belligerent,  that  she  shall  be  employed  in  hostilities  when  sold,  he  is 


830  EIGHTS  AND   DUTIES   OF  NATIONS   IN   TIME   OF   WAR         (Part  3 


THE  THREE  FRIENDS. 

(Supreme  Court  of  the  United  States,  1897.    166  U.  S.  1,  17  Sup.  Ct.  495, 

41  L.  Ed.  897.) 

The  'steamer  Three  Friends  was  seized  November  7,  1896,  by  the 
collector  of  customs  for  the  district  of  St.  John's,  Florida,  as  forfeited 
to  the  United  States  under  section  5283  of  the  Revised  Statutes,  and 
thereupon,  November  12,  was  libeled  on  behalf  of  the  United  States 
in  the  District  Court  for  the  Southern  District  of  Florida.     *     *     * 

Mr.  Chief  Justice  Fui,lEr  delivered  the  opinion  of  the  court.^  *  *  * 

We  agree  with  the  district  judge  that  the  contention  that  forfeiture 
under  section  5283  depends  upon  the  conviction  of  a  person  or  persons 
for  doing  the  acts  denounced  is  untenable.  The  suit  is  a  civil  suit  in 
rem  for  the  condemnation  of  the  vessel  only,  and  is  not  a  criminal 
prosecution.  The  two  proceedings  are  wholly  independent  and  pur- 
sued in  different  courts,  and  the  result  in  each  might  be  different.  In- 
deed, forfeiture  might  be  decreed  if  the  proof  showed  the  prohibited 
acts  were  committed  though  lacking  as  to  the  identity  of  the  particular 
person  by  whom  they  were  committed.  The  Palmyra,  12  Wheat.  1, 
14,  6  L.  Ed.  531 ;  The  Ambrose  Light  (D.  C.)  25  Fed.  408;  The  Me- 
teor, 17  Fed.  Cas.  178. 

The  Palmyra  was  a  case  of  a  libel  of  information  against  the  vessel 
to  forfeit  her  for  a  piratical  aggression,  under  certain  acts  of  Congress 
which  made  no  provision  for  the  personal  punishment  of  the  offenders, 
but  it  was  held  that,  even  if  such  provision  had  been  made,  conviction 
would  not  have  been  necessary  to  the  enforcement  of  forfeiture.  And 
Mr.  Justice  Story,  delivering  the  opinion,  said :  "It  is  well  known,  that 
at  the  common  law,  in  many  cases  of  felonies,  the  party  forfeited  his 
goods  and  chattels  to  the  crown.  The  forfeiture  did  not,  strictly  speak- 
ing, attach  in  rem ;  but  it  was  a  part,  or  at  least  a  consequence,  of  the 
judgment  of  conviction.  It  is  plain  from  this  statement,  that  no  right 
to  the  goods  and  chattels  of  the  felon  could  be  acquired  by  the  crown 
by  the  mere  commission  of  the  offence ;  but  the  right  attached  only  by 
the  conviction  of  the  offender.  The  necessary  result  was,  that  in  every 
case  where  the  crown  sought  to  recover  such  goods  and  chattels,  it 
was  indispensable  to  establish  its  right  by  producing  the  record  of 

guilty.  He  may,  without  violating  our  law,  send  out  such  a  vessel,  so  equip- 
ped, under  the  flag  and  papers  of  his  own  country,  with  no  more  force  of  crew 
than  is  suitable  for  navigation,  with  no  right  to  resist  search  or  seizure,  and 
to  take  the  chances  of  capture  as  contraband  merchandise,  of  blockade,  and 
of  a  market  in  a  belligerent  port.  *  *  *  Such  a  trade  in  contraband,  a 
belligerent  may  cut  off  by  cruising  the  seas  and  by  blockading  his  enemy's 
ports.  But,  to  protect  himself  against  vessels  sailing  out  of  a  neutral  port  to 
commit  hostilities,  it  would  be  necessary  for  him  to  hover  off  the  ports  of  the 
neutral;  and,  to  do  that  effectually,  he  must  maintain  a  kind  of  blockade  of 
the  neutral  coast,  which,  as  neutrals  will  not  permit,  they  ought  not  to  give 
occasion,  for."    Page  563. 

8  Part  of  the  opinion  dealing  with  questions  of  procedure  has  been  omitted. 


Ch.  15)       BELLIGERENT  USE  OF  NEUTRAL  TERRITORY  831 

the  judgment  of  conviction.  In  the  contemplation  of  the  common 
law,  the  offender's  right  was  not  divested  until  the  conviction.  But 
this  doctrine  never  was  applied  to  seizures  and  forfeitures,  created  by 
statute  in  rem,  cognizable  on  the  revenue  side  of  the  Exchequer.  The 
thing  is  here  primarily  considered  as  the  offender,  or  rather  the  offence 
is  attached  primarily  to  the  thing;  and  this  whether  the  offence  be 
malum  prohibitum  or  malum  in  se.  The  same  principle  applies  to  pro- 
ceedings in  rem,  on  seizures  in  the  Admiralty.  Many  cases  exist,  where 
the  forfeiture  for  acts  done  attaches  solely  in  rem,  and  there  is  no  ac- 
companying penalty  in  personam.  Many  cases  exist  where  there  is 
both  a  forfeiture  in  rem  and  a  personal  penalty.  But  in  neither  class 
of  cases  has  it  ever  been  decided  that  the  prosecutions  were  dependent 
upon  each  other.  But  the  practice  has  been  and  so  this  court  under- 
stands the  law  to  be,  that  the  proceeding  in  rem  stands  independent  of, 
and  wholly  unaffected  by,  any  criminal  proceeding  in  personam."  And 
see  The  Malek  Adhel,  2  How.  210,  11  L.  Ed.  239;  United  States  v. 
The  Little  Charles,  1  Brock.  347,  Fed.  Cas.  No.  15,612. 

The  libel  alleged  that  the  vessel  was  "furnished,  fitted  out,  and  armed, 
with  intent  that  she  should  be  employed  in  the  service  of  a  certain  peo- 
ple, to  wit,  certain  people  then  engaged  in  armed  resistance  to  the  gov- 
ernment of  the  king  of  Spain,  in  the  island  of  Cuba,  to  cruise  and  com- 
mit hostilities  against  the  subjects,  citizens,  and  property  of  the  king 
of  Spain,  in  the  island  of  Cuba,  with  whom  the  United  States  are  and 
were  at  that  date  at  peace." 

The  learned  District  Judge  held  that  this  was  insufficient  under  sec- 
tion 5283,  because  it  was  not  alleged  "that  said  vessel  had  been  fitted 
out  with  intent  that  she  be  employed  in  the  service  of  a  foreign  prince 
or  state,  or  of  any  colony,  district,  or  people  recognized  as  such  by  the 
political  power  of  the  United  States." 

In  Wiborg  V.  United  States,  163  U.  S.  632,  16  Sup.  Ct.  1127,  1197, 
41  L.  Ed.  289,  which  was  an  indictment  under  section  5286,  we  re- 
ferred to  the  eleven  sections  from  5281  to  5291,  inclusive,  which  con- 
stitute title  LXVII  of  the  Revised  Statutes,  and  said:  "The  statute 
was  undoubtedly  designed  in  general  to  secure  neutrality  in  wars  be- 
tween two  other  nations,  or  between  contending  parties  recognized  as 
belligerents,  but  its  operation  is  not  necessarily  dependent  on  the  ex- 
istence of  such  state  of  belligerency,"  and  the  consideration  of  the  pres- 
ent case  arising  under  section  5283  confirms  us  in  the  view  thus  ex- 
pressed. 

It  is  true  that  in  giving  a  resume  of  the  sections,  we  referred  to  sec- 
tion 5283  as  dealing  "with  fitting  out  and  arming  vessels  in  this  coun- 
try in  favor  of  one  foreign  power  as  against  another  foreign  power 
with  which  we  are  at  peace,"  but  that  was  matter  of  general  descrip- 
tion, and  the  entire  scope  of  the  section  was  not  required  to  be  indicated. 

The  title  is  headed  "Neutrality,"  and  usually  called,  by  way  of  con- 
venience, the  "Neutrality  Act,"  as  the  term  "Foreign  Enlistment  Act" 


832  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   WAR         (Part  3 

is  applied  to  the  analogous  British  statute,  but  this  does  not  operate 
as  a  restriction. 

Neutrality,  strictly  speaking,  consists  in  abstinence  from  any  partic- 
ipation in  a  public,  private  or  civil  war,  and  in  impartiality  of  conduct 
toward  both  parties,  but  the  maintenance  unbroken  of  peaceful  relations 
between  two  powers,  when  the  domestic  peace  of  one  of  them  is  dis- 
turbed, is  not  neutrality  in  the  sense  in  which  the  word  is  used  when 
the  disturbance  has  acquired  such  head  as  to  have  demanded  the  rec- 
ognition of  belligerency.  And,  as  mere  matter  of  municipal  adminis- 
tration, no  nation  can  permit  unauthorized  acts  of  war  within  its  ter- 
ritory in  infraction  of  its  sovereignty,  while  good  faith  towards  friendly 
nations  requires  their  prevention. 

Hence,  as  Mr.  Attorney  General  Hoar  pointed  out  (13  Opinions,  177, 
178),  though  the  principal  object  of  the  act  was  "to  secure  the  perform- 
ance of  the  duty  of  the  United  States,  under  the  law  of  nations,  as  a 
neutral  nation  in  respect  of  foreign  powers,"  the  act  is  nevertheless  an 
act  "to  punish  certain  offences  against  the  United  States  by  fines,  im- 
prisonmicnt,  and  forfeitures,  and  the  act  itself  defines  the  precise  nature 
of  those  offences." 

These  sections  were  brought  forward  from  the  act  of  April  20,  1818, 
3  Stat.  447,  c.  88,  entitled,  "iVn  act  in  addition  to  the  'Act  for  the  pun- 
ishment of  certain  crimes  against  the  United  States,'  and  to  repeal  the 
acts  therein  mentioned,"  which  was  derived  from  the  act  of  June  5, 
1794,  1  Stat.  381,  c.  50,  entitled,  "An  act  in  addition  to  the  'Act  for 
the  punishment  of  certain  crimes  against  the  United  States,'  "  and  the 
act  of  March  3,  1817,  3  Stat.  370,  c.  58,  entitled,  "An  act  more  effectu- 
ally to  preserve  the  neutral  relations  of  the  United  States."  The  piracy 
act  of  March  3,  1819,  3  Stat.  510,  c.  77,  Rev.  Stat.  §§  4293,  4294,  4295, 
4296,  5368,  supplemented  the  acts  of  1817  and  1818. 

The  act  of  1794,  which  has  been  generally  recognized  as  the  first 
instance  of  municipal  legislation  in  support  of  the  obligations  of  neu- 
trality, and  a  remarkable  advance  in  the  development  of  international 
law,  was  recommen'ded  to  Congress  by  President  Washington  in  his 
annual  address  on  December  3,  1793,  was  drawn  by  Hamilton,  and 
passed  the  Senate  by  the  casting  vote  of  Vice  President  Adams.  Ann. 
3d  Cong.  11,  67.  Its  enactment  grew  out  of  the  proceedings  of  the 
then  French  minister,  which  called  forth  President  Washington's  proc- 
lamation of  neutrality  in  the  spring  of  1793.  And  though  the  law  of 
nations  had  been  declared  by  Chief  Justice  Jay,  in  his  charge  to  the 
grand  jury  at  Richmond,  May  22,  1793  (Wharton's  State  Trials,  49,  56), 
and  by  Mr.  Justice  Wilson,  Mr.  Justice  Iredell  and  Judge  Peters,  on 
the  trial  of  Henfield  in  July  of  that  year  (Id.  66,  84),  to  be  capable 
of  being  enforced  in  the  courts  of  the  United  States  criminally,  as 
well  as  civilly,  without  further  legislation,  yet  it  was  deemed  advisable 
to  pass  the  act  in  view  of  controversy  over  that  position,  and,  more- 
over, in  order  to  provide  a  comprehensive  code  in  prevention  of  acts 


Ch.  15)       BELLIGERENT  USE  OF  NEUTRAL  TERRITORY  833 

by  individuals  within  our  jurisdiction  inconsistent  with  our  own  au- 
thority, as  well  as  hostile  to  friendly  powers. 

Section  5283  of  the  Revised  Statutes  is  as  follows : 

"Every  person  who,  within  the  limits  of  the  United  States,  fits  out 
and  arms,  or  attempts  to  fit  out  and  arm,  or  procures  to  be  fitted  out 
and  armed,  or  knowingly  is  concerned  in  the  furnishing,  fitting  out 
or  arming,  of  any  vessel  with  intent  that  such  vessel  shall  be  employed 
in  the  service  of  any  foreign  prince  or  state,  or  of  any  colony,  district 
or  people,  to  cruise  or  commit  hostilities  against  the  subjects,  citizens 
or  property  of  any  foreign  prince  or  state,  or  of  any  colony,  district 
or  people,  with  whom  the  United  States  are  at  peace,  or  who  issues 
or  delivers  a  commission  within  the  territory  or  jurisdiction  of  the 
United  States,  for  any  vessel,  to  the  intent  that  she  may  be  so  em- 
ployed, shall  be  deemed  guilty  of  a  high  misdemeanor,  and  shall  be 
fined  not  more  than  ten  thousand  dollars,  and  imprisoned  not  more 
than  three  years.  And  every  such  vessel,  her  tackle,  apparel  and  fur- 
niture, together  with  all  materials,  arms,  ammunition  and  stores,  which 
may  have  been  procured  for  the  building  and  equipment  thereof,  shall 
be  forfeited;  one  half  to  the  use  of  the  informer,  and  the  other  half 
to  the  use  of  the  United  States."  * 

By  referring  to  section  3  of  the  act  of  June  5,  1794,  section  1  of 
the  act  of  1817,  and  section  3  of  the  act  of  1818,  it  will  be  seen  that 
the  words  "or  of  any  colony,  district,  or  people"  were  inserted  in  the 
original  law  by  the  act  of  1817,  carried  forward  by  the  act  of  1818,  and 
so  into  section  5283. 

The  immediate  occasion  of  the  passage  of  the  act  of  March  3,  1817, 
appears  to  have  been  a  communication,  under  date  of  December  20, 
1816,  from  the  Portuguese  minister  to  Mr.  Monroe,  then  Secretary  of 
State,  informing  him  of  the  fitting  out  of  privateers  at  Baltimore  to 
act  against  Portugal,  in  case  it  should  turn  out  that  that  government 
was  at  war  with  the  "self-styled  government  of  Buenos  Ayres,"  and 
soliciting  "the  proposition  to  Congress  of  such  provisions  of  law  as 

♦Congress  re-enacted  the  neutrality  laws,  with  very  slight  dififerences  in 
wording,  in  sections  9-18  of  the  Act  to  codify,  revise  and  amend  the  penal 
laws  of  the  United  States,  approved  March  4,  1909  (United  States  Statutes  at 
Large,  vol.  35,  p.  1088  [U.  S.  Comp.  St.  §§  10173-10182]).  Subsequent  to  the 
outbreak  of  the  war  with  Germany,  additional  legislation  was  enacted  on  the 
subject,  to  wit,  the  Act  of  May  7,  1917,  and  Title  V  of  the  Act  of  June  15,  1917 
(United  States  Statutes  at  Large,  vol.  40.  pp.  39  and  221  [U.  S.  Comp.  St.  1918, 
U.  S.  Comp.  St.  Ann.  Supp.  1919,  §§  10174,  10182b-101S2i]). 

The  latter  act  repealed  a  joint  resolution  of  Congress  of  March  4,  1915,  em- 
powering the  President  to  better  enforce  and  maintain  the  neutrality  of  the 
United  States. 

A  joint  resolution  approved  March  14,  1912,  relates  to  the  export  of  arms  to 
an  American  country  in  which  conditions  of  domestic  violence  exist,  and 
which  the  President  finds  are  promoted  by  the  use  of  arms  and  munitions  of 
war  procured  from  the  United  States  (United  States  Statutes  at  Large,  vol.  37, 
p.  630  [Comp.  St.  §§  7677,  7678]). 

Scorr  Int. Law— 53 


834  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME   OF  WAR         (Part  3 

will  prevent  such  attempts  for  the  future."  On  December  26,  1816, 
President  Madison  sent  a  special  message  to  Congress,  in  which  he 
referred  to  the  inefficacy  of  existing  laws  "to  prevent  violations  of  the 
obligations  of  the  United  States  as  a  nation  at  peace  towards  bellig- 
erent parties  and  other  unlawful  acts  on  the  high  seas  by  armed  ves* 
sels  equipped  within  the  waters  of  the  United  States,"  and,  "with  a 
view  to  maintain  more  effectually  the  respect  due  to  the  laws,  to  the 
character,  and  to  the  neutral  and  pacific  relations  of  the  United  States," 
recommended  further  legislative  provisions.  This  message  was  trans- 
mitted to  the  minister  December  27,  and  he  was  promptly  officially 
informed  of  the  passage  of  the  act  in  the  succeeding  month  of  March. 
Geneva  Arbitration,  Case  of  the  United  States,  138.  In  Mr.  Dana's 
elaborate  note  to  section  439  of  his  edition  of  Wheaton,  it  is  said  that  the 
words  "colony,  district,  or  people"  were  inserted  on  the  suggestion  of 
the  Spanish  minister  that  the  South  American  provinces  in  revolt  and 
not  recognized  as  independent  might  not  be  included  in  the  word 
"state."  Under  the  circumstances  this  act  was  entitled  as  "to  preserve 
the  neutral  relations  of  the  United  States,"  while  the  title  of  the  act 
of  1794  described  it  as  "in  addition"  to  the  Crimes  Act  of  April  30, 
1790,  1  Stat.  112,  c.  9,  and  the  act  of  1818  was  entitled  in  the  same 
way.  But  there  is  nothing  in  all  this  to  indicate  that  the  words  "col- 
ony, district,  or  people"  had  -reference  solely  to  communities  whose 
belligerency  had  been  recognized,  and  the  history  of  the  times,  an  in- 
teresting review  of  which  has  been  furnished  us  by  the  industry  of 
counsel,  does  not  sustain  the  view  that  insurgent  districts  or  bodies, 
unrecognized  as  belligerents,  were  not  intended  to  be  embraced.  On 
the  contrary,  the  reasonable  conclusion  is  that  the  insertion  of  the 
words  "district  or  people"  should  be  attributed  to  the  intention  to  in- 
clude such  bodies,  as,  for  instance,  the  so-called  Oriental  Republic  of 
Artigas,  and  the  governments  of  Petion  and  Christophe,  whose  attitude 
had  been  passed  on  by  the  courts  of  New  York  more  than  a  year  be- 
fore in  Hoyt  v.  Gelston,  13  Johns.  141,  Gelston  v.  Hoyt,  13  Johns.  561, 
which  was  then  pending  in  this  court  on  writ  of  error.  There  was  no 
reason  why  they  should  not  have  been  included,  and  it  is  to  the  ex- 
tended enumeration  as  covering  revolutionary  bodies  laying  claim  to 
rights  of  sovereignty,  whether  recognized  or  unrecognized,  that  Chief 
Justice  Marshall  manifestly  referred  in  saying,  in  The  Gran  Para,  7 
Wheat.  471,  489,  5  L.  Ed.  501,  that  the  act  of  1817  "adapts  the  previous 
laws  to  the  actual  situation  of  the  world."  At  all  events.  Congress  im- 
posed no  limitation  on  the  words  "colony,  district,  or  people,"  by  re- 
quiring political  recognition. 

Of  course  a  political  community  whose  independence  has  been  recog- 
nized is  a  "state"  under  the  act ;  and,  if  a  body  embarked  in  a  revolu- 
tionary political  movement,  whose  independence  has  not  been,  but 
whose  belligerencey  has  been  recognized,  is  also  embraced  by  that  term, 
then  the  words  "colony,  district,  or  people,"  instead  of  being  limited 

Scott  Int.Law 


Ch.  15)       BELLIGERENT  USE  OP  NEUTRAL  TERRITORY  835 

to  a  political  community  which  has  been  recognized  as  a  belligerent, 
must  necessarily  be  held  applicable  to  a  body  of  insurgents  associated 
together  in  a  common  political  enterprise  and  carrying  on  hostilities 
against  the  parent  country,  in  the  effort  to  achieve  independence,  al- 
though recognition  of  belligerency  has  not  been  accorded. 

And  as  agreeably  to  the  principles  of  international  law  and  the  rea- 
son of  the  thing,  the  recognition  of  belligerency,  while  not  conferring 
all  the  rights  of  an  independent  state,  concedes  to  the  government  rec- 
ognized the  rights,  and  imposes  upon  it  the  obligations,  of  an  inde- 
pendent state  in  matters  relating  to  the  war  being  waged,  no  adequate 
ground  is  perceived  for  holding  that  acts  in  aid  of  such  a  government 
are  not  in  aid  of  a  state  in  the  sense  of  the  statute. 

Contemporaneous  decisions  are  not  to  the  contrary,  though  they 
throw  no  special  light  upon  the  precise  question. 

Gelston  v.  Hoyt,  3  Wheat.  246,  4  L.  Ed.  381,  decided  at  February 
term,  1818  (and  below  January  and  February,  1816),  was  an  action  of 
trespass  against  the  collector  and  surveyor  of  the  port  of  New  York  for 
seizing  the  'ship  American  Eagle,  her  tackle,  apparel,  etc.  The  seizure 
was  made  July  10,  1810,  by  order  of  President  Madison  under  section 
three  of  the  act  of  1794,  corresponding  to  section  5283.  The  ship  was 
intended  for  the  service  of  Petion  against  Christophe,  who  had  divided 
the  island  of  Hayti  between  them  and  were  engaged  in  a  bloody  con- 
test, but  whose  belligerency  had  not  been  recognized.  It  was  held  that 
the  service  of  "any  foreign  prince  or  state"  imported  a  prince  or  state 
which  had  been  recognized  by  the  government,  and  as  there  was  no 
recognition  in  any  manner,  the  question  whether  the  recognition  of 
the  belligerency  of  a  de  facto  sovereignty  would  bring  it  within  those 
words,  did  not  arise. 

The  case  of  The  Estrella,  4  Wheat.  298,  4  L.  Ed.  574,  involved  the 
capture  of  a  Venezuelan  privateer  on  April  24,  1817.  There  was  a 
recapture  by  an  American  vessel,  and  the  prize  thus  came  before  the 
court  at  New  Orleans  for  adjudication.  The  privateer  was  found  to 
have  a  regular  commission  from  Bolivar,  issued  as  early  as  1816,  but 
•it  had  violated  section  two  of  the  act  of  1794,  which  is  the  same  as  sec- 
tion two  of  the  act  of  1818,  omitting  the  words  "colony,  district,  or 
people"  (and  is  now  section  5282  of  the  Revised  Statutes),  by  enlisting 
men  at  New  Orleans,  provided  Venezuela  was  a  state  within  the  mean- 
ing of  that  act.  The  decision  proceeded  on  the  ground  that  Venezuela 
was  to  be  so  regarded  on  the  theory  that  recognition  of  belligerency 
made  the  belligerent  to  that  intent  a  state. 

In  The  Nueva  Anna  and  Liebre,  6  Wheat.  193,  5  L.  Ed.  239,  the 
record  of  a  prize  court  at  "Galveztown,"  constituted  under  the  author- 
ity of  the  "Mexican  Republic,"  was  offered  in  proof,  and  this  court 
refused  to  recognize  the  belligerent  right  claimed,  because  our  govern- 
ment had  not  acknowledged  "the  existence  of  any  Mexican  republic 
or  state  at  war  with  Spain" ;    and  in  The  Gran  Para,  7  Wheat.  471, 


836  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR  (Part  3 

5  L.  Ed.  501,  Chief  Justice  Marshall  referred  to  Buenos  Ayres  as  a 
state  within  the  meaning  of  the  act  of  1794. 

Even  if  the  word  "state"  as  previously  employed  admitted  of  a  less 
liberal  signification,  why  should  the  meaning  of  the  words  "colony, 
district,  or  people"  be  confined  only  to  parties  recognized  as  belligerent? 
Neither  of  these  words  is  used  as  equivalent  to  the  word  "state,"  for 
they  were  added  to  enlarge  the  scope  of  a  statute  which  already  con- 
tained that  word.  The  statute  does  not  say  foreign  colony,  district,  or 
people,  nor  was  it  necessary,  for  the  reference  is  to  that  which  is  part 
of  the  dominion  of  a  foreign  prince  or  state,  though  acting  in  hostility 
to  such  prince  or  state.  Nor  are  the  words  apt  if  confined  to  a  bellig- 
erent. As  argued  by  counsel  for  the  government,  an  insurgent  colony 
under  the  act  is  the  same  before  as  after  the  recognition  of  belligerency, 
as  shown  by  the  instance  of  the  colonies  of  Buenos  Ayres  and  Para- 
guay, the  belligerency  of  one  having  been  recognized,  but  not  of  the 
other,  while  the  statute  was  plainly  applicable  to  both.  Nor  is  district 
an  appropriate  designation  of  a  recognized  power  de  facto,  since  such  a 
power  would  represent  not  the  territory  actually  held  but  the  territory 
covered  by  the  claim  of  sovereignty.  And  the  word  "people,"  when 
not  used  as  the  equivalent  of  state  or  nation,  must  apply  to  a  body  of 
persons  less  than  a  state  or  nation,  and  this  meaning  would  be  satisfied 
by  considering  it  as  applicable  to  any  consolidated  poHtical  body. 

In  United  States  v.  Ouincy,  6  Pet.  445,  467,  8  L.  Ed.  458,  an  indict- 
ment under  the  third  section  of  the  act  of  1818,  the  court  disposed  of 
the  following,  among  other  points,  thus : 

"The  last  instruction  or  opinion  asked  on  the  part  of  the  defendant 
was :  That  according  to  the  evidence  in  the  cause,  the  United  Provinces 
of  Rio  de  la  Plata  is,  and  was  at  the  time  of  the  offence  alleged  in  the 
indictment,  a  government  acknowledged  by  the  United  States,  and  thus 
was  a  'state'  and  not  a  'people'  within  the  meaning  of  the  act  of  Con- 
gress under  which  the  defendant  is  indicted ;  the  word  'people'  in  that 
act  being  intended  to  describe  communities  under  an  existing  govern- 
ment not  recognized  by  the  United  States ;  and  that  the  indictment 
therefore  cannot  be  supported  on  this  evidence. 

"The  indictment  charges  that  the  defendant  was  concerned  in  fitting 
out  the  Bolivar  with  intent  that  she  should  be  employed  in  the  service 
of  a  foreign  'people' ;  that  is  to  say,  in  the  service  of  the  United  Prov- 
inces of  Rio  de  la  Plata.  It  was  in  evidence,  that  the  United  Provinces 
of  Rio  de  la  Plata  had  been  regularly  acknowledged  as  an  independent 
nation  by  the  executive  department  of  the  government  of  the  United 
States,  before  the  year  1827.  And  tlierefore  it  is  argued  that  the  word 
'people'  is  not  properly  applicable  to  that  nation  or  power. 

"The  objection  is  one  purely  technical,  and  we  think  not  well  found- 
ed. The  word  'people,'  as  here  used,  is  merely  descriptive  of  the  power 
in  whose  service  the  vessel  was  intended  to  be  employed;  and  it  is 
one  of  the  denominations  applied  by  the  act  of  Congress  to  a  foreign 


Ch.  15)       BELLIGERENT  USE  OF  NEUTRAL  TERRITORY  837 

po\7er.  The  words  are,  'in  the  service  of  any  foreign  prince  or  state, 
or  of  any  colony,  district,  or  people.'  The  application  of  the  word 
'people'  is  rendered  sufificiently  certain  by  what  follows  under  the  vide- 
licet, 'that  is  to  say,  the  United  Provinces  of  Rio  de  la  Plata.'  This 
particularizes  that  which  by  the  word  'people'  is  left  too  general.  The 
descriptions  are  no  way  repugnant  or  inconsistent  with  each  other,  and 
may  well  stand  together.  That  which  comes  under  the  videlicet  only 
serves  to  explain  v^diat  is  doubtful  and  obscure  in  the  word  'people.'  " 

All  that  was  decided  was  that  any  Qbscurity  in  the  word  "people" 
as  applied  to  a  recognized  government  was  cured  by  the  videlicet.* 

Nesbitt  v.  Lushington,  4  T.  R.  783,  was  an  action  on  a  policy  of  in- 
surance in  the  usual  form,  and  among  the  perils  insured  against  were 
"pirates,  rovers,  thieves,"  and  "arrests,  restraints,  and  detainments  of 
all  kings,  princes,  and  people,  of  what  nation,  condition,  or  quality  so- 
ever." The  vessel  with  a  cargo  of  corn  was  driven  into  a  port  and 
was  seized  by  a  mol)  who  assumed  the  government  of  her  and  forced 
the  captain  to  sell  the  corn  at  a  low  price.  It  was  ruled  that  this  was 
a  loss  by  pirates,  and  the  maxim  noscitur  a  sociis  was  applied  by  Lord 
Kenyon  and  Mr.  Justice  BuUer.  Mr.  Justice  BuUer  said :  "  'People' 
means  'the  supreme  power';  'the  power  of  the  country,'  whatever  it 
may  be.  This  appears  clear  from  another  part  of  the  policy;  for 
where  the  underwriters  insure  against  the  wrongful  acts  of  individuals, 
they  describe  them  by  the  names  of  'pirates,  rogues,  thieves';  then 
having  stated  all  the  individual  persons,  against  whose  acts  they  engage, 
they  mention  other  risks,  those  occasioned  by  the  acts  of  'kings,  princes, 
and  people  of  what  nation,  condition,  or  quality  soever.'  Those  words 
therefore  must  apply  to  'nations'  in  their  collective  capacity." 

As  remarked  in  the  brief  of  Messrs.  Richard  H.  Dana,  Jr.,  and 
Horace  Gray,  Jr.,  filed  by  Mr.  Gushing  in  Mauran  v.  Insurance  Co., 
6  Wall.  1,  18  L.  Ed.  836,  the  words  were  "doubtless  originally  inserted 
with  the  view  of  enumerating  all  possible  forms  of  government,  mon- 
archical, aristocratical,  and  democratic." 

The  British  P'oreign  EnHstment  Act,  59  Geo.  Ill,  c.  69,  was  bottomed 
on  the  act  of  1818,  and  the  seventh  section,  the  opening  portion  of 
which  corresponded  to  the  third  section  of  that  act.  Its  terms  were^. 
however,  considerably  broader  and  left  leps  to  construction.     But  we 

*In  the  same  case  Justice  Thompson,  ruling  on  another  point,  said  in  be- 
half of  the  Court:  "The  law  does  not  prohibit  armed  vessels  belonging  to 
citizens  of  the  United  States  from  sailing  out  of  our  ports ;  it  only  requires  the 
owners  to  give  security  (as  was  done  in  the  present  case)  that  such  vessels 
shall  not  be  employed  by  them  to  commit  hostilities  against  foreign  powers  at 
peace  with  the  United  States.  The  collectors  are  not  authorized  to  detain 
vessels,  although  manifestly  built  for  warlike  purposes,  and  about  to  depart 
from  the  United  Stares,  unless  circumstances  shall  render  it  probable  that 
such  vessels  are  intended  to  be  employed  by  the  owners  to  commit  hostilities 
against  some  foreign  power,  at  peace  with  the  United  States.  All  the  latitude, 
therefore,  necessary  for  commercial  purposes,  is  given  to  our  citizens;  and 
they  are  restrained  only  from  such  acts  as  are  calculated  to  involve  the 
country  in  war." 


838  RIGHTS   AND   DUTIES   OF  NATIONS  IN   TIME   OP  WAR         (Part  3 

think  the  words  "colony,  district,  or  people"  must  be  treated  as  equally 
comprehensive  in  their  bearing  here.* 

In  the  case  of  The  Salvador,  L.  R.  3  P.  C.  218,  the  Salvador  had 
been  seized  under  warrant  of  the  governor  of  the  Bahama  Islands  and 
proceeded  against  in  the  Vice  Admiralty  Court  there  for  breach  of  that 
section,  and  was,  upon  the  hearing  of  the  cause,  ordered  to  be  restored, 
the  court  not  being  satisfied  that  the  vessel  was  engaged,  within  the 
meaning  of  the  section,  in  aiding  parties  in  insurrection  against  a 
foreign  government,  as  such  parties  did  not  assume  to  exercise  the 
powers  of  government  over  any  portion  of  the  territory  of  such  gov- 
ernment. This  decision  was  overruled  on  appeal  by  the  Judicial  Com- 
mittee of  the  Privy  Council,  and  Lord  Cairns,  delivering  the  opinion, 
said: 

"It  is  to  be  observed  that  this  part  of  the  section  is  in  the  alterna- 
tive. The  ship  may  be  employed  in  the  service  of  a  foreign  prince, 
state,  or  potentate,  or  foreign  state,  colony,  province,  or  part  of  any 
province  or  people ;  that  is  to  say,  if  you  find  any  consolidated  body  in 
the  foreign  state,  whether  it  be  the  potentate,  who  has  the  absolute 
dominion,  or  the  government,  or  a  part  of  the  province,  or  of  the  peo- 
ple, or  the  whole  of  the  province  or  the  people  acting  for  themselves, 
that  is  sufficient.  But  by  way  of  alternative  it  is  suggested  that  there 
may  be  a  case  where,  although  you  cannot  say  that  the  province,  or 
the  people,  or  a  part  of  the  province  or  people  are  employing  the  ship, 
there  yet  may  be  some  person  or  persons  who  may  be  exercising,  or 
assuming  to  exercise,  powers  of  government  in  the  foreign  colony  or 
state,  drawing  the  whole  of  the  material  aid  for  the  hostile  proceedings 
from  abroad;  and,  therefore,  by  way  of  alternative,  it  is  stated  to  be 
sufficient,  if  you  find  the  ship  prepared  or  acting  in  the  service  of  'any 
person  or  persons  exercising,  or  assuming  to  exercise,  any  powers  of 
government  in  or  over  any  foreign  state,  colony,  province,  or  part  of 
any  province  or  people' ;  but  that  alternative  need  not  be  resorted  to, 
if  you  find  the  ship  is  fitted  out  and  armed  for  the  purpose  of  being 
'employed  in  the  service  of  any  foreign  state  or  people,  or  part  of  any 
province  or  people.'     *     *     * 

"It  may  be  (it  is  not  necessary  to  decide  whether  it  is  or  not)  that 
you  could  not  state  who  were  the  person  or  persons,  or  that  there  were 
any  person  or  persons  exercising,  or  assuming  to  exercise,  powers  of 
government  in  Cuba,  in  opposition  to  the  Spanish  authorities.  That 
ma}'  be  so;  their  lordships  express  no  opinion  upon  that  subject,  but 
they  will  assume  that  there  might  be  a  difficulty  in  bringing  the  case 
within  that  second  alternative  of  the  section,  but  their  lordships  are 
clearly  of  opinion  that  there  is  no  difficulty  in  bringing  the  case  under 

•As  the  British  Act  of  1819,  which  was  in  force  until  1870,  did  not  give 
adequate  powers  to  the  government,  Parliament  passed  on  August  9,  1870,  a 
new  Foreign  Enlistment  Act  (33  &  34  Vict.  c.  90),  which  is  still  in  force. 


Ch.  15)       BELLIGERENT  USB  OF  NEUTRAL  TERRITORY  839 

the  first  alternative  of  the  section,  because  their  lordships  find  these 
propositions  established  beyond  all  doubt — there  was  an  insurrection 
in  the  island  of  Cuba ;  there  were  insurgents  who  had  formed  them- 
selves into  a  body  of  people  acting  together,  undertaking  and  conduct- 
'  ing  hostilities ;  these  insurgents,  beyond  all  doubt,  formed  part  of  the 
province  or  people  of  Cuba ;  and  beyond  all  doubt  the  ship  in  question 
was  to  be  employed,  and  was  employed,  in  connection  with  and  in  the 
service  of  this  body  of  insurgents." 

We  regard  these  observations  as  entirely  apposite,  and  while  the 
word  "people"  may  mean  the  entire  body  of  the  inhabitants  of  a  state ; 
or  the  state  or  nation  collectively  in  its  political  capacity ;  or  the  rul- 
ing power  of  the  country ;  its  meaning  in  this  branch  of  the  section, 
taken  in  connection  with  the  words  "colony"  and  "district,"  covers 
in  our  judgment  any  insurgent  or  insurrectionary  "body  of  people  act- 
ing together,  undertaking  and  conducting  hostilities,"  although  its  bel- 
ligerency has  not  been  recognized.  Nor  is  this  view  otherwise  than 
confirmed  by  the  use  made  of  the  same  words  in  the  succeeding  part  of 
the  sentence,  for  they  are  there  employed  in  another  connection,  that 
is,  in  relation  to  the  cruising,  or  the  commission  of  hostilities,  "against 
the  subjects,  citizens,  or  property  of  any  foreign  prince  or  state,  or  of 
any  colony,  district,  or  people,  with  whom  the  United  States  are  at 
peace;"  and,  as  thus  used,  are  affected  by  obviously  different  consid- 
erations. If  the  necessity  of  recognition  in  respect  of  the  objects  of  hos- 
tilities, by  sea  or  land,  were  conceded,  that  would  not  involve  the 
concession  of  such  necessity  in  respect  of  those  for  whose  service  the 
vessel  is  fitted  out. 

Any  other  conclusion  rests  on  the  unreasonable  assumption  that  the 
act  is  to  remain  ineffectual  unless  the  government  incurs  the  restraints 
and  liabilities  incident  to  an  acknowledgment  of  belligerency.  On  the 
one  hand,  pecuniary  demands,  reprisals,  or  even  war,  may  be  the  con- 
sequence of  failure  in  the  performance  of  obligations  towards  a  friendly 
power,  while  on  the  other,  the  recognition  of  belligerency  involves  the 
rights  of  blockade,  visitation,  search,  and  seizure  of  contraband  arti- 
cles on  the  high  seas,  and  abandonment  of  claims  for  reparation  on 
account  of  damages  suffered  by  our  citizens  from  the  prevalence  of 
warfare. 

No  intention  to  circumscribe  the  means  of  avoiding  the  one  by  im- 
posing as  a  condition  the  acceptance  of  the  contingencies  of  the  other 
can  be  imputed. 

Belligerency  is  recognized  when  a  political  struggle  has  attained  a 
certain  magnitude  and  affects  the  interests  of  the  recognizing  power; 
and  in  the  instance  of  maritime  operations,  recognition  may  be  com- 
pelled, or  the  vessels  of  the  insurgents,  if  molesting  third  parties,  may 
be  pursued  as  pirates.  The  Ambrose  Light  (D.  C.)  25  Fed.  408;  3 
Whart.  Dig.  Int.  Law,  §  381 ;   and  authorities  cited. 

But  it  belongs  to  the  political  department  to  determine  when  bellig- 


§40  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   WAR         (Part  S 

erency  shall  be  recognized,  and  its  action  must  be  accepted  according 
to  the  terms  and  intention  expressed. 

The  distinction  between  recognition  of  belligerency  and  recognition 
of  a  condition  of  political  revolt,  between  recognition  of  the  existence 
of  war  in  a  material  sense  and  of  war  in  a  legal  sense,  is  sharply  illus- 
trated by  the  case  before  us.  For  here  the  political  department  has 
not  recognized  the  existence  of  a  de  facto  belligerent  power  engaged  in 
hostility  with  Spain,  but  has  recognized  the  existence  of  insurrectionary 
warfare  prevailing  before,  at  the  time  and  since  this  forfeiture  is  al- 
leged to  have  been  incurred. 

On  June  12,  1895,  a  formal  proclamation  was  issued  by  the  Presi- 
dent and  countersigned  by  the  Secretary  of  State,  informing  the  peo- 
ple of  the  United  States  that  the  island  of  Cuba  was  "the  seat  of  seri- 
ous civil  disturbances  accompanied  by  armed  resistance  to  the  author- 
ity of  the  established  government  of  Spain,  a  power  with  which  the 
United  States  are  and  desire  to  remain  on  terms  of  peace  and  amity" ; 
declaring  that  "the  laws  of  the  United  States  prohibit  their  citizens, 
as  well  as  all  others  being  within  and  subject  to  their  jurisdiction,  from 
taking  part  in  such  disturbances  adversely  to  such  established  govern- 
ment, by  accepting  or  exercising  commissions  for  warlike  service 
against  it,  by  enlistment  or  procuring  others  to  enlist  for  such  service, 
by  fitting  out,  or  arming,  or  procuring  to  be  fitted  out  and  armed  ships 
of  war  for  such  service,  by  augmenting  the  force  of  any  ship  of  war 
engaged  in  such  service  and  arriving  in  a  port  of  the  United  States, 
and  by  setting  on  foot  or  providing  or  preparing  the  means  for  military 
enterprises  to  be  carried  on  from  the  United  States  against  the  terri- 
tory of  such  government,"  and  admonishing  all  such  citizens  and  other 
persons  to  abstain  from  any  violation  of  these  laws. 

In  his  annual  message  of  December  2,  1895,  the  President  said : 

"Cuba  is  again  gravely  disturbed.  An  insurrection  in  some  respects 
more  active  than  the  last  preceding  revolt,  which  continued  from  1868 
to  1878,  now  exists  in  a  large  part  of  the  eastern  interior  of  the  island, 
menacing  even  some  populations  on  the  coast.  Besides  deranging  the 
commercial  exchanges  of  the  island,  of  which  our  country  takes  the 
predominant  share,  this  flagrant  condition  of  hostilities,  by  arousing 
sentimental  sympathy  and  inciting  adventurous  support  among  our  peo- 
ple, has  entailed  earnest  eft'ort  on  the  part  of  this-  government  to  en- 
force obedience  to  our  neutrality  laws,  and  to  prevent  the  territory  of 
the  United  States  from  being  abused  as  a  vantage  ground  from  which 
to  aid  those  in  arms  against  Spanish  sovereignty. 

"Whatever  may  be  the  traditional  sympathy  of  our  countrymen  as 
individuals  with  a  people  who  seem  to  be  struggling  for  larger  auton- 
omy and  greater  freedom,  deepened  as  such  sympathy  naturally  must 
be  in  behalf  of  our  neighbors,  yet  the  plain  duty  of  their  government 
is  to  observe  in  good  faith  the  recognized  obHgations  of  international 
relationship.    The  performance  of  this  duty  should  not  be  made  more 


Ch.  15)       BELLIGERENT  USE  OF  NEUTRAL  TERRITORY  841 

difficult  by  a  disregard  on  the  part  of  our  citizens  of  the  obligations 
growing  out  of  their  allegiance  to  their  country,  which  should  restrain 
them  from  violating  as  individuals  the  neutrality  which  the  nation  of 
which  they  are  members  is  bound  to  observe  in  its  relations  to  friendly 
sovereign  states.  Though  neither  the  warmth  of  our  people^S  sym- 
pathy with  the  Cuban  insurgents,  nor  our  loss  and  material  damage 
consequent  upon  the  futile  endeavors  thus  far  made  to  restore  peace 
and  order,  nor  any  shock  our  humane  sensibilities  may  have  received 
from  the  cruelties  which  appear  to  especially  characterize  this  sangui- 
nary and  fiercely  conducted  war,  have  in  the  least  shaken  the  determi- 
nation of  the  government  to  honestly  fulfill  every  international  obliga- 
tion, yet  it  is  to  be  earnestly  hoped,  on  every  ground,  that  the  devasta- 
tion of  armed  conflict  may  speedily  be  stayed,  and  order  and  quiet  re- 
stored to  the  distracted  island,  bringing  in  their  train  the  activity  and 
thrift  of  peaceful  pursuits." 

July  27,  1896,  a  further  proclamation  was  promulgated,  and  in  the 
annual  message  of  December  7,  1896,  the  President  called  attention  to 
the  fact  that  "the  insurrection  in  Cuba  still  continues  with  all  its  per- 
plexities," and  gave  an  extended  review  of  the  situation. 

We  are  thus  judicially  informed  of  the  existence  of  an  actual  con- 
flict of  arms  in  resistance  of  the  authority  of  a  government  with  which 
the  United  States  are  on  terms  of  peace  and  amity,  although  acknowl- 
edgment of  the  insurgents  as  belligerents  by  the  political  department 
has  not  taken  place ;  and  it  cannot  be  doubted  that,  this  being  so,  the 
act  in  question  is  applicable. 

We  see  no  justification  for  importing  into  section  5283  words  which 
it  does  not  contain  and  which  would  make  its  operation  depend  upon 
the  recognition  of  belligerency ;  and  while  the  libel  might  have  been 
drawn  with  somewhat  greater  precision,  we  are  of  opinion  that  it  should 
not  have  been  dismissed.     *     *     * 

The  decree  must  be  reversed,  and  the  cause  remanded  to  the  District 
Court,  with  directions  to  resume  custody  of  the  vessel  and  proceed 
with  the  case  in  conformity  with  this  opinion. 

Ordered  accordingly. 

Mr.  Justice  Harlan  dissenting.' 

'  The  dissenting  opinion  of  the  learned  Justice  is  omitted. 


842  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   WAR         (Part  3 


THE  "ALABAMA"  CLAIMS 

(Arbitration  under  Treaty  of  May  8,  1871,  between  the  United  States  and 
Great  Britain,  1872.    Papers  relating  to  the  Treaty  of  Washington,  IV,  49.) 

The  treaty  between  the  United  States  and  Great  Britain,  concluded 
May  8,  1871,  provided,  in  part,  as  follows :  * 

Article  L — Whereas  differences  have  arisen  between  the  government 
of  the  United  States  and  the  government  of  her  Britannic  Majesty, 
and  still  exist,  growing  out  of  the  acts  committed  by  the  several  ves- 
sels which  have  given  rise  to  the  claims  generically  known  as  the  "Ala- 
bama Claims"; 

And  whereas  her  Britannic  Majesty  has  authorized  her  High  Com- 
missioners and  Plenipotentiaries  to  express,  in  a  friendly  spirit,  the 
regret  felt  by  her  Majesty's  government  for  the  escape,  under  what- 
ever circumstances,  of  the  Alabama  and  other  vessels  from  British 
ports,  and  for  the  depredations  committed  by  those  vessels : 

Now,  in  order  to  remove  and  adjust  all  complaints  and  claims  on  the 
part  of  the  United  States,  and  to  provide  for  the  speedy  settlement  of 
such  claims  which  are  not  admitted  by  her  Britannic  Majesty's  Govern- 
ment, the  high  contracting  parties  agree  that  all  the  said  claims  grow- 
ing out  of  acts  committed  by  the  aforesaid  vessels  and  generically 
known  as  the  "Alabama  claims,"  shall  be  referred  to  a  tribunal  of  ar- 
bitration to  be  composed  of  five  arbitrators,  to  be  appointed  in  the  fol- 
lowing manner,  that  is  to  say:  One  shall  be  named  by  the  President 
of  the  United  States;  one  shall  be  named  by  her  Britannic  Majesty; 
his  Majesty  the  King  of  Italy  shall  be  requested  to  name  one ;  the  Presi- 
dent of  the  Swiss  Confederation  shall  be  requested  to  name  one ;   and 

his  Majesty  the  Emperor  of  Brazil  shall  be  requested  to  name  one. 
*     *     * 

Article  II. — The  arbitrators  shall  meet  at  Geneva,  in  Switzerland, 
at  the  earliest  convenient  day  after  they  shall  have  been  named,  and 
shall  proceed  impartially  and  carefully  to  examine  and  decide  all  ques- 
tions that  shall  be  laid  before  them  on  the  part  of  the  governments  of 
the  United  States  and  her  Britannic  Majesty  respectively.  All  ques- 
tions considered  by  the  tribunal,  including  the  final  award,  shall  be 
decided  by  a  majority  of  all  the  arbitrators.     *     *     * 

Article  VI. — In  deciding  the  matters  submitted  to  the  arbitrators 
they  shall  be  governed  by  the  following  three  rules,  which  are  agreed 
upon  by  the  high  contracting  parties  as  rules  to  be  taken  as  applicable 
to  the  case,  and  by  such  principles  of  international  law,  not  inconsistent 
therewith,  as  the  arbitrators  shall  determine  to  have  been  applicable 
to  the  case. 

8  1  Malloy's  Treaties,  Conventions,  International  Acts,  Protocols  and  Agree- 
ments between  the  United  States  and  Other  Powers  (1910)  700. 


Ch.  15)       BELLIGERENT  USE  OF  NEUTRAL  TERRITORY  843 


Rules 

A  neutral  government  is  bound — 

First,  To  use  due  diligence  to  prevent  the  fitting  out,  arming,  or 
equipping,  within  its  jurisdiction,  of  any  vessel  which  it  has  reasonable 
ground  to  believe  is  intended  to  cruise  or  to  carry  on  war  against  a 
power  with  which  it  is  at  peace ;  and  also  to  use  Hke  diligence  to  pre- 
vent the  departure  from  its  jurisdiction  of  any  vessel  intended  to  cruise 
or  carry  on  war  as  above,  such  vessel  having  been  specially  adapted, 
in  whole  or  in  part,  within  such  jurisdiction,  to  warlike  use. 

Secondly.  Not  to  permit  or  suffer  either  belligerent  to  make  use 
of  its  ports  or  waters  as  the  base  of  naval  operations  against  the  other, 
or  for  the  purpose  of  the  renewal  or  augmentation  of  military  supplies 
or  arms,  or  the  recruitment  of  men. 

Thirdly.  To  exercise  due  diligence  in  its  own  ports  and  waters,  and 
as  to  all  persons  within  its  jurisdiction,  to  prevent  any  violation  of  the 
foregoing  obligations  and  duties. 

Her  Britannic  Majesty  has  commanded  her  high  commissioners  and 
plenipotentiaries  to  declare  that  Her  Majesty's  government  cannot  as- 
sent to  the  foregoing  rules  as  a  statement  of  the  principles  of  inter- 
national law  which  were  in  force  at  the  time  when  the  claims  men- 
tioned in  article  I  arose,  but  that  Her  Majesty's  government,  in  order 
to  evince  its  desire  of  strengthening  the  friendly  relations  between  the 
two  countries  and  of  making  satisfactory  provision  for  the  future, 
agrees  that  in  deciding  the  questions  between  the  two  countries,  aris- 
ing out  of  those  claims,  the  arbitrators  should  assume  that  Her  Maj- 
esty's government  had  undertaken  to  act  upon  the  principles  set  forth 
in  these  rules. 

And  the  high  contracting  parties  agree  to  observe  these  rules  as 
between  themselves  in  future,  and  to  bring  them  to  the  knowledge  of 
other  maritime  powers,  and  to  invite  them  to  accede  to  them.     *     *     * 

Decision  and  Award 

*  *  *  The  tribunal  having  since  fully  taken  into  their  considera- 
tion the  treaty  and  also  the  cases,  counter-cases,  documents,  evidence, 
and  arguments,  and  likewise  all  other  communications  made  to  them  by 
the  two  parties  during  the  progress  of  their  sittings,  and  having  impar- 
tially and  carefully  examined  the  same,  has  arrived  at  the  decision 
embodied  in  the  present  award: 

Whereas,  having  regard  to  the  sixth  and  seventh  articles  of  the 
said  treaty,  the  arbitrators  are  bound  under  the  terms  of  the  said 
sixth  article,  "in  deciding  the  matters  submitted  to  them,  to  be  governed 
by  the  three  rules  therein  specified  and  by  such  principles  of  interna- 
tional law,  not  inconsistent  therewith  as  the  arbitrators  shall  deter- 
mine to  have  been  applicable  to  the  case" ; 


844  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   WAR         (Part  3 

And  whereas  the  "due  diligence,"  referred  to  in  the  first  and  third 
of  the  said  rules,  ought  to  be -exercised  by  neutral  governments  in  exact 
proportion  to  the  risks  to  which  either  of  the  belligerents  may  be 
exposed,  from  a  failure  to  fulfill  the  obligations  of  neutrality  on  their 
part; 

And  whereas  the  circumstances  out  of  which  the  facts  constituting 
the  subject-matter  of  the  present  controversy  arose  were  of  a  nature 
to  call  for  the  exercise  on  the  part  of  Her  Britannic  Majesty's  govern- 
ment of  all  possible  solicitude  for  the  observance  of  the  rights  and  the 
duties  involved  in  the  proclamation  of  neutrality  issued  by  Her  Majesty 
on  the  13th  day  of  May,  1861 ; 

And  whereas  the  effects  of  a  violation  of  neutrality,  committed  by 
means  of  the  construction,  equipment,  and  armament  of  a  vessel  are 
not  done  away  with  by  any  commission  which  the  government  of  the 
belligerent  power,  benefited  by  the  violation  of  neutrality,  may  after- 
wards have  granted  to  that  vessel;  and  the  ultimate  step,  by  which 
the  offense  is  completed,  cannot  be  admissible  as  a  ground  for  the 
absolution  of  the  offender,  nor  can  the  consummation  of  his  fraud 
become  the  means  of  establishing  his  innocence ; 

And  whereas  the  privilege  of  exterritoriality,  accorded  to  vessels 
of  war,  has  been  admitted  into  the  law  of  nations,  not  as  an  abso- 
lute right,  but  solely  as  a  proceeding  founded  on  the  principle  of  cour- 
tesy arid  mutual  deference  between  different  nations,  and,  therefore,  can 
never  be  appealed  to  for  the  protection  of  acts  done  in  violation  of 
neutrality ; 

And  whereas  the  absence  of  a  previous  notice  cannot  be  regarded 
as  a  failure  in  any  consideration  required  by  the  law  of  nations,  in 
those  cases  in  which  a  vessel  carries  with  it  its  own  condemnation ; 

And  whereas,  in  order  to  impart  to  any  supplies  of  coal  a  charac- 
ter inconsistent  with  the  second  rule,  prohibiting  the  use  of  neutral 
ports  or  waters,  as  a  base  of  naval  operations  for  a  belligerent,  it  is 
necessary  that  the  said  supplies  should  be  connected  with  special  cir- 
cumstances, of  time,  of  persons,  or  of  place,  which  may  combine  to 
give  them  such  character ; 

And  vv^hereas,  with  respect  to  the  vessel  called  the  Alabama,  it  clearly 
results  from  all  the  facts  relative  to  the  construction  of  the  ship,  at 
first  designated  by  the  number  "290,"  in  the  port  of  Liverpool,  and 
its  equipment  and  armament  in  the  vicinity  of  Terceira,  through  the 
agency  of  the  vessels  called  the  Agrippina  and  the  Bahama,  dispatched 
from  Great  Britain  to  that  end,  that  the  British  government  failed 
to  use  due  diligence  in  the  performance  of  its  neutral  obligations,  and 
especially  that  it  omitted,  notwithstanding  the  warnings  and  official  rep- 
resentations made  by  the  diplomatic  agents  of  the  United  States  dur- 
ing the  construction  of  the  said  numiber  "290,"  to  take  in  due  time 
any  effective  measures  of  prevention,  and  that  those  orders  which 


Ch.  15)       BELLIGERENT  USE  OF  NEUTRAL  TERRITORY  845 

it  did  give  at  last,  for  the  detention  of  the  vessel,  vi^ere  issued  so  late 
that  their  execution  was  not  practicable ; 

And  whereas,  after  the  escape  of  that  vessel,  the  measures  taken 
for  its  pursuit  and  arrest  were  so  imperfect  as  to  lead  to  no  result, 
and  therefore  cannot  be  considered  sufficient  to  release  Great  Britain 
from  the  responsibility  already  incurred; 

And  whereas,  in  spite  of  the  violations  of  the  neutrality  of  Great 
Britain,  committed  by  the  "290,"  this  same  vessel,  later  known  as  the 
Confederate  cruiser  Alabama,  was  on  several  occasions  freely  admitted 
into  the  ports  of  colonies  of  Great  Britain,  instead  of  being  proceeded 
against  as  it  ought  to  have  been  in  any  and  every  port  within  British 
jurisdiction  in  which  it  might  have  been  found; 

And  whereas  the  government  of  Her  Britannic  Majesty  cannot  jus- 
tify itself  for  a  failure  in  due  diligence  on  the  plea  of  insufficiency 
of  the  legal  means  of  action  which  it  possessed : 

Four  of  the  arbitrators  for  the  reasons  above  assigned,  and  the 
fifth,  for  reasons  separately  assigned  by  him,  are  of  opinion  that  Great 
Britain  has  in  this  case  failed,  by  omission,  to  fulfill  the  duties  pre- 
scribed in  the  first  and  the  third  of  the  rules,  established  by  the  sixth 
article  of  the  treaty  of  Washington. 

And  whereas,  with  respect  to  the  vessel  called  the  Florida,  it  re- 
sults from  all  the  facts  relative  to  the  construction  of  the  Oreto  in 
the  port  of  Liverpool,  and  to  its  issue  therefrom,  which  facts  failed 
to  induce  the  authorities  in  Great  Britain  to  resort  to  measures  ade- 
quate to  prevent  the  violation  of  the  neutrality  of  that  nation,  not- 
withstanding the  warnings  and  repeated  representations  of  the  agents 
of  the  United  States,  that  Her  Majesty's  government  has  failed  to  use 
due  diligence  to  fulfill  the  duties  of  neutrality ; 

And  whereas  it  likewise  results  from  all  the  facts  relative  to  the 
stay  of  the  Oreto  at  Nassau,  to  her  issue  from  that  port,  to  her  en- 
listment of  men,  to  her  supplies,  and  to  her  armament,  with  the  co- 
operation of  the  British  vessel  Prince  Alfred,  at  Green  Cay,  that  there 
was  negligence  on  the  part  of  the  British  colonial  authorities; 

And  whereas,  notwithstanding  the  violation  of  the  neutrality  of 
Great  Britain,  committed  by  the  Oreto,  this  same  vessel,  later  known 
as  the  Confederate  cruiser  Florida,  was,  nevertheless,  on  several  oc- 
casions freely  admitted  into  the  ports  of  British  colonies ; 

And  whereas  the  judicial  acquittal  of  the  Oreto  at  Nassau  can- 
not relieve  Great  Britain  from  the  responsibility  incurred  by  her  un- 
der the  principles  of  international  law;  nor  can  the  fact  of  the  entry 
of  the  Florida  into  the  Confederate  port  of  Mobile,  and  of  its  stay  there 
during  four  months,  extinguish  the  responsibility  previously  to  that 
time  incurred  by  Great  Britain : 

For  these  reasons  the 'tribunal,  by  a  majority  of  four  voices  to  one, 
is  of  opinion,  that  Great  Britain  has  in  this  case  failed,  by  omission, 


846  RIGHTS  AND   DUTIES   OF  NATIONS   IN  TIME   OF   WAR         (Part  3 

to  fulfill  the  duties  prescribed  in  the  first,  in  the  second,  and  in  the  third, 
of  the  rules  established  by  Article  VI  of  the  Treaty  of  Washington. 

And  whereas,  with  respect  to  the  vessel  called  the  Shenandoah,  it 
results  from  all  the  facts  relative  to  the  departure  from  IvOndon  of 
the  merchant  vessel,  the  Sea  King,  and  to  the  transformation  of  that 
ship  into  a  Confederate  cruiser  under  the  name  of  the  Shenandoah, 
near  the  island  of  Madeira,  that  the  government  of  Her  Britannic 
Majesty  is  not  chargeable  with  any  failure,  down  to  that  date,  in  the 
use  of  due  diligence  to  fulfill  the  duties  of  neutrality ; 

But  whereas  it  results  from  all  the  facts  connected  with  the  stay 
of  the  Shenandoah  at  Melbourne,  and  especially  with  the  augmenta- 
tion which  the  British  government  itself  admits  to  have  been  clan- 
destinely effected  of  her  force,  by  the  enlistment  of  men  within  that 
port,  that  there  was  negligence  on  the  part  of  the  authorities  at  that 
place : 

For  these  reasons  the  tribunal  is  unanimously  of  opinion,  that  Great 
Britain  has  not  failed,  by  any  act  or  omission,  "to  fulfill  any  of  the 
duties  prescribed  by  the  three  rules  of  article  VI  in  the  Treaty  of 
Washington,  or  by  the  principles  of  international  law  not  inconsistent 
therewith,"  in  respect  to  the  vessel  called  the  Shenandoah,  during 
the  period  of  time  anterior  to  her  entry  into  the  port  of  Melbourne; 

And,  by  a  majority  of  three  to  two  voices,  the  tribunal  decides  that 
Great  Britain  has  failed,  by  omission,  to  fulfill  the  duties  prescribed  by 
the  second  and  third  of  the  rules  aforesaid,  in  the  case  of  this  same 
vessel,  from  and  after  her  entry  into  Hobson's  Bay,  and  is,  therefore, 
responsible  for  all  acts  committed  by  that  vessel  after  her  departure 
from  Melbourne,  on  the  18th  day  of  February,  1865. 

And  so  far  as  relates  to  the  vessels  called  the  Tuscaloosa  (tender 
to  the  Alabama),  the  Clarence,  the  Tacony,  and  the  Archer,  (tenders 
to  the  Florida),  the  tribunal  is  unanimously  of  opinion,  that  such  ten- 
ders or  auxiliary  vessels,  being  properly  regarded  as  accessories,  must 
necessarily  follow  the  lot  of  their  principals,  and  be  submitted  to  the 
same  decision  which  applies  to  them  respectively. 

And  so  far  as  relates  to  the  vessel  called  Retribution,  the  tribunal, 
by  a  majority  of  three  to  two  voices,  is  of  opinion,  that  Great  Britain 
has  not  failed,  by  any  act  or  omission,  to  fulfill  any  of  the  duties  pre- 
scribed by  the  three  rules  of  article  VI  in  the  Treaty  of  Washington, 
or  by  the  principles  of  international  law  not  inconsistent  therewith. 

And  so  far  as  relates  to  the  vessels  called  the  Georgia,  tha  Sump- 
ter,  the  Nashville,  the  Tallahassee,  and  the  Chickamauga,  respectively, 
the  tribunal  is  unanimously  of  opinion,  that  Great  Britain  has  not  failed, 
by  any  act  or  omission,  to  fulfill  any  of  the  duties  prescribed  by  the 
three  rules  of  article  VI  in  the  Treaty  of  Washington,  or  by  the  prin- 
ciples of  international  law  not  inconsistent  therewith. 

And  so  far  as  relates  to  the  vessels  called  the  Sallie,  the  Jefferson 


Ch.  15)       BELLIGERENT  USE  OF  NEUTRAL  TERRITORY  847 

Davis,  the  Music,  the  Boston,  and  the  V.  H.  Joy  respectively,  the  tri- 
bunal is  unanimously  of  opinion  that  they  ought  to  be  excluded  fron; 
consideration  for  want  of  evidence. 

And  whereas,  so  far  as  relates  to  the  particulars  of  the  indemnity 
claimed  by  the  United  States,  the  cost  of  pursuit  of  the  Confederate 
cruisers  are  not,  in  the  judgment  of  the  tribunal,  properly  distinguish- 
able from  the  general  expenses  of  the  war  carried  on  by  the  United 
States : 

The  tribunal  is,  therefore,  of  opinion,  by  a  majority  of  three  to 
two  voices,  that  there  is  no  ground  for  awarding  to  the  United  States 
any  sum  by  way  of  indemnity  under  this  head. 

And  whereas,  prospective  earnings  cannot  properly  be  made  the 
subject  of  compensation,  inasmuch  as  they  depend  in  their  nature  upon 
future  and  uncertain  contingencies : 

The  tribunal  is  unanimously  of  opinion  that  there  is  no  ground 
for  awarding  to  the  United  States  any  sum  by  way  of  indemnity 
under  this  head. 

And  whereas,  in  order  to  arrive  at  an  equitable  compensation  for  the 
damages  which  have  been  sustained,  it  is  necessary  to  set  aside  all 
double  claims  for  the  same  losses,  and  all  claims  for  "gross  freights," 
so  far  as  they  exceed  "net  freights" ; 

And,  whereas,  it  is  just  and  reasonable  to  allow  interest  at  a  reason- 
able rate ; 

And,  whereas,  in  accordance  \vith  the  spirit  and  letter  of  the  Treaty 
of  Washington,  it  is  preferable  to  adopt  the  form  of  adjudication  of 
a  sum  in  gross,  rather  than  to  refer  the  subject  of  compensation  for 
further  discussion  and  deliberation  to  a  board  of  assessors,  as  provided 
by  article  X  of  the  said  treaty : 

The  tribunal,  making  use  of  the  authority  conferred  upon  it  by 
article  VII  of  the  said  treaty,  by  a  majority  of  four  voices  to  one, 
awards  to  the  United  States  a  sum  of  $15,500,000  in  gold,  as  the  in- 
demnity to  be  paid  by  Great  Britain  to  the  United  States,  for  the  sat- 
isfaction of  all  the  claims  referred  to  the  consideration  of  the  tribunal, 
conformably  to  the  provisions  contained  in  article  VII  of  the  afore- 
said treaty. 

And,  in  accordance  with  the  terms  of  article  XI  of  the  said  treaty, 
the  tribunal  declares  that  "all  the  claims  referred  to  in  the  treaty  as 
submitted  to  the  tribunal  are  hereby  fully,  perfectly,  and  finally  set- 
tled." 

Furthermore,  it  declares  that  "each  and  every  one  of  the  said  claims, 
whether  the  same  may  or  may  not  have  been  presented  to  the  notice 
of,  or  made,  preferred,  or  laid  before  the  tribunal,  shall  henceforth 
be  considered  and  treated  as  finally  settled,  barred,  and  inadmissible." 

In  testimony  whereof  this  present  decision  and  award  has  been  made 
in  duplicate,  and  signed  by  the  arbitrators  who  have  given  their  assent 


848  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  S 

thereto,  the  whole  being  in  exact  conformity  with  the  provisions  of 
article  VII  of  the  said  treaty  of  Washington. 

Made  and  concluded  at  the  Hotel  de  Ville  of  Geneva,  in  Switzer- 
land, the  14th  day  of  the  month  of  September,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  seventyrtwo. 

Charles  Francis  Adams,  Stampfli, 

Frederick  Sclopis,  Vicomte  d'Itajuba.* 


SECTION  2.— CAPTURE  IN  NEUTRAL  WATERS 


THE  ANNA. 
(High  CJourt  of  Admiralty,  1805.    5  C.  Rob.  3730 

Sir  W.  ScoTT.f     *     *     * 

I  am  of  opinion  that  the  right  of  territory  is  to  be  reckoned  from 
those  islands.  That  being  established,  it  is  not  denied  that  the  actual 
capture  took  place  within  the  distance  of  three  miles  from  the  islands, 
and  at  the  very  threshold  of  the  river.  But  it  is  said  that  the  act  of 
capture  is  to  be  carried  back  to  the  commencement  of  the  pursuit, 
and  that  if  a  contest  begins  before,  it  is  lawful  for  a  belligerent  cruiser 
to  follow,  and  to  seize  his  prize  within  .the  territory  of  a  neutral  state. 
And  the  authority  of  Bynkershoek  is  cited  on  this  point.  True  it  is, 
that  that  great  man  does  intimate  an  opinion  of  his  own  to  that  effect ; 
but  with  many  qualifications,  and  as  an  opinion,  which  he  did  not  find 
to  have  been  adopted  by  any  other  writers.  I  confess  I  should  have 
been  inclined  to  have  gone  along  with  him,  to  this  extent,  that  if  a 
cruiser,  which  had  before  acted  in  a  manner  entirely  unexceptionable, 
and  free  from  all  violation  of  territory,  had  summoned  a  vessel  to 
submit  to  examination  and  search,  and  that  vessel  had  fled  to  such 
places  as  these,  entirely  uninhabited,  and  the  cruiser  had  without  in- 

8  Ttie  three  rules  of  the  Treaty  of  Washington,  as  they  are  generally  called, 
were  the  subject  of  much  discussion  at  the  time  of  their  promulgation.  Great 
Britain  declared  that  they  did  not  state  the  duties  of  neutrals  as  they  were 
at  the  time  of  the  adoption  of  the  rules.  The  opinions  of  publicists  were 
divided.  There  Is,  however,  no  difference  of  opinion  at  the  present  day. 
They  are  admitted  to  state  correctly  the  duties  pf  neutral  nations  in  time  of 
war,  and  they  are  in  substance  incorporated  in  articles  5  and  8  of  Convention 
XIII  Concerning  the  Rights  and  Duties  of  Neutral  Powers  in  Naval  War, 
signed  at  The  Hague,  October  18,  1907. 

For  the  text  of  this  Convention,  see  Appentiix,  p.  1158. 

"Warships  building  to  the  order  of  a  belligerent  in  neutral  yards  must 
obviously  be  detained,  and  likewise  any  which  there  is  reason  to  believe  are 
destined  for  his  use.  Thus  Great  Britain,  on  the  outbreak  of  the  Spanish- 
American  War,  prevented  the  departure  of  the  Brazilian  battleships,  Amazo- 

t  For  the  facts  of  this  case  and  the  portion  of  the  opinion  relating  to  accre- 
tion, see  ante,  p.  195. 


Ch.  15)       BELLIGERENT  USE  OF  NEUTRAL  TERRITORY  849 

jury  or  annoyance  to  any  person  whatever,  quietly  taken  possession  of 
his  prey,  it  would  be  stretching  the  point  too  hardly  against  the  captor, 
to  say  that  on  this  account  only  it  should  be  held  an  illegal  capture.  If 
nothing  objectionable  had  appeared  in  the  conduct  of  the  captors  be- 
fore, the  mere  following  to  such  a  place  as  this  is,  would,  I  think, 
not  invalidate  a  seizure  otherwise  just  and  lawful. 

But  that  brings  me  to  a  part  of  the  case,  on  which  I  am  of  opinion 
that  the  privateer  has  laid  herself  open  to  great  reprehension.  Captors 
must  understand  that  they  are  not  to  station  themselves  in  the  mouth 
of  a  neutral  river,  for  the  purpose  of  exercising  the  rights  of  war  from 
that  river,  much  less  in  the  very  river  itself.  It  appears  from  the  priva- 
teer's own  log-book  that  this  vessel  has  done  both ;  and  as  to  any  at- 
tempt to  shelter  this  conduct  under  the  example  of  King's  ships,  which 
I  do  not  believe,  and  which,  if  true,  would  be  no  justification  to  others, 
captors  must,  I  say,  be  admonished  that  the  practice  is  altogether  in- 
defensible, and  that  if  King's  ships  should  be  guilty  of  such  misconduct, 
they  would  be  as  much  subject  to  censure  as  other  cruisers.  It  is  un- 
necessary to  go  over  all  the  entries  in  the  log.  The  captors  appear 
by  their  own  description  to  have  been  standing  off  and  on,  obtaining 
information  at  the  Balize,  overhauling  vessels  in  their  course  down  the 
river,  and  making  the  river  as  much  subservient  to  the  purposes  of 
war,  as  if  it  had  been  a  river  of  their  own  country.  This  is  an  in- 
convenience which  the  states  of  America  are  called  upon  to  resist,  and 
which  this  court  is  bound  on  every  principle  to  discourage  and  correct. 

With  respect  to  one. vessel,  it  appears  that  the  Bilboa,  under  Span- 
ish colors,  and  an  undoubted  Spanish  ship,  had  been  captured  and  car- 
ried into  the  river;  and  it  was  stated  in  an  affidavit  which  was  exhib- 
ited to  account  for  the  absence  of  the  usual  witnesses  in  that  case, 
that  the  prisoners  had  escaped.  The  cause  was  brought  on  upon  the 
evidence  of  the  releasing  witnesses  under  this  representation.  It  now 
appears  by  an  entry  in  this  log  "that  the  prisoners  were  set  on  shore" ; 
an  act  highly  unjustifiable,  in  its  own  nature,  independent  of  the  de- 
ception with  which  it  has  been  accompanied.  The  prisoners  are  the 
king's  prisoners,  and  captors  are  particularly  enjoined  by  the  instruc- 
tions not  to  release  any  prisoners  belonging  to  the  ships  of  the  enemy, 
and  they  violate  their  duty  whenever  they  do.  When  I  advert  to  the 
imposition  that  has  been  put  upon  the  court  in  that  transaction,  how 
can  I  trust  myself  to  any  representation  coming  from  the  same  per- 

nas  and  Almirante  Abrew,  which  had  been  sold  to  the  United  States.  Hig- 
gins,  Hague  Peace  Conferences,  p.  466  (1000).  And  this  should  apply  equally  to 
merchant  ships,  which  it  is  known  are  intended  to  be  converted  by  the  bellig- 
erent into  commerce  destroyers,  as  in  the  case  of  the  four  liners  sold  to  Rus- 
sia in  1904  by  the  Hamburg-Amerika  and  North  German  Lloyd  Steamship 
Tompanies  and  absorbed  into  the  Russian  volunteer  fleet.  Rrassey's  Naval 
Annual,  1904."  J.  A.  Hall,  The  Law  of  Naval  Warfare,  151,  152  (1921). 
Scott  Int.Law— 54 


850  RIGHTS  AND   DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

sons.  Indeed,  I  think,  I  can  perceive  strong  traits  of  bad  faith  run- 
ning throughout  the  whole  conduct  of  the  captors  in  the  present  case. 
In  answer  to  the  complaint  that  has  been  made  against  the  captors 
for  bringing  this  prize  to  England,  it  was  said,  that  it  was  done  at 
the  desire  of  the  master  of  the  captured  vessel ;  though  in  the  affidavit 
of  the  master,  which  is  not  contradicted,  it  is  sworn,  "that  the  captors 
offered  to  set  him  on  shore,  but  that  he  refused  to  be  separated  from 
his  cargo." 

The  conduct  of  the  captors  has  on  all  points  been  highly  reprehensi- 
ble. Looking  to  all  the  circumstances  of  previous  misconduct,  I  feel 
myself  bound  to  pronounce,  that  there  has  been  a  violation  of  territory, 
and  that  as  to  the  question  of  property,  there  was  not  sufficient  ground 
of  seizure;  and  that  these  acts  of  misconduct  have  been  further 
aggravated,  by  bringing  the  vessel  to  England,  without  any  necessity 
that  can  justify  such  a  measure.  In  such  a  case  it  would  be  falling 
short  of  the  justice  due  to  the  violated  rights  of  America,  and  to  the 
individuals  who  have  sustained  injury  by  such  misconduct,  if  I  did  not 
follow  up  the  restitution  which  has  passed  on  the  former  day,  with 
a  decree  of  costs  and  damages.* 

9  In  The  Twee  Gebroeders,  3  C.  Rob.  162,  164  (1800),  the  same  great  judge 
said:  "I  am  of  opinion  that  no  use  of  a  neutral  territory,  for  the  purposes 
of  war,  is  to  be  permitted.  I  do  not  say  remote  uses,  such  as  procuring  provi- 
sions and  refreshments,  and  acts  of  that  nature,  which  the  law  of  nations  uni- 
versally tolerates ;  but  that  no  proximate  acts  of  war  are  in  any  manner  to  be 
allowed  to  originate  on  neutral  grounds ;  and  I  cannot  but  think  that  such 
an  act  as  this,  that  a  ship  should  station  herself  on  neutral  territory,  and 
send  out  her  boats  (as  was  done  in  this  case)  on  hostile  enterprises,  is  an  act 
of  hostility  much  too  immediate  to  be  permitted.  For,  suppose  that  even  a 
direct  hostile  use  should  be  required  to  bring  it  within  the  prohibition  of  the 
law  of  nations,  nobody  will  say  that  the  very  act  of  sending  out  boats  to  ef- 
fect a  capture  is  not  itself  an  act  directly  hostile,  not  complete,  indeed,  but 
inchoate,  and  clothed  with  all  the  characters  of  hostility.  If  this  could  be 
defended,  it  might  as  well  be  said  that  a  ship  lying  in  a  neutral  station  might 
fire  shot  on  a  vessel  lying  out  of  the  neutral  territory;  the  injury  in  that 
case  would  not  be  consummated,  nor  received  on  neutral  ground ;  but  no  one 
would  say  that  such  an  act  would  not  be  an  hostile  act,  immediately  com- 
menced within  the  neutral  territoi*y.  And  what  does  it  signify  to  the  nature 
of  the  act,  considered  for  the  present  purpose,  whether  I  send  out  a  cannon- 
shot  which  shall  compel  the  submission  of  a  vessel  lying  at  two  miles  distance, 
or  whether  I  send  out  a  boat  armed  and  manned,  to  effect  the  very  same  thing 
at  the  same  distance?  It  Is  in  both  cases  the  direct  act  of  the  vessel  lying 
in  neutral  ground.  The  act  of  hostility  actually  begins,  in  the  latter  case,  with 
the  launching  and  manning  and  arming  the  boat  that  is  sent  out  on  such  an 
errand  of  force." 

In  the  case  of  The  Dusseldorf,  L.  R.  [1920]  A.  0.  1034r-1042  (1920),  the  Privy 
Council  held  that  the  Diisseldorf,  which  had  been  mistakenly  captured  by  a 
British  man-of-war  within  Norwegian  territorial  waters,  should  be  returned  to 
Norway  with  suitable  expressions  of  regret,  and  that  the  appellant,  the  royal 
Norwegian  consul-general  in  London  was  entitled  to  be  paid  such  expenses  of 
removing  the  Diisseldorf  from  British  waters  to  Norwegian  or  other  neutral 
waters,  "as  may  have  fallen,  or  will  ultimately  fall,  on  the  government  of 
Norway." 

In  the  case  of  The  Valeria,  L.  R.  [1921]  1  A.  C.  477  (1921),  it  appeared  that 
the  Valeria  was  attacked  and  captured  within  Norwegian  waters,  but  owing  to 

Scott  Int.Law 


Ch.  15)       BELLIGERENT  USE  OF  NEUTRAL  TERRITORY  851 

THE  ANNE. 

(Supreme  Court  of  the  United  States,  1818.    3  Wheat.  435,  4  L.  Ed.  428.) 

Appeal  to  the  Circuit  Court  for  the  District  of  Maryland. 

The  British  ship  Anne,  with  a  cargo  belonging  to  a  British  subject, 
was  captured  by  the  privateer  Ultor,  while  lying  at  anchor  near  the 
Spanish  part  of  the  island  of  St.  Domingo,  on  the  13th  of  March,  1815, 
and  carried  into  New  York  for  adjudication.  The  master  and  super- 
cargo were  put  on  shore  at  St.  Domingo,  and  all  the  rest  of  the  crew, 
except  the  mate,  carpenter,  and  cook,  were  put  on  board  the  capturing 
ship.  After  arrival  at  New  York,  the  deposition  of  the  cook  only  was 
taken,  before  a  commissioner  of  prize,  and  that,  together  with  the 
ship's  papers,  was  transmitted  by  the  commissioner,  under  seal,  to  the 
district  judge  of  Maryland  district,  to  which  district  the  Anne  was 
removed,  by  virtue  of  the  provisions  of  the  act  of  Congress  of  the 
27th  of  January,  1813,  c.  478. 

Prize  proceedings  were  duly  instituted  against  the  ship  and  cargo, 
and  a  claim  was  afterwards  interposed  in  behalf  of  the  Spanish  consul, 
claiming  restitution  of  the  property,  on  account  of  an  asserted  violation 
of  the  neutral  territory  of  Spain.  The  testimony  of  the  carpenter  was 
thereupon  taken  by  the  claimant,  and  the  captors  were  also  admitted  to 
give  testimony  as  to  the  circumstances  of  the  capture;  and,  upon  the 
whole  evidence,  the  district  court  rejected  the  claim,  and  pronounced 
a  sentence  of  condemnation  to  the  captors.  Upon  appeal  to  the  circuit 
court,  peace  having  taken  place,  the  British  owner,  Mr.  Richard  Scott, 
interposed  a  claim  for  the  property,  and  the  decree  of  the  District  Court 
was  affirmed,  pro  forma,  to  bring  the  cause  for  a  final  adjudication  be- 
fore this  court. 

Story,  Justice,  delivered  the  opinion  of  the  court.^'*  The  first  ^ques- 
tion which  is  presented  to  the  court  is,  whether  the  capture  was  made 
within  the  territorial  limits  of  Spanish  St.  Domingo.  *  *  *  ^^(^ 
without  entering  into  a  minute  examination,  in  this  conflict  of  testi- 
mony, we  are  of  opinion  that  the  weight  of  evidence  is,  decidedly,  that 
the  capture  was  made  within  the  territorial  Hmits  of  Spanish  St. 
Domingo. 

And  this  brings  us  to  the  second  question  in  the  cause ;  and  that  is, 
whether  it  was  competent  for  the  Spanish  consul,  merely  by  virtue  of 

bad  weather,  it  was  abandoned  and  sunk  by  gunfire.  The  Norwegian  govern- 
ment claimed  restitution  for  the  vessel  in  money. 

The  Privy  Council  hold  that  though  the  sovereignty  of  the  King  of  Norway 
had  been  violated  by  the  capture  of  the  vessel  within  Norwegian  waters, 
nevertheless,  the  Norwegian  government  could  not  recover  in  respect  of  a 
proprietary  interest  in  the  ship,  either  for  the  Government  itself,  or  for  the 
German  owners  of  the  vessel. 

See  The  Ambiorix,  Entscheidungen  des  Oberprisengerichts  in  Berlin  [19181 
170  (1916),  in  which  a  Belgian  steamship,  captured  within  the  territorial 
waters  of  Sweden,  was  released. 

10  Part  of  the  opinion  is  omitted. 


852  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   WAR         (Part  3 

his  office,  and  without  the  special  authority  of  his  government,  to  in- 
terpose a  claim  in  this  case  for  the  assertion  of  the  violated  rights  of 
his  sovereign.  We  are  of  opinion  that  his  office  confers  on  him  no  such 
legal  competency.     *     *     * 

The  claim  of  the  Spanish  government  for  the  violation  of  its  neutral 
territory  being  thus  disposed  of,  it  is  next  to  be  considered  v^^hether 
the  British  claimant  can  assert  any  title  founded  upon  that  circum- 
stance. By  the  return  of  peace,  the  claimant  became  rehabilitated 
vv^ith  the  capacity  to  sustain  a  suit  in  the  courts  of  this  country;  and 
the  argument  is,  that  a  capture  made  in  a  neutral  territory  is  void ; 
and,  therefore,  the  title  by  capture  being  invalid,  the  British  owner 
has  a  right  to  restitution.  The  difficulty  of  this  argument  rests  in  the 
incorrectness  of  the  premises.  A  capture  made  within  neutral  waters 
is,  as  between  enemies,  deemed,  to  all  intents  and  purposes,  rightful; 
it  is  only  by  the  neutral  sovereign  that  its  legal  validity  can  be  called 
in  question ;  and  as  to  him  and  him  only,  is  it  to  be  considered  void. 
The  enemy  has  no  rights  whatsoever;  and  if  the  neutral  sovereign 
omits  or  declines  to  interpose  a  claim,  the  property  is  condemnable, 
jure  belli,  to  the  captors.  This  is  the  clear  result  of  the  authorities; 
and  the  doctrine  rests  on  well  established  principles  of  public  law. 

There  is  one  other  point  in  the  case  which,  if  all  other  difficulties 
were  removed,  would  be  decisive  against  the  claimant.  It  is  a  fact,  that 
the  captured  ship  first  commenced  hostilities  against  the  privateer.  This 
is  admitted  on  all  sides ;  and  it  is  no  excuse  to  assert  that  it  was  done 
under  a  mistake  of  the  national  character  of  the  privateer,  even  if  this 
were  entirely  made  out  in  the  evidence.  While  the  ship  was  lying  in 
neutral  waters,  she  was  bound  to  abstain  from  all  hostilities,  except  in 
self  defence.  The  privateer  had  an  equal  title  with  herself  to  the  neu- 
tral protection,  and  was  in  no  default  in  approaching  the  coast  without 
showing  her  national  character.  It  was  a  violation  of  that  neutrality 
which  the  captured  ship  was  bound  to  observe,  to  commence  hostilities 
for  any  purpose  in  these  waters ;  for  no  vessel  coming  thither  was 
bound  to  submit  to  search,  or  to  account  to  her  for  her  conduct  or  char- 
acter. When,  therefore,  she  commenced  hostilities,  she  forfeited  the 
neutral  protection,  and  the  capture  was  no  injury  for  which  any  redress 
could  be  rightfully  sought  from  the  neutral  sovereign. 

The  conclusion  from  all  these  views  of  the  case  is,  that  the  ship  and 
cargo  ought  to  be  condemned  as  good  prize  of  war.     *     *     *  ii 

1 1  Tn  the  case  of  the  British  ship  Grange,  captured  in  Delaware  Bay  by  a 
French  privateer  (1793),  it  was  held  by  Attorney  General  Randolph  (1  Op. 
Atty.  Gen.  .32-.'!.8  [18.52])  that,  if  the  captured  ship  was  brought  within  the 
jurisdiction  of  the  United  States,  it  was  their  duty  as  neutrals. to  restore  her 
to  the  owners.  To  the  same  effect,  see  La  Estrella,  4  Wheat.  298,  4  L.  Ed.  574 
(1819). 

See.  also,  the  early  American  case,  Soult  v.  L'Africaine,  Bee,  204,  Fed.  Cas. 
No.  13,179  (1804). 

To  the  effect  that  a  capture  made  by  belligerents  '\ithin  neutral  waters 
passes  title  but  justifies  the  neutral  to  demand  an  apology,  indemnity,  or  the 


Ch.  15)       BELLIGERENT  USE  OF  NEUTRAL  TERRITORY  853 


THE  GENERAL  ARMSTRONG. 

(Arbitration  under  terms  of  Convention  of  February  26,  1851,  between  Portu- 
gal and  the  United  States,  1S52.    2  Moore's  Intor- 
V  national  Arbitrations,  1094.) 

We,  Louis  Napoleon,  President  of  the  French  Re{xiblic : 

The  government  of  the  United  States  and  that  of  Her  Majesty  the 
Queen  of  Portugal  and  of  the  Algarves,  having,  by  the  terms  of  a 
convention  signed  at  Washington  on  the  26th  of  February,  1851,  asked 
us  to  pronounce  as  arbiter  upon  a  claim  relative  to  the  American  pri- 
vateer General  Armstrong,  which  was  destroyed  in  the  port  of  Fayal, 
on  the  27th  of  September,  1814, 

After  having  caused  ourself  to  be  correctly  and  circumstantially  in- 
formed in  regard  to  the  facts  which  have  been  the  cause  of  the  dif- 
ference, and  after  having  maturely  examined  the  documents  duly 
signed,  in  the  name  of  the  two  parties,  which  have  been  submitted  to 
our  inspection  by  the  representatives  of  both  powers. 

Considering  that  it  appears  as  a  fact  that,  the  United  States  being 
at  war  with  Her  Britannic  Majesty,  and  Her  Most  Faithful  Majesty 
preserving  neutrality,  the  American  brig  General  Armstrong,  com- 
manded by  Captain  Reid,  legally  provided  with  letters  of  marque,  and 
armed  -as  a  privateer,  having  sailed  from  the  port  of  New  York,  did, 
on  the  26th  September,  1814,  cast  anchor  in  the  port  of  Fayal,  one  of 
the  Azores  Islands,  constituting  part  of  Her  Most  Faithful  Majesty's 
dominions ; 

That  it  is  equally  clear  that,  on  the  evening  of  the  same  day,  an 
English  squadron  commanded  by  Commodore  Lloyd,  entered  the  same 
port ; 

That  it  is  no  less  certain  that,  during  the  following  night,  without 
respect  for  the  rights  of  sovereignty  and  of  neutrality  of  Her  Most 
Faithful  Majesty,  a  bloody  encounter  took  place  between  the  Ameri- 
cans and  the  English,  and  that,  on  the  27th  September,  one  of  the 
vessels  belonging  to  the  English  squadron  ranged  herself  alongside  the 
American  privateer,  for  the  purpose  of  cannonading  her;  that  this 
demonstration,  accompanied  by  the  act,  caused  Captain  Reid,  together 
with  his  crew,  to  abandon  his  vessel  and  destroy  her ; 

Considering  that,  if  it  be  clear  that,  on  the  night  of  the  26th  of 

return  of  the  captured  vessel,  see  The  Sir  William  Peel,  5  Wall.  517,  535.  IS 
L.  Ed.  696  (1866) :  The  Adela.  6  Wall.  266,  18  L.  Ed.  821  (1867) ;  The  Florida, 
101  U.  S..37,  43,  25  L.  Ed.  898  (1870). 

In  an  early  French  case,  The  Perlo.  Conseil  des  Prises,  "An  VIII,"  1  Pistoye 
et  Duverdy,  100  (1800),  it  was  decided  that  a  belligerent  capture  in  neutral 
waters  is  illegal  whether  under  the  guns  of  a  fort,  or  on  the  undefended  coast ; 
and  the  captured  ship  will  be  restored  by  the  courts  (French)  of  the  captor's 
country. 


854  RIGHTS  AND  DUTIES  OP  NATIONS  IN  TIME  OF  WAR         (Part  3 

September,  some  English  longboats,  commanded  by  Lieutenant  Robert 
Fausset,  of  the  British  navy,  approached  the  American  biig,  the  Gen- 
eral Armstrong,  it  is  not  clear  that  the  men  who  manned  the  boats 
were  provided  with  arms  and  ammunition; 

That  it  appears  as  a  fac5t,  from  the  documents  which  have  been  pro- 
duced, that,  those  longboats  having  approached  the  American  brig,  the 
crew  of  the  latter,  after  having  hailed  them  and  summoned  them  to 
haul  off,  immediately  fired  upon  them,  and  that  some  men  were  killed 
on  board  the  English  boats,  and  others  wounded,  some  of  them  mor- 
tally, without  any  attempt  having  been  made  on  the  part  of  the  crew 
of  the  boats  to  repel,  immediately,  force  by  force ; 

Considering  that  the  report  of  the  governor  of  Fayal  proves  that  the 
American  captain  did  not  apply  to  the  Portuguese  government  for  pro- 
tection until  blood  had  already  been  shed,  and  that  when  the  fire  had 
ceased  the  brig  General  Armstrong  came  to  anchor  under  the  castle,  at 
the  distance  of  a  stone's  throw ;  that  the  governor  affirms  that  it  was 
only  then  that  he  was  informed  of  what  was  passing  in  the  port ; 

That  he  several  times  interposed  with  Commodore  Lloyd,  with  a 
view  to  obtain  a  cessation  of  hostilities  and  to  complain  of  the  viola- 
tion of  neutral  territory ; 

That  he  effectively  prevented  some  American  sailors,  who  were 
on  land,  from  embarking  on  board  the  American  brig,  for  the  purpose 
of  prolonging  a  conflict  which  was  contrary  to  the  law  of  nations ; 

That  the  weakness  of  the  garrison  of  the  island,  and  the  undoubted 
decay  of  the  guns  in  the^  forts,  rendered  all  armed  intervention  on  his 
part  impossible ; 

Considering,  in  this  state  of  things,  that  Captain  Reid,  not  having 
applied,  in  the  beginning,  for  the  intervention  of  the  neutral  sovereign, 
and  having  had  recourse  to  arms  for  the  purppse  of  repelling  an  unjust 
aggression  of  which  he  claimed  to  be  the  object,  thus  failed  to  respect 
the  neutrality  of  the  territory  of  the  foreign  sovereign,  and  released 
that  sovereign  from  the  obligation  to  afford  him  protection  by  any  other 
means  than  that  of  a  pacific  intervention ; 

From  v/hich  it  follows  that  the  government  of  Her  Most  Faithful 
Majesty  cannot  be  held  responsible  for  the  results  of  a  collision,  which 
took  place  in  contempt  of  her  rights  of  sovereignty,  in  violation  of 
the  neutrality  of  her  territory,  and  without  the  local  officers  or  lieuten- 
ants having  been  requested  in  proper  time  and  warned  to  grant  aid 
and  protection  to  those  to  whom  it  was  due : 

Therefore,  we  have  decided  and  we  declare  that  the  claim  presented 
by  the  government  of  the  United  States  against  Her  Most*  Faithful 
Majesty  has  no  foundation,  and  that  no  indemnity  is  due  by  Portugal, 
in  consequence  of  the  loss  of  the  American  brig,  the  privateer  General 
Armstrong. 


Ch.  15)       BELLIGERENT  USE  OF  NEUTRAL  TERRITORY  855 

Done  and  signed  in  duplicate,  under  the  seal  of  the  state,  at  the 
palace  of  the  Tuileries,  on  the  thirtieth  day  of  the  month  of  Novem- 
ber, in  the  year  of  grace  one  thousand  eight  hundred  and  fifty-two. 
[Seal.]  L.  NapolEON.i^ 

By  the  Prince  President: 
Drouyn  dB  Lhuys. 


THE  ITATA. 

SOUTH  AMERICAN  S.  S.  CO.  v.  UNITED  STATES. 

« 

(United  States  and  Chilean  Claims  Commission  under  Convention  of  August 
7,  1892.    3  Moore's  International  Arbitrations,  3067.) 

See  ante,  p.  2)67  ^o^^  ^  report  of  the  case. 


THE  TINOS,  BOGADOS,  KYTHNOS,  ANATOLIA,  etc. 

(French  Prize  Council,  1917.     Journal  Officiel,  January  9,  1918,  p.  401.) 

In  the  name  of  the  French  people,  the  Prize  Court  has  rendered 
the  following  decision  between, 

On  the  one  hand,  the  owners  and  captains  of  the  steamers  Tinos, 
Bogados,  Kythnos,  Anatolia,  Athena,  Seriphos,  Malta,  Berthilde,  Ber- 
ger  Wilhelm,  Korana,  Salona,  Marienbad,  and  of  the  sailer  Sabbadino, 
seized  on  September  1,  2,  and  4,  1916,  in  the  roads  of  the  Piraeus,  Eleu- 
sis,  and  Syra  by  the  allied  naval  authorities; 

And,  on  the  other  hand,  the  Minister  of  the  Navy  acting  in 
the  name  and  as  representative  of  the  State  and  on  behalf  of  the 
rightful  claimants  of  the  proceeds  of  prizes,  according  to  the  laws  and 
regulations  in  force;     *     *     * 

Having  heard  M.  Henri  Fromageot,  member  of  the  Court,  in  his 
report,  and  M.  Chardenet,  Commissioner  of  the  Government,  in  his 
statements  in  support  of  his  aforementioned  motions,  the  Court,  after 
due  deliberation. 

Whereas,  on  September  1,  2,  and  4,  1916,  the  allied  naval  authorities 
in  the  Eastern  Mediterranean  have  seized  in  the  roads  of  the  Pi- 
raeus the  German  vessels  Tinos,  Bogados,  Anatolia,  and  Seriphos, 
and  in  the  roads  of  Eleusis  the  German  vessels  Athena,  Malta,  Salona, 
Berthilde  and  Berger  Wilhelm,  as  well  as  the  Austro-Hungarian  steam- 
ers Korana,  Marienbad  and  Sabbadino,  and  finally  at  Syra  the  German 
vessel  Kythnos; 

1 2  See  criticism  of  the  award  in  Dana's  Wheaton,  note  20S,  p.'  526,  and  for  an 
elaborate  account  of  the  orirfn,  history  and  final  settlement  of  this  interesting 
episode,  see  2  Moore's  Int.  Arb.  1071-1 1.'52. 

See,  also,  A.  de  Lapradelle  et  N.  Politis,  Recueil  des  Arbitrages  Interna- 
tionaux,  vol.  I,  pp.  635-660  (1905). 


856  RIGHTS  AND  DUTIES   OF  NATIONS   IN  TIME  OF  WAR         (Part  3 

Whereas,  the  enemy  nationahty  of  said  vessels,  determined  by 
the  papers  found  on  board,  is  expressly  recognized  by  the  claimant 
owners,  all  of  German  or  Austro-Hungarian  nationality ;  whereas,  for 
this  reason  said  vessels  could  be  captured  in  conformity  with  the  prin- 
ciples of  international  law,  sanctioned  by  the  Navy  Orders  of  August, 
1681; 

Whereas,  however,  the  owners  contest  the  validity  of  the  seizures 
by  claiming  that  they  took  place  in  the  territorial  waters  of  Greece, 
the  neutrality  of  which  they  invoke ; 

But  whereas,  it  appears  from  the  documents  appended  to  the  evi- 
dence that,  according  to  the  chronological  history  of  the  present  war, 
since  the  outbreak  of  the  war,  Germany  and  her  allies,  after  having 
used  the  Greek  ports  and  waters  as  bases  for  obtaining  supplies  and 
undertaking  naval  operations,  have  made  said  waters  the  theatre  of 
their  hostilities ;  .whereas,  for  example,  from  August  6  to  19,  1914,  ac- 
cording to  its  own  log-book,  the  German  steamer  Bogados,  now  cap- 
tured, supplied  the  German  cruisers  Goeben  and  Breslau  with  coal 
in  the  roads  of  Rusa  (Greece) ;  whereas,  on  June  9,  1915,  a  supply  base 
for  providing  enemy  submarines  with  benzine  was  found  at  Samothrace 
(^gean  Sea) ;  whereas,  on  November  18,  1915,  the  existence  of  a  simi- 
lar base  was  discovered  at  Corfu  and  vainly  protested  on  April  8,  1916, 
by  the  royal  government  then  in  power  in  Greece ;  whereas,  on  Decem- 
ber 17,  1915,  several  other  similar  bases  had  to  be  destroyed  on  the 
coasts  of  Argolis,  Crete  and  Cavalla ;  whereas,  on  January  6,  1916,  im- 
portant stores  of  arms  and  ammunitions,  owned  by  the  enemy,  were  re- 
ported to  the  German  consulate  in  the  port  of  Salonica;  whereas,  on 
January  22,  1916,  an  enemy  submarine  torpedoed  an  Allied  transport  at 
the  point  of  Kara-Bouroum  (Gulf  of  Salonica)  in  Greek  territorial  wa- 
ters ;  whereas,  on  January  23,  1916,  new  enemy  submarine  supply  bas- 
es were  reported  in  the  islets  near  Crete ;  whereas,  on  May  5,  1916,  a 
German  military  dirigible,  threatening  to  attack  the  port  and  roads  of 
Salonica,  had  to  be  brought  down  by  Allied  flying  squadrons ;  whereas, 
on  May  9,  1916,  German  aeroplanes  attempted  to  bombard  the  ports  of 
Rhodes  and  Budrun;  whereas,  after  having  invaded  Greek  territory, 
the  armed  forces  of  the  enemy  have  not  hesitated  on  June  26,  27 ,  28, 
and  August  19  and  30,  1916,  to  seize  and  proceed  to  occupy  cities  and 
ports  of  Greece  by  driving  out  the  Greek  forces  and  taking  possession 
of  the  means  of  defence,  and  by  attacking  the  allied  armies  of  France, 
Great  Britain  and  Russia,  powers  that  are  guaranteeing  the  independ- 
ence of  Greece; 

Whereas,  the  claimants  emphasize  the  fact  that  the  contraband 
articles  handled,  and  the  contraband  articles  carried  on  by  individuals 
for  the  profit  of  the  enemy  cannot  change  the  character  of  Greece  as  a 
neutral  state ; 

But  whereas,  the  acts  herein  mentioned  are  hostile  acts  committed 
by  the    forces   and   authorities  themselves   of   the   enemy   in   Greek 


Ch.  15)       BELLIGERENT  USE  OF  NEUTRAL  TERRITORY  857 

waters,  ports  and  territory,  although  they  may  have  been  the  facilities 
of  private  individuals; 

Whereas,  under  these  circumstances,  without  its  being  necessary- 
to  determine  the  attitude  of  the  royal  government  then  in  power  in 
Greece  in  regard  to  neutrality,  it  is  sufficient  to  note  that  the  suc- 
cession of  hostile  acts  committed  by  the  enemy  in  the  waters  and  ter- 
ritory of  Greece  has  transformed  it  into  a  theatre  of  war  and  has  de- 
prived the  enemy  de  facto  of  the  advantages  of  a  neutrality  which  the 
vessels  of  the  enemy  now  vainly  attempt  to  invoke; 

Whereas,  consequently  in  conformity  with  the  body  of  interna- 
tional law,  developed  in  the  course  of  previous  wars  (Prize  Court 
and  High  Prize  Court  of  Japan,  May  21,  1904,  and  May  30,  1905,  the 
case  of  The  Ekaterinoslav,  pp.  51,  57,  and  66;  for  the  case  of  The 
Mukden,  pp.  71,  77 ,  78,  and  95 — Japanese  Prize  Cases,  pp.  4,  7,  14, 
and   16)  the  exception  raised  by  the  claimant  owners  is  untenable ; 

Whereas,  the  Court  is  asked  to  decide  only  on  the  validity  of  the 
capture  of  the  ships  and  accordingly  is  not  to  pass  judgment  on 
the  question  of  their  cargoes,  on  granting  the  proceeds  of  the  prizes ; 

Whereas,  the  Minister  of  the  Navy  concluded  that,  since  the  prizes 
were  made  by  the  allied  naval  forces,  the  proceeds  thereof  should  be 
divided  in  conformity  with  the  Franco-British  Agreement  of  Novem- 
ber 9,  1914;  whereas,  it  is  in  order  to  pass  judgment  on  said  conclu- 
sions; 

Decides : 

1.  The  capture  of  the  German  ships  Tinos,  Bogados,  Kythnos,  Ana- 
tolia, Athena,  Seriphos,  Malta,  Berthilde,  Berger  Wilhelm,  and  of  the 
Austro-Hungarian  ships  Korana,  Salona,  Marienbad,  and  Sabbadino, 
together  with  their  rigging,  tackle,  equipment  and  supplies  of  every 
kind,  seized  on  September  1,  2,  and  4,  1916,  in  the  roads  of  the  Piraeus, 
Eleusis  and  Syra  by  the  allied  naval  authorities,  is  declared  good  and 
valid. 

2.  The  net  proceeds  of  the  prize  will  be  divided  among  the  assigns, 
as  provided  by  the  Franco-British  Agreement  of  November  9,  1914. 

3.  The  objects  and  effects  which  are  their  personal  property  will  be 
restored  to  the  captains  and  members  of  the  crews  or  to  tlieir  assigns. 


858  EIGHTS  AND- DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

SECTION  3.— ABUSE  OF  HOSPITALITY 


THE  APPAM. 

(Supreme  Court  of  the  United  States,  1917.     243  U.  S.  124,  37  Sup.  Ct.  337, 
61  L,  Ed.  633,  Ann.  Cas.  1917D,  442.) 

Mr.  Justice  Day  delivered  the  opinion  of  the  court.^' 

These  are  appeals  from  the  District  Court  of  the  United  States  for 
the  Eastern  District  of  Virginia,  in  two  admiralty  cases.  No.  650  was 
brought  by  the  British  &  African  Steam  Navigation  Company,  Limited, 
owner  of  the  British  steamship,  Appam,  to  recover  possession  of  that 
vessel.  No.  722  was  a  suit  by.  the  master  of  the  Appam  to  recover  pos- 
session of  the  cargo.  In  each  of  the  cases  the  decree  was  in  favor  of 
the  libellant. 

The  facts  are  not  in  dispute  and  from  them  it  appears :  That  dur- 
ing the  existence  of  the  present  war  between  Great  Britain  and  Ger- 
many, on  the  fifteenth  day  of  January,  1916,  the  steamship  Appam  was 
captured  on  the  high  seas  by  the  German  cruiser,  Moewe.  The  Appam 
was  a  ship  under  the  British  flag,  registered  as  an  English  vessel,  and 
is  a  modern  cargo  and  passenger  steamship  of  7,800  tons  burden.  At 
the  time  of  her  capture  she  was  returning  from  the  West  Coast  of 
Africa  to  Liverpool,  carrying  a  general  cargo  of  cocoa  beans,  palm 
oil,  kernels,  tin,  maize,  sixteen  boxes  of  specie,  and  some  other  arti- 
cles. At  the  West  African  port  she  took  on  170  passengers,  eight  of 
whom  were  military  prisoners  of  the  English  Government.  She  had 
a  crew  of  160  or  thereabouts,  and  carried  a  three-pound  gun  at  the 
stern.  The  Appam  was  brought  to  by  a  shot  across  her  bows  from 
the  Moewe,  when  about  a  hundred  yards  away,  and  was  boarded  with- 
out resistance  by  an  armed  crew  from  the  Moewe,     *     *     * 

At  the  time  of  the  capture,  the  Appam  was  approximately  distant 
1,590  miles  from  Emden,  the  nearest  German  port;  from  the  nearest 
available  port,  namely,  Punchello,  in  the  Madeiras,  130  miles;  from 
Liverpool,  1,450  miles;  and  from  Hampton  Roads,  3,051  miles.  The 
Appam  was  found  to  be  in  first  class  order,  seaworthy,  with  plenty  of 
provisions,  both  when  captured  and  at  the  time  of  her  arrival  in  Hamp' 
ton  Roads. 

The  order  or  commission  delivered  to  Lieutenant  Berg  by  the  com- 
mander of  the  Moewe  is  as  follows :  "Information  for  the  American 
Authorities,  The  bearer  of  this.  Lieutenant  of  the  Naval  Reserve  Berg, 
is  appointed  by  me  to  the  command  of  the  captured  English  steamer 
Appam,  and  has  orders  to  bring  this  ship  into  the  nearest  American 
harbor  and  there  to  lay  up.     Kommando  S.  M,  H.   Moewe,  Count 

13  Parts  of  the  opinion  are  omitted. 


Ch.  15)       BELLIGERENT  USE  OF  NEUTRAL  TERRITORY  859 

Zu  Dohna,  Cruiser  Captain  and  Commander.    [Imperial  Navy  Stamp.] 
Kommando  S.  M.  H.  Moevve." 

Upon  arrival  in  Hampton  Roads,  Lieutenant  Berg  reported  his  ar- 
rival to  the  collector,  and  filed  a  copy  of  his  instructions  to  bring  the 
Appam  into  the  nearest  American  port  and  there  to  lay  up. 

On  February  2d,  His  Excellency,  the  German  Ambassador,  informed 
the  State  Department  of  the  intention,  under  alleged  treaty  rights,  to 
stay  in  an  American  port  until  further  notice,  and  requested  that  the 
crew  of  the  Appam  be  detained  in  the  United  States  for  the  remainder 
of  the  war.  The  prisoners  brought  in  by  the  Appam  were  released  by 
order  of  the  American  government. 

On  February  16th,  and  sixteen  days  after  the  arrival  of  the  Appam 
in  Hampton  Roads,  the  owner  of  the  Appam  filed  the  libel  in  case 
No.  650,  to  which  answer  was  filed  on  March  3d.  On  March  7th,  by 
leave  of  court,  an  amended  libel  was  filed,  by  which  the  libellant  sought 
to  recover  the  Appam  upon  the  claim  that  holding  and  detaining  the 
vessel  in  American  waters  was  in  violation  of  the  law  of  nations  and  the 
laws  of  the  United  States  and  of  the  neutrality  of  the  United  States. 
The  answer  of  the  respondents  to  the  amended  libel  alleged  that  the 
Appam  was  brought  in  as  a  prize  by  a  prize  master,  in  reliance  upon 
the  Treaty  of  1799  between  the  United  States  and  Prussia;  that  by 
the  general  principles  of  international  law  the  prize  master  was  entitled 
to  bring  his  ship  into  the  neutral  port  under  these  circumstances,  and 
that  the  length  of  stay  was  not  a  matter  for  judicial  determination; 
and  that  proceedings  had  been  instituted  in  a  proper  prize  court  of 
competent  jurisdiction  in  Germany  for  the  condemnation  of  the  Appam 
as  a  prize  of  war;  and  averred  tliat  the  American  court  had  no  juris- 
diction. 

The  libel  against  the  Appam's  cargo  was  filed  on  March  13th,  1916, 
and  answer  filed  on  March  31st.  During  the  progress  of  the  case,  libel- 
lant moved  the  court  to  sell  a  part  of  the  cargo  as  perishable ;  on  mo- 
tion the  court  appointed  surveyors,  who  examined  the  cargo  and  re- 
ported that  the  parts  so  designated  as  perishable  should  be  sold ;  upon 
their  report  orders  of  sale  were  entered,  under  which  such  perishable 
parts  were  sold,  and  the  proceeds  of  that  sale,  amounting  to  over  $600,- 
000,  are  now  in  the  registry  of  the  court,  and  the  unsold  portions 
of  the  cargo  are  now  in  the  custody  of  the  marshal  of  the  Eastern 
District  of  Virginia.     *     *     * 

From  the  facts  which  we  have  stated,  we  think  the  decisive  questions 
resolve  themselves  into  three :  First,  was  the  use  of  an  American  port, 
under  the  circumstances  shown,  a  breach  of  this  nation's  neutrality 
under  the  principles  of  international  law?  Second,  was  such  use  of 
an  American  port  justified  by  the  existing  treaties  between  the  German 
government  and  our  own?  Third,  was  there  jurisdiction  and  right  to 
condemn  the  Appam  and  her  cargo  in  a  court  of  admiralty  of  the 
United  States? 


860  RIGHTS   AND   DUTIES   OF  NATIONS   IN   TIME   OF   WAR         (Part  3i 

It  is  familiar  international  law  that  the  usual  course  after  the  capture 
of  the  Appam  would  have  been  to  take  her  into  a  German  port,  where 
a  prize  court  of  that  nation  might  have  adjudicated  her  status,  and,  if 
it  so  determined,  condemned  the  vessel  as  a  prize  of  war.  Instead  of 
that,  the  vessel  was  neither  taken  to  a  German  port,  nor  to  the  nearest 
port  accessible  of  a  neutral  power,  but  was  ordered  to,  and  did,  proceed 
over  a  distance  of  more  than  three  thousand  miles,  with  a  view  to  lay- 
ing up  the  captured  ship  in  an  American  port. 

It  was  not  the  purpose  to  bring  the  vessel  here  within  the  privileges 
universally  recognized  in  international  law,  i.  e.,  for  necessary  fuel  or 
provisions,  or  because  of  stress  of  weather  or  necessity  of  repairs,  and 
to  leave  as  soon  as  the  cause  of  such  entry  was  satisfied  or  removed. 
The  purpose  for  which  the  Appam  was  brought  to  Hampton  Roads, 
and  the  character  of  the  ship,  are  emphasized  in  the  order  which  we 
have  quoted  to  take  her  to  an  American  port  and  there  lay  her  up, 
and  in  a  note  from  His  Excellency,  the  German  Ambassador,  to  the 
Secretary  of  State,  in  which  the  right  was  claimed  to  keep  the  vessel 
in  an  American  port  until  further  notice  (Diplomatic  Correspondence 
with  Belligerent  Governments  Relating  to  Neutral  Rights  and  Duties, 
Department  of  State,  European  War  No.  3,  p.  331),  and  a  further 
communication  from  the  German  Ambassador  forwarding  a  memoran- 
dum of  a  telegram  from  the  German  government  concerning  the  Appam 
(Id.  p.  333),  in  which  it  was  stated :  "Appam  is  not  an  auxiliary  cruiser 
but  a  prize.  Therefore  she  must  be  dealt  with  according  to  article  19 
of  Prusso-American  treaty  of  1799.  Article  21  of  Hague  Convention 
concerning  neutrality  at  sea  is  not  applicable,  as  this  convention  was 
not  ratified  by  England  and  is  therefore  not  binding  in  present  war 
according  to  article  28.  The  above-mentioned  article  19  authorizes  a 
prize  ship  to  remain  in  American  ports  as  long  as  she  pleases.  Nei- 
ther the  ship  nor  the  prize  crew  can  therefore  be  interned  nor  can  there 
be  question  of  turning  the  prize  over  to  English." 

In  view  of  these  facts,  and  this  attitude  of  the  Imperial  government 
of  Germany,  it  is  manifest  that  the  Appam  was  not.brought  here  in  any 
other  character  than  as  a  prize,  captured  at  sea  by  a  cruiser  of  the  Ger- 
man navy,  and  that  the  right  to  keep  her  here,  as  shown  in  the  attitude 
of  the  German  government  and  in  the  answer  to  the  libel,  was  rested 
principally  upon  the  Prussian- American  Treaty  of  1799. 

The  principles  of  international  law  recognized  by  this  government, 
leaving  the  treaty  aside,  will  not  permit  the  ports  of  the  United  States 
to  be  thus  used  by  belligerents.  If  such  use  were  permitted,  it  would 
constitute  of  the  ports  of  a  neutral  country  harbors  of  safety  into  which 
prizes,  captured  by  one  of  the  belligerents,  might  be  safely  brought  and 
indefinitely  kept. 

From  the  beginning  of  its  history  this  country  has  been  careful  to 
maintain  a  neutral  position  between  warring  governments,  and  not  to 
allow  the  use  of  its  ports  in  violation  of  the  obligations  of  neutrality ; 


Ch.  15)       BELLIGERENT  USE  OF  NEUTRAL  TERRITORY  861 

nor  to  permit  such  use  beyond  the  necessities  arising  from  the  perils  of 
the  seas  or  the  necessities  of  such  vessels  as  to  sea-worthiness,  provi- 
sions and  supplies.  Such  usage  has  the  sanction  of  international  law 
(Dana's  note  to  Wheaton  on  International  Law  [1866,  8th  American 
Edition]  §  391),  and  accords  with  our  own  practice  (Moore's  Digest  of 
International  Law,  vol.  7,  936,  937,  938). 

A  policy  of  neutrality  between  warring  nations  has  been  maintained 
from  1793  to  this  time.  In  that  year  President  Washington  firmly 
denied  the  use  of  our  ports  to  the  French  Minister  for  the  fitting  out  of 
privateers  to  destroy  English  commerce.  This  attitude  led  to  the  enact- 
ment of  the  Neutrality  Act  of  1794,  afterwards  embodied  in  the  Act 
of  1818,  enacting  a  code  of  neutrality,  which  among  other  things  inhib- 
ited the  fitting  out  and  arming  of  vessels;  the  augmenting  or  increas- 
ing of  the  force  of  armed  vessels ;  or  the  setting  on  foot  in  our  terri- 
tory of  military  expeditions;  and  empowering  the  President  to  order 
foreign  vessels  of  war  to  depart  from  our  ports  and  compelling  them 
so  to  do  when  required  by  the  law  of  nations.  Moore  on  International 
Arbitrations,  vol.  4,  3967  et  seq. 

This  policy  of  the  American  government  was  emphasized  in  its  at- 
titude at  the  Hague  Conference  of  1907.  Article  21  of  the  Hague 
Treaty  provides :  "A  prize  may  only  be  brought  into  a  neutral  port  on 
account  of  unseaworthiness,  stress  of  weather,  or  want  of  fuel  or  pro- 
visions. It  must  leave  as  soon  as  the  circumstances  which  justified  its 
entry  are  at  an  end.  If  it  does  not,  the  neutral  power  must  order  it 
to  leave  at  once ;  should  it  fail  to  obey,  the  neutral  power  must  employ 
the  means  at  its  disposal  to  release  it  with  its  officers  and  crew  and  to 
intern  the  prize  crew." 

Article  22  provides :  "A  neutral  power  must,  similarly,  release  a 
prize  brought  into  one  of  its  ports  under  circumstances  other  than  those 
referred  to  in  article  21." 

To  these  articles,  adherence  was  given  by  Belgium,  France,  Austria- 
Hungary,  Germany,  the  United  States,  and  a  number  of  other  nations. 
They  were  not  ratified  by  the  British  government.  This  government 
refused  to  adhere  to  article  23,  which  provides :  "A  neutral  power  may 
allow  prizes  to  enter  iis  ports  and  roadsteads,  whether  under  convoy 
or  not,  when  they  are  brought  there  to  be  sequestrated  pending  the  de- 
cision of  a  prize  court.  It  may  have'  the  prize  taken  to  another  of  its 
ports.  If  the  prize  is  convoyed  by  a  war-ship,  the  prize  crew  may  go 
on  board  the  convoying  ship.  If  the  prize  is  not  under  convoy,  the 
prize  crew  are  left  at  liberty." 

And  in  the  proclamation  of  the  convention  the  President  recited  the 
resolution  of  the  Senate  adhering  to  it,  subject  to  the  "reservation  and 
exclusion  of  its  article  23  and  with  the  understanding  that  the  last 
clause  of  article  3  of  the  said  Convention  implies  thf  duty  of  a  neutral 
power  to  make  the  demand  therein  mentioned  for  the  return  of  a  ship 


862  RIGHTS  AND  DUTIES   OF  NATIONS  IN  TIME   OF  WAR         (Part  3 

captured  within  the  neutral  jurisdiction  and  no  longer  within  that  ju- 
risdiction."   36  Stat.  pt.  II,  p.  2438. 

While  this  treaty  may  not  be  of  binding  Obligation,  owing  to  lack 
of  ratification,  it  is  very  persuasive  as  showing  the  attitude  of  the 
American  government  when  the  question  is  one  of  international  law ; 
from  which  it  appears  clearly  that  prizes  could  only  be  brought  into 
our  ports  upon  general  principles  recognized  in  international  law,  on 
account  of  unseaworthiness,  stress  of  weather,  or  want  of  fuel  or  pro- 
visions, and  we  refused  to  recognize  the  principle  that  prizes  might 
enter  our  ports  and  roadsteads,  whether  under  convoy  or  not,  to  be 
sequestrated  pending  the  decision  of  a  prize  court.  From  the  history 
of  the  conference  it  appears  that  the  reason  for  the  attitude  of  the 
American  delegates  in  refusing  to  accept  article  23  was  that  thereby 
a  neutral  might  be  involved  in  participation  in  the  war  to 'the  extent 
of  giving  asylum  to  a  prize  which  the  belligerent  might  not  be  able  to 
conduct  to  a  home  port.  See  Scott  on  Peace  Conferences,  1899-1907, 
vol.  II,  p.  237  et  seq. 

Much  stress  is  laid  upon  the  failure  of  this  government  to  proclaim 
that  its  ports  were  not  open  to  the  reception  of  captured  prizes,  and  it 
is  argued  that  having  failed  to  interdict  the  entrance  of  prizes  into  our 
ports  permission  to  thus  enter  must  be  assumed.  But  whatever  privi- 
lege might  arise  from  this  circumstance  it  would  not  warrant  the  at- 
tempted use  of  one  of  our  ports  as  a  place  in  which  to  store  prizes  in- 
definitely, and  certainly  not  where  no  means  of  taking  them  out  are 
shown  except  by  the  augmentation  of  her  crew,  which  would  be  a  clear 
violation  of  established  rules  of  neutrality. 

As  to  the  contention  on  behalf  of  the  appellants  that  article  XIX 
of  the  Treaty  of  1799  justifies  bringing  in  and  keeping  the  Appam 
in  an  American  port,  in  the  situation  which  we  have  outlined,  it  appears 
that  in  response  to  a  note  from  His  Excellency,  the  German  Ambassa- 
dor, making  that  contention,  the  American  Secretary  of  State,  consid- 
ering the  treaty,  announced  a  different  conclusion  (Diplomatic  Cor- 
respondence with  Belligerent  Governments,  supra,  p.  335  et  seq.) ;  and 
we  think  this  view  is  justified  by  a  consideration  of  the  terms  of  the 
treaty.     *     *     * 

It  remains  to  inquire  whether  there  was  jurisdiction  and  authority 
in  an  admiralty  court  of  the  United  States,  under  these  circumstances, 
to  order  restoration  to  an  individual  owner  of  the  vessel  and  cargo. 

The  earliest  authority  upon  this  subject  in  the  decisions  of  this  court 
is  found  in  the  case  of  Glass  v.  The  Sloop  Betsey,  3  Dall.  6,  1  L.  Ed. 
485,  decided  in  1794,  wherein  it  appeared  that  the  commander  of  the 
French  privateer,  the  Citizen  Genet,  captured  as  a  prize  on  the  high 
seas  the  sloop  Betsey  and  sent  the  vessel  into  Baltimore,  where  the 
owners  of  the  sloop  and  cargo  filed  a  libel  in  the  District  Court  of 
Maryland,  claiming  restitution  because  the  vessel  belonged  to  sub- 
jects of  the  king  of  Sweden,  a  neutral  power,  and  the  cargo  was  owned 


Ch.  15)       BELLIGERENT  USB  OF  NEUTRAL  TERRITORY  863 

jointly  by  Swedes  and  Americans.  The  District  Court  denied  juris- 
diction, the  Circuit  Court  affirmed  the  decree,  and  an  appeal  was  pros- 
ecuted to  this  court.  The  unanimous  opinion  was  announced  by  Mr. 
Chief  Justice  Jay,  holding  that  the  District  Courts  of  the  United  States 
possessed  the  powers  of  courts  of  admiralty,  whether  sitting  as  an  in- 
stance or  as  a  prize  court,  and  sustained  the  jurisdiction  of  the  District 
Court  of  Maryland,  and  held  that  that  court  was  competent  to  inquire 
into  and  decide  whether  restitution  should  be  made  to  the  complainants 
conformably  to  the  laws  of  nations  and  the  treaties  and  laws  of  the 
United  States. 

The  question  came  again  before  this  court  in  the  case  of  The  Santis- 
sima  Trinidad,  decided  in  1822,  reported  in  7  Wheat.  283,  5  L.  Ed.  454. 
In  that  case  it  was  held  that  an  illegal  capture  would  be  invested  with 
the  character  of  a  tort,  and  that  the  original  ow,ners  were  entitled  to 

restitutiofi  when  the  property  was  brought  within  our  jurisdiction. 
*     *     * 

In  the  subsequent  cases  in  this  court  this  doctrine  has  not  been 
departed  from.  L'Invincible,  1  Wheat.  238,  258,  4  L.  Ed.  80;  The 
Estrella,  4  Wheat.  298,  308-311,  4  L.  Ed.  574;  La  Amistad  de  Rues, 
5  Wheat.  385,  390,.  5  L.  Ed.  115. 

It  is  insisted  that  these  cases  involve  illegal  captures  at  sea,  or  vio- 
lations of  neutral  obligation,  not  arising  because  of  the  use  of  a  port 
by  sending  in  a  captured  vessel  and  keeping  her  there  in  violation  of  our 
rights  as  a  neutral.  But  we  are  at  a  loss  to  see  any  difference  in  prin- 
ciple between  such  cases  and  breaches  of  neutrality  of  the  character 
here  involved  in  undertaking  to  make  of  an  American  port  a  depository 
of  captured  vessels  with  a  view  to  keeping  them  there  indefinitely. 
Nor  can  we  consent  to  the  insistence  of  counsel  for  appellant  that  the 
Prize  Court  of  the  German  Empire  has  exclusive  jurisdiction  to  deter- 
mine the  fate  of  the  Appam  as  lawful  prize.  The  vessel  was  in  an 
American  port  and  under  our  practice  within  the  jurisdiction  and  pos- 
session of  the  District  Court  which  had  assumed  to  determine  the  al- 
leged violation  of  neutral  rights,  with  power  to  dispose  of  the  vessel 
accordingly.  The  foreign  tribunal  under  such  circumstances  could  not 
oust  the  jurisdiction  of  the  local  court  and  thereby  defeat  its  judgment. 
The  Santissima  Trinidad,  supra,  7  Wheat.  355,  5  L.  Ed.  454. 

Were  the  rule  otherwise  than  this  court  has  frequently  declared  it 
to  be,  our  ports  might  be  filled  in  case  of  a  general  war  such  as  is  now 
in  progress  between  the  European  countries,  with  captured  prizes  of 
one  or  the  other  of  the  belligerents,  in  utter  violation  of  the  principles 
of  neutral  obligations  which  have  controlled  this  country  from  the 
beginning. 

The  violation  of  American  neutrality  is  the  basis  of  jurisdiction,  and 
the  admiralty  courts  may  order  restitution  for  a  violation  of  such 
neutrality.  In  each  case  the  jurisdiction  and  order  rests  upon  the  au- 
thority of  the  courts  of  the  United  States  to  make  restitution  to  private 


864  RIGHTS  AND   DUTIES   OF   NATIONS  IN  TIME  OF  WAR         (Part  3 

owners  for  violations  of  neutrality  where  offending  vessels  are  within 
our  jurisdiction,  thus  vindicating  our  rights  and  obligations  as  a  neutral 
people. 

It  follows  that  the  decree  in  each  case  must  be  affirmed.  * 

14  It  has  become  the  practice  of  neutral  nations  to  disarm  belligerent  men- 
of-war  who  either  seek  refuge  within  their  ports  or  remain  in  neutral  waters 
after  the  time  fixed  by  the  neutral  power  for  their  departure,  acting  in  ac- 
cordance with  international  law. 

For  the  origin  of  internment,  which  is  a  modern  remedy,  see  7  Moore's  Di- 
gest of  International  Law,  992  et  seq.,  and  article  24  of  Convention  XIII 
Concerning  the  Rights  and  Duties  of  Neutral  Powers  in  Naval  War,  signed  at 
The  Hague  in  1907,  post,  p.  1158. 


Ch.  16)  ASSISTANCE   BY   NEUTRALS  TO  BELLIGERENTS  865 

CHAPTER  XVI 
ASSISTANCE  BY  NEUTRALS  TO  BELLIGERENTS 


SECTION  1.— UNNEUTRAL  SERVICE 


THE  OROZEMBO. 

(High  Court  of  Admiralty,  1807.    6  C.  Rob.  430.) 

This  ^yas  a  case  *  *  *  of  an  American  vessel  that  had  been 
ostensibly  chartered  by  a  merchant  at  Lisbon,  "to  proceed  in  ballast  to 
Macao,  and  there  to  take  a  cargo  to  Amej-ica,"  but  which  had  been 
afterwards,  by  his  directions,  fitted  up  for  the  reception  of  three  mil- 
itary officers  of  distinction,  and  two  persons  in  civil  departments  in 
the  government  of  Batavia,  who  had  come  from  Holland  to  take  their 
passage  to  Batavia,  under  the  appointment  of  the  government  of  Hol- 
land. There  were  also  on  board  a  lady  and  some  persons  in  the  ca- 
pacity of  servants,  making  in  the  whole  seventeen  passengers.     *     *     * 

Sir  W.  Scott>  This  is  the  case  of  an  admitted  American  vessel ; 
but  the  title  to  restitution  is  impugned,  on  the  ground  of  its  having 
been  employed,  at  the  time  of  the  capture,  in  the  service  of  the  enemy, 
in  transporting  military  persons  first  to  Macao  and  ultimately  to 
Batavia.  That  a  vessel  hired  by  the  enemy,  for  the  conveyance  of  mil- 
itary persons,  is  to  be  considered  as  a  transport  subject  to  condemna- 
tion, has  been  in  a  recent  case  held  by  this  court,  and  on  other  occa- 
sions. What  is  the  number  of  military  persons  that  shall  constitute 
such  a  case,  it  may  be  difficult  to  define.  In  the  former  case  there 
were  many,  in  the  present  there  aje  much  fewer  in  number;  but  I 
accede  to  what  has  been  observed  in  argument,  that  number  alone  is 
an  insignificant  circumstance  in  the  considerations  on  which  the  prin- 
ciple of  law  on  this  subject  is  built,  since  fewer  persons,  of  high  qual- 
ity and  character,  may  be  of  more  importance  than  a  much  greater  num- 
ber of  persons  of  lower  condition.  To  send  out  one  veteran  general 
of  France  to  take  the  command  of  the  forces  at  Batavia,  might  be  a 
much  more  noxious  act  than  the  conveyance  of  a  whole  regiment. 
The  consequences  of  such  assistance  are  greater;  and,  therefore,  it  is 
what  the  belligerent  has  a  stronger  right  to  prevent  and  punish.  In 
this  instance  the  military  persons  are  three,  and  there  are,  besides,  two 
other  persons,  who  were  going  to  be  employed  in  civil  capacities  in 
the  government  of  Batavia.     Whether  the  principle  would  apply  to 

1  Part  of  the  statement  of  facts  is  omitted  and  only  extracts  from  the  opin 
ion  are  given. 

Scott  Int.Law— 55 


866  RIGHTS  AND   DUTIES   OF  NATIONS   IN   TIME   OF   WAR         (Part  3 

them  alone,  I  do  not  feel  it  necessary  to  determine.  I  am  not  aware 
of  any  case  in  which  that  question  has  been  agitated ;  but  it  appears 
to  me,  on  principle,  to  be  but  reasonable  that,  whenever  it  is  of  suffi- 
cient importance  to  that  enemy  that  such  persons  should  be  sent  out 
on  the  public  service,  at  the  public  expense,  it  should  afford  equal 
ground  of  forfeiture  against  the  vessel  that  may  be  let  out  for  a  pur- 
pose so  intimately  connected  with  the  hostile  operations. 

It  has  been  argued  that  the  master  was  ignorant  of  the  character 
of  the  service  on  which  he  was  engaged,  and  that,  in  order  to  support 
the  penalty,  it  would  be  necessary  that  there  should  be  some  proof 
of  delinquency  in  him,  or  his  owner.  But,  I  conceive,  that  is  not  nec- 
essary. It  will  be  sufficient  if  there  is  an  injury  arising  to  the  belliger- 
ent from  the  employment  in  which  the  vessel  is  found.  In  the  case 
of  the  Swedish  vessel  ^  there  was  no  mens  rea  in  the  owner,  or  in  any 
other  person  acting  under  his  authority.  The  master  was  an  involun- 
tary agent,  acting  under  compulsion  put  upon  him  by  the  officers  of 
the  French  government,  and,  so  far  as  intention  alone  is  considered, 
perfectly  innocent.  In  the  same  manner,  in  cases  of  bona  fide  igno- 
rance, there  may  be  no  actual  delinquency,  but  if  the  service  is  injuri- 
ous, that  will  be  sufficient  to  give  the  belligerent  a  right  to  prevent  the 
thing  from  being  done,  or  at  least  repeated,  by  enforcing  the  penalty  of 
confiscation.  If  imposition  has  been  practiced,  it  operates  as  force; 
and  if  redress  in  the  way  of  indemnification  is  to  be  sought  against  any 
person,  it  must  be  against  those  who  have,  by  means  either  of  compul- 
sion or  deceit,  exposed  the  property  to  danger.  If,  therefore,  it  was 
the  most  innocent  case  on  the  part  of  the  master,  if  there  was  noth- 
ing whatever  to  affect  him  with  privity,  the  whole  amount  of  this  argu- 
ment would  be  that  he  must  seek  his  redress  against  the  freighter ; 
otherwise  such  opportunities  of  conveyance  would  be  constantly  used, 
and  it  would  be  almost  impossible,  in  the  greater  number  of  cases,  to 
prove  the  knowledge  and  privity  of  the  immediate  offender. 

It  has  been  argued  throughout,*  as  if  the  ignorance  of  the  master 
alone  would  be  sufficient  to  exempt  the  property  of  the  owner  from 
confiscation.  But  may  there  not  be  other  persons,  besides  the  mas- 
ter, whose  knowledge  and  privity  would  carry  with  it  the  same  con- 
sequences? Suppose  the  owner  himself  had  knowledge  of  the  engage- 
ment, would  not  that  produce  the  mens  rea,  if  such  a  thing  is  neces- 
sary? or  if  those  who  had  been  employed  to  act  for  the  owner,  had 
thought  fit  to  engage  the  ship  in  a  service  of  this  nature,  keeping  the 
master  in  profound  ignorance,  would  it  not  be  just  as  effectual,  if 
the  mens  rea  is  necessary,  that  it  should  reside  in  those  persons,  as  in 
the  owner?  The  observations  which  I  shall  have  occasion  to  make 
on  the  remaining  parts  of  this  case  will,  perhaps,  appear  to  justify  such 
a  supposition,  either  that  the  owner  himself,  or  those  who  acted  for 
him  in  Lisbon  or  in  Holland,  were  connusant  of  the  nature  of  the 

2  The  Carolina.    4  C.  Rob.  256  (1802). 

SOOTT  INT.LaW 


Ch.  16)  ASSISTANCE   BY   NEUTRALS   TO   BELLIGERENTS  867 

whole  transaction.  But  I  will  first  state  distinctly,  that  the  princi- 
ple on  which  I  determine  this  case  is,  that  the  carrying  military  per- 
sons to  the  colony  of  an  enemy,  who  are  there  to  take  on  them  the  ex- 
ercise of  their  military  functions,  will  lead  to  condemnation,  and  that 
the  court  is  not  to  scan  with  minute  arithmetic  the  number  of  persons 
that  are  so  carried.  If  it  has  appeared  to  be  of  sufficient  importance 
to  the  government  of  the  enemy  to  send  them,  it  must  be  enough  to 
put  the  adverse  government  on  the  exercise  of  their  right  of  preven- 
tion ;  and  the  ignorance  of  the  master  can  afford  no  ground  of  exculpa- 
tion in  favour  of  the  owner,  who  must  seek  his  remedy  in  cases  of 
deception,  as  well  as  of  force,  against  those  who  have  imposed  upon 
him.  *  *  *  On  every  view  which  I  take  of  the  case,  on  the  prin- 
ciple of  law,  or  on  the  evidence  of  the  facts,  I  have  no  hesitation  in 
pronouncing  that  this  vessel  is  liable  to  be  considered  as  a  transport, 
let  out  in  the  service  of  the  government  of  Holland,  and  that  it  is. 
as  such,  subject  to  condemnation.* 


THE  ATALANTA. 

(High  Court  of  Admiralty,  1808.    6  C.  Rob.  440.) 
Sir  W.  Scott.*    This  ship,  or  rather  that  of  which  the  present  ves- 
sel is  the  representative,  sailed  from  Bremen,  with  a  cargo  of  dry 
goods  and  provisions,  part  of  which  had  been  brought  from  Amster- 
dam on  the  23d  of  July,  1805.    She  touched  at  the  Cape  of  Good  Hope, 

3  See  The  Carolina,  4  C.  Rob.  256  (1802),  and  The  Friendship,  6  C.  Rob.  420 
(1807). 

In  a  note  to  the  latter  case,  the  learned  reporter.  Dr.  Robinson,  said: 

"The  act  of  carrying  the  soldiers  of  the  enemy  has  been  in  former  wars  as- 
similated to  contraband,  by  public  proclamation  and  instructions,  and  has 
been  declared  to  render  the  ship  liable  to  condemnation.  The  declaration  of 
war,  25th  March,  1744,  concludes  with  the  following  clause :  'And  we  do 
hereby  command  our  own  subjects,  and  advertise  all  other  persons  of  what 
nation  soever,  not  to  transport  or  carry  any  soldiers,  arms,  powder,  ammuni- 
tion, or  other  contraband  goods,  to  any  of  their  territories,  lands,  plantations, 
or  countries  of  the  said  French  king,  declaring,  that  whatsoever  ship  or 
vessel  shall  be  met  withal  tran.sporting  or  carrying  any  soldiers,  arms,  powder, 
ammunition,  or  other  contraband  goods,  to  any  of  the  territories,  lands,  plan- 
tations, or  countries  of  the  said  French  king,  the  same  being  taken  shall  be 
condemned  as  good  and  lawful  prize.'  The  same  declaration  is  also  inserted 
in  the  second  article  of  the  instruction  to  cruisers  of  the  same  date ;  also 
in  the  second  article  of  the  instructions  in  the  war  with  Spain,  20th  Dec., 
1718." 

In  The  Svithiod,  L.  R,  [1920G  App.  Cas..  718  (1920),  it  appeared  that  a 
Swedish  ship,  on  its  voyage  from  Buenos  Ayres  to  a  Danish  port,  took  on 
board  at  Pemambuco,  in  Brazil,  a  German  stowaway,  who  was  a  qualified 
third  officer  of  the  German  mercantile  marine.  This  was  done  with  the  con- 
nivance of  the  captain  of  the  Swedish  steamer.  The  .stowaway  was  discover- 
ed at  Halifax,  and  although  the  captain  had  attempted  to  conceal  the  presence 
of  the  stowaway  there  was  no  evidence  that  he  was  carried  at  the  expense  of 
the  German  government,  or  that  he  intended  to  go  to  Germany.  The  I'rivy 
Council  reversed  the  judgment  of  the  lower  court  on  the  ground  that  no  un- 
neutral service  was  performed,  and  that  therefore  the  Svithiod  was  improper- 
ly condemned. 

*  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


868  RIGHTS   AND   DUTIES   OF  NATIONS   IN  TIME   OF   WAR         (Part  3 

and  from  thence  proceeded  to  Batavia,  where  the  cargo  was  sold,  and 
another  cargo  taken  in  for  Tranquebar.  From  that  place  a  returned 
cargo  was  again  brought  to  Batavia,  where  the  present  cargo  of  coffee 
and  sugar  was  purchased,  with  which  the  ship  sailed,  on  her  return 
to  the  river  Jade,  in  December,  1806.  It  appears  that  the  voyage  was 
interrupted  by  a  violent  tempest  or  hurricane,  which  visited  those  seas 
at  that  time,  and  the  vessel  was  driven,  by  distress,  into  the  Isle  of 
France,  where  she  was  sold,  as  not  sea-worthy;  and  the  present  ves- 
sel was  purchased,  which  sailed  with  the  cargo  that  had  been  trans- 
shipped, on  the  12th  of  May,  1807.  The  original  master  had  died  at 
Tranquebar,  where  the  present  master  was  appointed  in  his  place  by 
the  two  supercargoes,  who  were  on  board,  and  whose  conduct  will 

constitute  the  chief  subject  of  observation  in  the  present  inquiry. 
*     *     * 

The  vessel  sailed  from  the  Isle  of  France,  in  May,  *  *  *  f  j^^ 
capture  was  made  on  the  14th  of  July  by  The  Argo.  *  *  *  fhe 
ship's  papers  were  demanded  in  the  usual  manner;  and  again,  aft- 
erwards, on  the  5th  September,  there  was  a  farther  demand,  on  a 
supposition  that  the  former  had  not  been  complied  with.  The  mate 
and  four  men  were  put  on  board  the  Argo,  who  carried  the  vessel  to 
St.  Helena,  where  they  met  his  Majesty's  ship  the  Sir  Edward  Hughes, 
under  the  convoy  of  which  ship  they  afterwards  proceeded  to  England. 
In  the  course  of  the  voyage,  some  apprehensions,  *  *  *  led  to  a 
request  that  Mr.  Meinen,  the  other  supercargo,  might  be  removed  on 
board  the  Sir  Edward  Hughes,  and  that  his  baggage  might  be  examined 
for  concealed  papers,  though  it  is  not  explained  what  had  given  rise 
to  a  suspicion  of  this  kind.  On  this  search  was  found,  in  the  posses- 
sion of  Mr.  Meinen,  in  his  trunk,  a  small  tea-chest,  at  the  bottom  of 
which  were  discovered  those  papers,  *  *  *  which  are  described, 
in  the  letter  from  the  secretary  of  state's  ofhce,  "to  contain  despatches 
from  the  governor  of  the  Isle  of  France  to  the  different  departments 
of  government  in  Paris,  stating  the  distress  of  the  colony,  and  re- 
questing assistance  to  preserve  the  settlement  from  ruin,"     *     *     * 

On  these  grounds,  *  *  *  j  fg^i  myself  bound  to  pronounce,  that 
there  were  papers  received  on  board,  as  public  despatches,  and  know- 
ingly by  those  who  are  the  agents  of  the  proprietors,  *  *  *  and 
that  the  fact  of  a  fraudulent  concealment  and  suppression  is  most  sat- 
isfactorily demonstrated. 

The  question  then  is,  what  are  the  legal  consequences  attaching  on 
such  a  criminal  act?  for  that  it  is  criminal  and  most  noxious  is  scarce- 
ly denied.  What  might  be  the  consequences  of  a  simple  transmission 
of  dispatches,  I  am  not  called  upon  by  the  necessities  of  the  present 
case  to  decide,  because  I  have  already  pronounced  this  to  be  a  fraud- 
ulent case.  That  the  simple  carrying  of  dispatches  between  the  colonies 
and  the  mother  country  of  the  enemy,  is  a  service  highly  injurious  to 
the  other  belligerent,  is  most  obvious.  In  the  present  state  of  the  world, 
in  the  hostilities  of  European  powers,  it  is  an  object  of  great  impor- 


Ch.  16)  ASSISTANCE   BY   NEUTRALS   TO   BELLIGERENTS  869 

tance  to  preserve  the  connection  between  the  mother  country  and  her 
colonies;  and  to  interrupt  that  connection,  on  the  part  of  the  other 
belHgerent,  is  one  of  the  most  energetic  operations  of  war.  The  im- 
portance of  keeping  up  that  connection,  for  the  concentration  of  troops, 
and  for  various  mihtary  purposes,  is  manifest;  and  I  may  add,  for  the 
supply  of  civil  assistance,  also,  and  support,  because  the  infliction  of 
civil  distress,  for  the  purpose  of  compelling  a  surrender,  forms  no 
inconsiderable  part  of  the  operations  of  war.  It  is  not  to  be  argued, 
therefore,  that  the  importance  of  these  dispatches  might  relate  only 
to  the  civil  wants  of  the  colony,  and  that  it  is  necessary  to  show  a 
military  tendency;  because  the  object  of  compelling  a  surrender  being 
a  measure  of  war,  whatever  is  conducive  to  that  event  must  also  be 
considered  in  the  contemplation  of  law,  as  an  object  of  hostility,  al- 
though not  produced  by  operations  strictly  military. 

How  is  this  intercourse  with  the  mother  country  kept  up,  in  the  time 
of  peace?  by  ships  of  war  or  by  packets  in  the  service  of  the  state. 
If  a  war  intervenes  and  the  other  belligerent  prevails  to  interrupt  that 
communication,  any  person  stepping  in  to  lend  himself  to  effect  the 
same  pui-pose,  under  the  privilege  of  an  ostensible  neutral  character, 
does,  in  fact,  place  himself  in  the  service  of  the  enemy-state,  and  is 
justly  to  be  considered  in  that  character.  Nor  let  it  be  supposed  that 
it  is  an  act  of  light  and  casual  importance.  The  consequence  of  such 
a  service  is  indefinite,  infinitely  beyond  the  effect  of  any  contraband 
that  can  be  conveyed.  The  carrying  of  two  or  three  cargoes  of  stores 
is  necessarily  an  assistance  of  a  limited  nature;  but  in  the  transmis- 
sion of  dispatches  may  be  conveyed  the  entire  plan  of  a  campaign,  that 
may  defeat  all  the  projects  of  the  other  belligerent  in  that  quarter  of 
the  world.  It  is  true,  as  it  has  been  said,  that  one  ball  might  take  ofif 
a  Charles  XII,  and  might  produce  the  most  disastrous  effects  in  a  cam- 
paign; but  that  is  a  consequence  so  remote  and  accidental,  that  in 
the  contemplation*  of  human  events  it  is  a  sort  of  evanescent  quantity 
of  which  no  account  is  taken ;  and  the  practice  has  been  accordingly, 
that  it  is  in  considerable  quantities  only  that  the  offence  of  contraband 
is  contemplated.  The  case  of  dispatches  is  very  different ;  it  is  im- 
possible to  limit  a  letter  to  so  small  a  size  as  not  to  be  capable  of  pro- 
ducing the  most  important  consequences  in  the  operations  of  the  en- 
emy. It  is  a  service,  therefore,  which,  in  whatever  degree  it  exists,  can 
only  be  considered  in  one  character,  as  an  act  of  the  most  noxious  and 
hostile  nature.  It  has  accordingly  been  so  held  in  decided  cases,  that 
fully  recognize  the  principle;  for  on  this  principle  The  Constitution,^ 
Tate,  was  condemned.     *     *     * 

In  all  these  cases  the  principle  was  uniformly  asserted,  although  the 
circumstances,  under  which  the  fact  appeared,  did  not  lead  the  court 
to  consider  it  with  that  particularity  which  the  nature  of  the  present 
case  requires.     Unless,  therefore,  it  can  be  said,  that  there  must  be 

0  I^ords,  14fli  July,  1802. 


870  RIGHTS  AND   DUTIES   OF   NATIONS   IN  TIME   OP  WAR         (Part  3 

a  plurality  of  offences  to  constitute  the  delinquency,  it  has  already  been 
laid  down  by  the  Superior  Court,  in  The  Constitution,  that  the  fraud- 
ulent carrying  the  dispatches  of  the  enemy  is  a  criminal  act,  which 
will  lead  to  condemnation.  Under  the  authority  of  that  decision, 
then,  I  am  warranted  to  hold,  that  it  is  an  act  which  will  affect  the 
vehicle,  without  any  fear  of  incurring  the  imputation,  which  is  some- 
times strangely  cast  upon  this  court,  that  it  is  guilty  of  interpolations 
in  the  laws  of  nations.  If  the  court  took  upon  itself  to  assume  prin- 
ciples in  themselves  novel,  it  might  justly  incur  such  an  imputation; 
but  to  apply  established  principles  to  new  cases,  cannot  surely  be  so 
considered.  All  law  is  resolvable  into  general  principles.  The  cases 
which  may  arise  under  new  combinations  of  circumstances,  leading  to 
an  extended  application  of  principles,  ancient  and  recognized,  by  just 
corollaries,  may  be  infinite;  but  so  long  as  the  continuity  of  the 
original  and  established  principles  is  preserved  pure  and  unbroken,  the 
practice  is  not  new,  nor  is  it  justly  chargeable  with  being  an  innova- 
tion on  the  ancient  law ;  when,  in  fact,  the  court  does  nothing  more 
than  apply  old  principles  to  new  circumstances.  If,  therefore,  the  de- 
cision, which  the  court  has  to  pronounce  in  this  case,  stood  on  prin- 
ciple alone,  I  should  feel  no  scruple  in  resting  it  on  the  just  and  fair 
application  of  the  ancient  law.  But  the  fact  is,  that  I  have  the  direct 
authority  of  the  Superior  Court  for  pronouncing,  that  the  carrying  the 
dispatches  of  the  enemy,  brings  on  the  confiscation  of  the  vehicle  so 
employed. 

It  is  said,  that  this  is  more  than  is  done  even  in  cases  of  contraband ; 
and  it  is  true,  with  respect  to  the  very  lenient  practice  of  this  coun- 
try, which,  in  this  matter  recedes  very  much  from  the  correct  princi- 
ple of  the  law  of  nations,  which  authorizes  the  penalty  of  confiscation. 
This  is  rightly  stated,  by  Bynkershoek,  to  depend  on  this  fact,  whether 
the  contraband  is  taken  on  board  with  the  actual  or  presumed  knowl- 
edge of  the  owner.  I  say  presumed  knowledge,  because  the  knowledge 
of  the  master  is  in  law,  the  knowledge  of  the  owner;  "si  sciverit,  ipse 
est  in  dolo,  et  navis  publicabitur."  Bynker.  I,  P.  c.  12,  95.  This 
country,  which,  however  much  its  practice  may  be  misrepresented 
by  foreign  writers,  and  sometimes  by  our  own,  has  always  adminis- 
tered the  law  of  nations  with  lenity,  adopts  a  more  indulgent  rule, 
inflicting  on  the  ship  only  a  forfeiture  of  freight  in  ordinary  cases  of 
contraband.  But  the  offence  of  carrying  dispatches  is,  it  has  been  ob- 
served, greater.  To  talk  of  the  confiscation  of  the  noxious  article,  the 
dispatches,  which  constitutes  the  penalty  in  contraband,  would  be  ridic- 
ulous. There  would  be  no  freight  dependent  on  it,  and  therefore  the 
same  precise  penalty  cannot,  in  the  nature  of  things,  be  applied.  It  be- 
comes absolutely  necessary,  as  well  as  just,  to  resort  to  some  other 
measure  of  confiscation,  which  can  be  no  other  than  that  of  the  vehicle. 

Then  comes  the  other  question,  whether  the  penalty  is  not  also  to 
be  extended  further,  to  the  cargo,  being  the  property  of  the  same  pro- 
prietors— not  merely  ob  continentiam  delicti,  but  likewise  because  the 


Ch.  16)  ASSISTANCE   BY   NEUTRALS   TO   BELLIGERENTS  871 

representatives  of  the  owners  of  the  cargo  are  directly  involved  in  the 
knowledge  and  conduct  of  this  guilty  transaction?  On  the  circum- 
stances of  the  present  case  I  have  to  observe,  that  the  offence  is  as 
much  the  act  of  those  who  are  the  constituted  agents  of  the  cargo,  as 
of  the  master,  who  is  the  agent  of  the  ship.  The  general  rule  of  law 
is,  that  where  a  party  has  been  guilty  of  an  interposition  in  the  war, 
and  is  taken  in  delicto,  he  is  not  entitled  to  the  aid  of  the  court,  to  ob- 
tain the  restitution  of  any  part  of  his  property  involved  in  the  same 
transaction.  It  is  said  that  the  term  "interposition  in  the  war"  is  a 
very  general  term  and  not  to  be  loosely  applied.  I  am  of  opinion,  that 
this  is  an  aggravated  case  of  active  interposition  in  the  service  of  the 
enemy,  concerted  and  continued  in  frauci,  and  marked  with  every 
species  of  malignant  conduct.  In  such  a  case  I  feel  myself  bound, 
not  only  by  the  general  rule,  ob  continentiam  delicti,  but  by  the  di- 
rect participation  of  guilt  in  the  agents  of  the  cargo.  Their  own  im- 
mediate conduct  not  only  excludes  all  favourable  distinction,  but  makes 
them  pre-eminently  the  object  of  just  punishment.  The  conclusion 
therefore  is,  that  I  must  pronounce  the  ship  and  cargo  subject  to  con- 
demnation.    *     *     * 


THE  MADISON. 

(High  Court  of  Admiralty,  1810.    Edwards.  224.) 

This  American  ship  had  been  captured  on  her  former  voyage,  by  a 
French  privateer,  and  carried  into  Dieppe,  from  whence,  after  obtain- 
ing her  liberation,  she  was  proceeding  in  ballast  to  Baltimore.  The 
compulsion,  under  which  the  vessel  went  into  the  blockaded  port  being 
sufficient  to  exempt  her  from  the  penalties  of  a  breach  of  the  block- 
ade, the  counsel  for  the  captors  now  pressed  for  condemnation,  on 
the  ground  that  among  the  papers  on  board  were,  some  dispatches  from 
the  enemy's  government,  which  the  master  had  not  delivered  up.  It 
was  also  objected  that  there  were  eight  passengers  and  a  small  quan- 
tity of  antimony  on  board ;  and,  consequently,  that  the  vessel  must  be 
considered  as  coming  out  with  a  cargo. 

Sir  William  Scott.  Proceedings  have' been  instituted  against  this 
ship  on  various  grounds,  and,  among  others,  on  the  ground  that  she 
had  sailed  from  a  blockaded  port  with  a  cargo  and  a  number  of  pas- 
sengers on  board;  but  it  appears  that  the  few  articles  which  she 
carried  do  not  deserve  the  name  of  a  cargo,  and  the  passengers  are 
not  of  a  description  to  affix  any  hostile  character  to  the  vessel  convey- 
ing them.  The  only  remaining  objection  to  restitution  is,  that  the 
ship  was  carrying  dispatches  from  the  government  of  the  enemy  to 
America;  and  the  question  is,  in  what  manner  this  will  operate  upon 
the  vessel.  The  court,  in  several  instances,  has  had  occasion  to  con- 
sider the  effect  of  carrying  papers  of  a  public  nature,  and  according 
to  the  different  circumstances  of  the  cases  themselves  its  decisions  have 
been  governed.    In  some  it  has  held,  that  the  conveyance  of  dispatches 


872  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

for  the  enemy  did  affix  an  hostile  character  to  the  ship;  in  others,  at- 
tended with  circumstance?-  of  a  different  description,  it  has  held  that 
the  conveyance  of  them  \;a5  not  of  a  criminal  nature,  and  that  though 
the  vessel  was  justly  subject  to  the  inconvenience  of  seizure  and  de- 
tention, it  was  not  liable  to  confiscation.  I  have  now  to  consider  to 
which  of  these  two  classes  the  present  case  is  to  be  assigned.  The 
papers  themselves  had  been  transmitted  to  his  Majesty's  government, 
and  an  application  has  been  made  to  the  secretary  of  state  for  infor- 
mation respecting  their  real  character.  The  manner  in  which  they  came 
on  board  is  stated  by  the  master,  who  says,  in  an  affidavit,  "that  he  re- 
ceived them  from  a  person  who  is  employed  under  Mr.  Armstrong,  the 
American  ambassador  at  Pans,  and  that  he  understood  they  came  from 
him."  Certainly,  if  these  papers  are  really  of  a  hostile  and  illegal 
nature,  it  is  not  in  the  power  of  the  American  ambassador  to  sanc- 
tion them,  or  to  protect  the  conveyance  of  them.  This  court  has  held, 
in  cases  of  convoy,  that  even  the  interposition  of  the  sovereign  of  a 
neutral  country  will  not  take  off  the  criminaUty  of  an  illegal  act;  still 
less  can  an  ambassador,  acting  only  under  a  delegated  authority  from 
his  sovereign,  be  permitted  to  assume  a  privilege  so  injurious  to  a 
belligerent  whose  rights  it  is  his  duty  to  respect. 

But  the  matter  turns  in  this  case  upon  the  character  of  the  papers, 
as  far  as  government  has  thought  it  proper  to  characterize  them.  The 
answer  from  the  secretary  of  state's  office  is,  that  No.  3  contains  a  dis- 
patch from  the  Danish  government  to  the  Danish  consul  general  at 
Philadelphia ;  and  I  think  I  am  to  infer  from  this  account,  negatively, 
that  all  the  other  papers  are  of  an  innocent  nature.  Now  I  am  of 
opinion,  that  a  communication  from  the  Danish  government  to  its  own 
consul  in  America,  does  not  necessarily  imply  any  thing  that  is  of  a 
nature  hostile  or  injurious  to  the  interests  of  this  country.  It  is  not 
to  be  so  presumed ;  such  communications  must  be  supposed  to  have 
reference  to  the  business  of  the  consul  general's  office,  which  is  to 
maintain  the  commercial  relations  of  Denmark  with  America.  If  such 
communications  were  interdicted,  the  functions  of  the  official  persons 
would  cease  altogether.  It  has  been  said  that  this  communication  of 
the  Danish  government  with  one  of  its  delegates  in  another  country, 
through  the  medium  of  the  American  minister  at  Paris,  is  a  matter  in 
which  the  neutral  government  is  not  at  liberty  to  interpose  and  carry 
on,  and  that  the  neutral  government  is'  not  to  concert  measures  with 
the  enemy,  for  the  purpose  of  assisting  in  communications  relating  sole- 
ly to  his  own  commerce.  But  I  take  this  to  be  a  correspondence  in 
which  the  American  government  is  itself  interested.  A  Danish  con- 
sul-general in  America  is  not  stationed  there  merely  for  the  purpose 
of  Danish  trade,  but  of  Danish- American  trade;  his  functions  relate 
to  the  joint  commerce  in  which  the  two  countries  are  engaged,  and  the 
case,  therefore,  falls  within  the  principle  which  has  been  laid  down 
in  the  case  of  The  Caroline,  in  regard  to  dispatches  from  the  enemy 
to  his  ambassador  resident  in  a  neutral  country.     In  the  transmission 


Ch.  IG)  ASSISTANCE  BY  NEUTRALS  TO   BELLIGERENTS  873 

of  these  papers  America  may  have  a  concern  and  an  interest  also ;  and, 
therefore,  the  case  is  not  analogous  to  those  in  which  neutral  vessels 
have  lent  their  services  to  convey  dispatches  between  an  enemy's  col- 
ony and  the  mother  country.  Here  there  is  no  such  departure  from 
neutrality  as  to  subject  the  vessel  to  confiscation ;  yet  I  cannot  help 
observing  that  the  conveyance  of  papers  of  this  description  for  the 
enemy,  by  American  vessels,  is  a  practice  of  which  they  would  do 
well,  for  various  reasons  affecting  their  own  safety  and  convenience, 
to  be  more  abstemious  in  the  indulgence  than  the  observation  of  this 
court  enables  it  to  say  they  are. 

In  this  case  the  favorable  presumption  arising  from  the  papers  is 
strengthened  by  the  character  of  the  person  from  whom  they  were 
received ;  for  it  is  a  presumption  which  I  am  bound  to  maintain,  that 
as  the  neutral  master  received  these  dispatches  from  the  hands  of  the 
American  minister,  there  is  in  that  circumstance  a  guaranty  of  the 
innocence  of  his  conduct.  This  case  is  clearly  not  of  a  nature  to  call 
for  serious  judicial  animadversion,  and  I  shall,  therefore,  restore  the 
ship,  giving  the  captors  their  expenses. 


THE  GAUNTLET. 

(Privy  Council,  1872.     L.  R.   [1871-73],  4  P.  C.  App.  Cas.  184.) 

Their  Lordships  reserved  judgment,  which  was  now  delivered  by 
Lord  Justice  James  :  ® 

In  this  case  the  crown  sought  the  condemnation  of  the  respondent's 
ship,  the  Gauntlet,  for  a  violation  of  the  Foreign  Enlistment  Act. 
The  learned  judge  of  the  Court  of  Admiralty  found  that  there  was 
no  such  violation,  and  dismissed  the  petition  of  the  Queen's  proctor 
with  costs. 

The  crown,  by  the  present  appeal,  complains  of  the  finding  and  dis- 
missal ;  and  further,  that  if  the  decree  in  this  respect  were  well  found- 
ed, the  Court  of  Admiralty  had  no  jurisdiction  to  award  costs  against 
the  crown. 

The  facts  of  the  case  are  not  in  dispute,  and  may  be  briefly  sum- 
marized. The  respondent's  steam-tug,  under  an  agreement  with  the 
French  consul,  made  by  one  of  her  owners  and  the  master,  left  its 
anchorage  near  the  Ryde  Pier  to  go  to  a  vessel  called  the  Lord  Brough- 
am, lying  a  few  miles  off  in  British  waters,  for  the  purpose  of  towing 
her  across  to  Dunkirk  Roads,  and  did  accordingly  so  tow  her.  The 
Lord  Brougham  was,  and  was  (as  their  Lordships  have  no  doubt)  \rell 
known  to  all  parties  concerned  to  be,  a  German  merchantship,  which 
had  been  captured  by  a  French  cruiser,  and  then  was  French  prize 
of  war.  She  had  on  board  a  French  officer  and  a  French  prize  crew, 
with  some  of  the  original  crew  as  prisoners.    The  crown  contends  that 

«  The  statement  of  facts  is  omitted. 


874  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   WAR         (Part  3 

sending  an  English  steam-tug  expressly  for  the  purpose  of  towing  a 
prize  to  the  captor's  waters  is  dispatching  a  ship  from  the  United  King- 
dom for  the  purpose  of  taking  part  in  the  naval  service  of  the  bel- 
ligerent power,  and  is,  therefore,  within  the  words  and  plain  meaning 
of  the  prohibition. 

On  the  part  of  the  respondent  it  is  urged  that,  at  all  events,  there 
was  no  conscious  violation  of  the  law ;  that  the  ship  engaged  in  the 
transaction  in  the  ordinary  course  of  business,  just  as  it  would  have 
towed  any  other  ship  across,  and  for  the  ordinary  remuneration  for 
such  service;  and  that,  in  truth,  the  immediate  cause  of  the  hiring 
of  the  tug  was  the  pressure  of  an  English  authority  who  insisted  on 
the  prize  no  longer  remaining  in  British  waters.  The  Solicitor  General, 
on  behalf  of  the  crown,  did  not  contest  what  may  be  called  the  moral 
innocence  of  the  respondents,  but  insisted — and  in  their  Lordships' 
opinion  unanswerably — that  parties  knowing  the  facts  constituting  their 
act  a  legal  offence  cannot  be  heard  in  a  court  of  law  to  allege  that  they 
were  ignorant  of?  or  had  forgotten,  or,  what  is  more  probable  here, 
never  thought  of  the  law.  These  are  matters  for  the  indulgent  con- 
sideration of  the  crown,  but  not  matters  which  the  Court  of  Admiralty 
or  this  board  has  any  jurisdiction  to  deal  with. 

It  was  much  pressed  in  the  court  below,  and  again  before  their  Lord- 
ships, that  the  statute  being  a  penal,  or,  as  it  was  phrased,  a  highly 
penal  one,  it  was  to  be  construed  strictly.  It  appears  to  their  Lord- 
ships necessary  to  say  a  few  words  as  to  this  topic,  which  is  so  often 
pressed  in  argument.  No  doubt  all  penal  statutes  are  to  be  construed 
strictly,  that  is  to  say,  the  court  must  see  that  the  thing  charged  as  an 
offence  is  within  the  plain  meaning  of  the  words  used,  and  must  not 
strain  the  words  on  any  notion  that  there  has  been  a  slip,  that  there 
has  been  a  casus  omissus,  that  the  thing  is  so  clearly  within  the  mis- 
chief that  it  must  have  been  intended  to  be  included  and  would  have 
been  included  if  thought  of.  On  the  other  hand,  the  person  charged 
has  a  right  to  say  that  the  thing  charged,  although  within  the  words,  is 
not  within  the  spirit  of  the  enactment.  But  where  the  thing  is  .brought 
within  the  words  and  within  the  spirit,  there  a  penal  enactment  is  to 
be  construed,  like  any  other  instrument,  according  to  the  fair  common- 
sense  meaning  of  the  language  used,  and  the  court  is  not  to  find  or 
make  any  doubt  or  ambiguity  in  the  language  of  a  penal  statute,  where 
such  doubt  or  ambiguity  would  clearly  not  be  found  or  made  in  the 
same  language  in  any  other  instrument. 

It  was  contended  in  the  court  below,  but  without  success,  that  the 
words  in  the  prohibitory  clause  were  to  be  restricted  by  the  words  in 
the  definition  clauses,  and  that  contention  has  been  repeated  here.  In 
the  court  below  that  argument  was  used  in  support  of  a  contention 
that  "steam-tug"  was  not  within  the  definition;  here,  in  support  of 
the  contention,  that  the  uses  are  limited  to  the  uses  specifically  men- 
tioned in  the  definition.  The  words,  however  (as  was  pointed  out  by 
the  learned  judge),  are  not  "shall  mean,"  but  "shall  include."     In 


Ch.  16)  ASSISTANCE   BY   NEUTRALS   TO   BELLIGERENTS  875 

some  of  the  clauses  in  the  same  part  of  the  act  the  other  words  "shall 
mean"  are  used,  and  in  the  other  clauses  in  which  the  words  "shall 
include"  are  used,  the  most  absurd  consequences  would  follow  if  the 
words  "shall  include"  were  construed  as  equivalent  to  "shall  mean," 
e.  g.,  the  clause  as  to  what  shall  be  included  under  the  words  "United 
Kingdom."  Indeed,  as  to  this  particular  clause  itself,  consequences  no 
less  absurd  would  follow  if  the  things  included  were  to  be  considered 
as  an  exhaustive  enumeration,  and  so  as  to  be  the  only  things  comprised. 
Their  Lordships  have,  therefore,  no  hesitation  in  concurring  with  the 
learned  judge  that  the  words  in  the  definition  can  have  no  effect  in  re- 
stricting the  meaning  to  be  put  on  the  words  of  the  prohibitory  section. 
And  the  whole  question  is  really,  what  is  the  meaning  of  the  words  in 
that  section  "naval  service." 

In  the  court  below  a  good  deal  of  the  argument  appears  to  have 
turned  on,  and  a  good  deal  of  the  judgment  deals  with,  the  question  as 
to  how  far  it  is  essential  to  the  legal  completion  of  a  captor's  title 
by  formal  judicial  condemnation  that  the  prize  should  be  brought  infra 
praesidia  to  give  the  Prize  Court  jurisdiction  to  pronounce  such  con- 
demnation. It  does  not  appear  material  to  their  Lordships  to  consider 
that  question.  It  appears  to  have  been  considered  that  if  it  had  been 
made  out  that  it  was  essential,  then  the  act  of  the  steam-tug  in  going 
to  tow  the  prize  into  French  waters,  and  so  infra  prsesidia,  would  be 
an  act  done  in  the  naval  service  of  the  captor  power. 

But  it  appears  to  have  been  overlooked  that  that  is  not  the  only  way 
in  which,  nor  the  only  object  for  which,  service  can  be  rendered  to 
a  belligerent  in  connection  with  a  prize.  It  would  seem  to  be  quite 
as  important,  to  say  the  least,  to  complete  a  capture  de  facto  by  lodg- 
ing it  in  a  place  of  safety,  as  to  complete  it  de  jure  by  bringing  it  with- 
in the  jurisdiction  of  the  captors'  Prize  Court. 

What  was  the  position  of  the  Lord  Brougham  when  the  Defendants' 
Vessel  undertook  the  towing  of  her  to  French  wajters.  She  had  (sub- 
ject to  the  possibility  of  escape  or  recapture)  ceased  to  be  a  German 
merchantman.  She  certainly  had  not  become  a  French  merchantman. 
She  was  in  the  actual  possession  of  the  French  government.  She  was 
under  the  command  of  a  French  naval  officer,  with  a  crew  of  sailors 
of  the  French  navy,  temporarily  detached  from  the  French  ship  of 
war  for  that  purpose.  The  officer  and  crew  were  still  part  of  the  ship's 
crew — entitled  to  share  in  any  fresh  prize  made  by  the  latter — bound 
to  share  any  prizes  which  thqy  themselves  might  have  made,  as  they 
lawfully  might,  of  any  German  ship  coming  in  their  way.  They  had 
in  our  waters  the  right  of  a  French  man-of-war,  as  against  any  action 
of  our  municipal  law,  in  respect  either  of  their  prisoners  or  their 
booty.  Their  Lordships  agree,  therefore,  with  the  contention  on  the 
part  of  the  crown,  that  it  is  impossible  to  distinguish  such  a  ship,  be- 
cause it  had  been  a  prize,  from  the  case  of  a  tender,  or  a  pinnace,  de- 
tached for  any  purpose  from  a  ship  of  war,  or  any  other  vessel  taken 
up  by  or  for  the  belligerent  power  in  the  course  of  its  naval  operations. 


876  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   WAR         (Part  3 

The  counsel  of  the  respondents  contended,  that  naval  service  must 
mean  service  in  or  directly  connected  with  some  warlike  naval  opera- 
tion. In  their  Lordships'  opinion,  the  detaching  a  prize  crew  after 
capture  to  take  charge  of  the  prize,  and  to  bring  it  and  the  prisoners 
safely  home,  is  essentially  a  warlike  naval  operation — as  much  and  as 
important  a  warlike  operation  as  the  chase  before  the  capture. 

Their  Lordships,  therefore,  have  no  doubt  that  sending  an  English 
steam-tug  for  the  express  purpose  of  taking  the  detached  prize  crew, 
its  prisoners  and  booty,  speedily  and  safely  to  French  waters,  where 
the  prisoners,  prize,  and  booty  would  be  taken  charge  of  by  the  French 
authorities,  and  the  prize  crew  set  free  to  rejoin  and  strengthen  their 
own  ship,  was  dispatching  a  ship  fo^r  the  purpose  of  taking  part  in 
the  naval  service  of  the  belligerent,  within  the  plain  meaning,  the  words 
and  spirit  of  the  act  of  Parliament. 

Their  Lordships  will,  therefore,  humbly  recommend,  that  the  deci- 
sion of  the  Court  of  Admiralty  be  reversed,  and  that,  in  lieu  thereof 
an  order  of  condemnation  be  made  as  prayed  by  the  queen's  proctor. 

On  the  subject  of  costs  it  is  no  longer  the  interest  of  the  respondent 
to  contest  the  proposition  of  the  Solicitor  General,  who  admits  that  his 
principle  is  to  apply  as  well  against  as  in  favour  of  the  crown,  and  their 
Lordships  have,  therefore,  not  had  the  assistance  of  the  arguments  on 
the  other  side,  which  they  would  have  desired  to  hear  if  it  had  been 
necessary  to  pronounce  any  decision  on  the  point.' 

7  In  the  case  of  The  Intel-national,  L.  R.,  (186»-72),  3  Adm.  &  Ecc.  321 
(1871).  it  appeared  that  a  British  vessel  of  that  name  was  about  to  lay  cables, 
in  order  to  complete  telegraphic  communication  between  Dunkerque  and  Ver- 
don,  at  the  mouth  of  the  Garonne.  This  was  in  1870,  during  the  war  between 
France  and  Germany. 

The  International  was  seized  when  about  to  proceed  fi'om  the  port  of  Lon- 
don, to  lay  cables,  on  the  ground  that  such  action  would  be  an  unneutral 
service,  contrary  to  the  Foreign  Enlistment  Act  of  1870.  Sir  Robert  Phillimore 
held  that  the  company  was  entitled  to  have  the  ship  released. 

"Although" — to  quote  the  language  of  the  headnote — "the  court  considered 
it  probable  that  the  line,  when  complete,  would  be  partially  used  for  effecting 
communication  between  the  armies  of  France,  it  held  that  such  probability 
was  not  sufficient  to  divest  the  line  of  its  primary  commercial  character,  or 
to  clothe  the  service  to  be  rendered  by  the  ship  with  the  character  of  a 
'militarv  ov  naval  service'  within  the  meaning  of  the  Foreign  Enlistment  Act. 
1870." 

The  learned  judge  intimated,  as  further  stated  in  the  headnote,  that:  "A 
ship  employed  in  the  service  of  a  foreign  belligerent  state,  to  lay  down  a 
submarine  cable,  the  main  object  of  which  is,  and  is  known  to  be,  the  sub- 
serving of  the  military  operations  of  the  belligerent  state,  is  employed  in  the 
military  or  naval  service  of  that  state  within  the  meaning  of  the  Foreipm  En- 
listment Act,  1870." 

The  immense  service  which  cables  render  to  belligerents  in  the  transmission 
of  news  has  led  to  their  being  (nat  on  the  high  seas ;  especially  in  the  World 
War  of  1914-18.  Hitherto,  cables  had  only  been  cut  within  the  marine  belt 
possessed  by  the  belligerent  cutting  them. 

On  this  subject,  see  the  article  by  I'rofessor  A.  Pearce  Higgins,  on  "Sub- 
marine Cables  and  International  Law,"  British  Year  Book  of  International 
Law.  1921-22,  p.  27. 


Ch.  16)  ASSISTANCE   BY  NEUTRALS   TO   BELLIGERENTS  877 

YANGTSZE  INS.  ASS'N  v.  INDEMNITY  MUTUAL  MARINE 

ASSUR.  CO. 

(Court  of  Appeal,  King's  Bench  Division,  1908.    L.  R.  [1908]  2  K.  B.  Div.  504.) 

Appeal  from  the  judgment  of  Bigham,  J.,  reported  [1908]  1  K.  B. 
910. 

The  action  was  by  assured  against  underwriters  on  a  poUcy  of  rein- 
surance.    *     *     * 

Sir  GoRELL  Barnes,  President.  *  *  *  The  plaintiffs  had  un- 
derwritten a  policy  for  £18,000.  on  the  steamer  Nigretia  at  and  from 
Shanghai  to  Vladivostock,  while  there  for  not  exceeding  twelve  days 
whilst  discharging  the  cargo,  and  thence  to  one  port  in  China  in  bal- 
last. That  policy  contained  a  warranty  "not  to  carry  cargo  other  than 
kerosene  oil,"  and  covered  "the  risk  of  capture."  The  policy  under- 
written by  the  defendants  was  described  as  "being  a  reinsurance  of 
the  Yangtsze  Insurance  Association,  Limited,  subject  to  the  same 
clauses  and  conditions  as  in  the  original  policy,  and  to  pay  as  may 
be  paid  thereon  (but  warranted  free  from  particular  average)  and 
all  clauses  as  in  the  original  policy  including  war  risk."  The  policy 
of  reinsurance  contained  the  following  provision:  "Warranted  no 
contraband  of  war  on  basis  of  cable  dated  31  October,  1904,  copy  of 
which  attached  hereto."  The  copy  of  telegram  attached  was  of  a  tel- 
egram sent  from  the  office  of  the  plaintiff's  at  Shanghai  to  the  plain- 
tiffs' London  office,  which  ran  as  follows :  "S.  S.  Nigretia. — Cargo  oil 
kerosene  only.  We  will  guarantee  that  consul  for  Japan  has  to-day 
written  British  consul  that  kerosene  not  regarded  contraband  by 
Japanese  Government  if  shipped  anywhere.  Cannot  give  further  guar- 
antee." 

At  the  time  a  state  of  war  existed  between  Russia  and  Japan.  The 
steamer  sailed  on  the  insured  voyage  to  Vladivostock,  and  was,  while 
on  that  voyage,  captured  by  a  Japanese  cruiser  and  taken  to  the  port 
of  Sasebo,  in  Japan,  where  she  was  condemned  by  a  Japanese  prize 
court.  The  judgment  of  that  Court  found  that  two  Russian  naval  of- 
ficers, who  had  assumed  German  names,  were  received  on  board  the 
Nigretia  at  Shanghai  as  passengers  to  Vladivostock.  There  was  no 
proof  that  the  captain  or  owners  o.f  the  vessel  knew  that  those  two 
persons  were  Russian  officers,  but,  on  the  other  hand,  the  Japanese 
court  found  that  there  was  no  proof  that  they  were  ignorant  of  the 
fact,  and  the  court  held  that  the  ship  must  be  confiscated  as  having 
been  engaged  in  transporting  these  persons.  The  plaintiffs  paid  on 
the  original  policy  as  for  a  total  loss,  and  then  brought  the  action  on 
the  reinsurance  policy,  claiming  to  be  indemnified  by  the  defendants. 
On  the  trial  Bigham,  J.,  gave  judgment  for  the  plaintiffs. 

To  my  mind,  this  case  does  not  really  raise  the  broader  question  as 
to  the  meaning  in  general  of  the  term  "contraband  of  war."     In  my 


878  RIGHTS  AND   DUTIES   OF  NATIONS   IN   TIME   OF   WAR         (Part  3 

i^iew  the  particular  warranty  relied  vtpon  was  inserted  in  the  policy 
with  the  knowledge  on  the  part  of  both  parties  and  on  the  basis  that 
they  were  dealing  with  a  cargo  of  kerosene  oil,  there  being  a  warranty 
in  the  original  policy  "not  to  carry  cargo  other  than  kerosene  oil" ; 
and  the  copy  telegram  was  attached  for  the  purpose  of  making  it 
clear  what  the  warranty  with  regard  to  that  cargo  was  intended  to  be, 
the  effect  of  it  being  that  the  defendants  undertook  the  reinsurance 
with  a  warranty  as  to  the  cargo  which  only  protected  them  to  the  extent 
indicated  by  the  telegram.  That  warranty,  in  my  opinion,  related  only 
to  the  cargo,  and  therefore  there  was  no  breach  of  the  warranty  in 
the  sense  in  which  I  read  it. 

This  view,  if  correct,  would  reduce  any  observations  on  the  broader 
question  as  to  the  meaning  in  general  of  "contraband  of  war"  to  the 
position  of  obiter  dicta;  but,  as  that  question  has  been  discussed  be- 
fore us,  I  think  it  desirable  that  I  should  state  my  opinion  with  regard 
to  it.  The  defendants'  counsel  has  cited  as  being  in  his  favour  certain 
passages  from  text-books,  in  which  the  authors  were  dealing  with  the 
general  topic  of  the  effect  of  breaches  of  neutraUty  by  reason  of  a 
ship  carrying  persons  or  things  which  she  ought  not  to  carry,  and  the 
carriage  of  which  exposes  her  to  the  risk  of  capture  and  condemna- 
tion. But  it  is  remarkable  that  no  case  has  been  cited  in  which,  in  the 
courts  of  this  country,  persons  have  ever  been  spoken  of  as  being 
"contraband  of  war."  Going  back  to  old  days,  one  of  the  leading  cases 
on  the  subject  is  The  Jonge  Margaretha,  (1799)  1  C.  Rob.  189,  which 
was  a  decision  of  Lord  Stowell,  and  is  included  in  Tudor's  Leading 
Cases  on  Mercantile  Law  (3d  Ed.)  981.  The  learned  editor  of  that 
work,  in  discussing  the  question  what  is  "contraband  of  war"  in  his 
note  to  that  case,  begins  by  saying  that  "one  of  the  most  important  ex- 
ceptions to  the  rule  allowing  neutrals  to  carry  on  commercial  intercourse 
with  the  belligerents  on  both  sides  is  that  which  forbids  them  to  sup- 
ply any  of  them  with  what  is  called  contraband  of  war;  under 
which  term  are  comprehended  all  such  articles  as  may  serve  a  bellig- 
erent in  the  direct  prosecution  of  his  hostile  purposes."  I  think  it 
will  be  found,  on  looking  at  the  numerous  cases  in  which  Lord  Stowell 
and  other  learned  judges  have  dealt  with  the  question  what  is,  and 
what  is  not  "contraband  of  war,"  they  all  relate  to  things,  and  not  to 
persons.  In  my  opinion,  when  one  is  dealing,  as  in  this  case,  with  a 
commercial  contract  made  between  commercial  men  with  regard  to 
insurance,  prima  facie  the  correct  view  to  take  is  that  the  expression 
"contraband  of  war"  is  used  in  the  primary  sense  in  which  it  is  gen- 
erally used,  namely,  as  applicable  to  goods. 

That  this  is  the  natural  meaning  of  the  term  appears  to  be  borne 
out  by  the  definition  of  "contraband"  given  in  the  dictionaries.  For 
instance,  in  the  Oxford  English  Dictionary,  edited  by  Murray,  vol.  2, 
p.  912,  I  find  the  following  meanings  given  under  the  word  "contra- 
band"; 


Ch.  16)  ASSISTANCE   BY  NEUTRALS  TO  BELLIGERENTS  879 

"1.  Illegal  or  prohibited  traffic;   smuggling." 

"2.  Anything  prohibited  to  be  imported  or  exported;  goods  im- 
ported or  exported  contrary  to  law  or  proclamation;   smuggled  goods." 

"3.  (In  full  contraband  of  war.)  Anything  (esp.,  arms,  stores,  or 
other  things  available  for  hostile  purposes)  forbidden  to  be  supplied 
by  neutrals  to  belligerents  in  time  of  war,  and  liable  by  the  law  of 
nations  to  be  captured  and  confiscated." 

There  are  other  meanings  there  given,  the  effect,  of  the  whole  being 
as  it  seems  to  me,  to  shew  that  the  term  "contraband"  in  its  primary 
and  proper  sense  applies  only  to  goods.  Having  regard  to  the  con- 
siderations which  I  have  mentioned,  namely,  that  no  case  has  been 
cited  in  which  in  an  English  court  the  term  "contraband"  has  been 
used  with  regard  to  a  person,  and  .that  the  term  is  defined  in  well- 
known  dictionaries  as  only  relating  to  goods,  and  also  to  the  fact 
that  in  the  works  of  some  text-writers,  particularly  Hall  on  Inter- 
national Law,  pp.  640,  67Z,  the  term  "contraband  of  war"  is  used  as 
relating  only  to  goods,  and  the  expression  "analogues  of  contraband" 
is  employed  by  the  author  when  dealing  with  the  carriage  of  per- 
sons, I  have  no  hesitation  in  saying  that,  in  my  opinion,  if  the  decision 
of  this  case  depended  on  the  broader  question  which  was  dealt  with 
by  Bigham,  J.,  it  ought  to  be  decided  in  accordance  with  his  view  of 
the  matter.  It  is  not  without  interest  to  notice  that,  in  the  declara- 
tions with  regard  to  contraband  which  were  made  at  the  commence- 
ment of  the  Russo-Japanese  War  by  the  Japanese  and  Russian  gov- 
ernments respectively,  and  which  are  to  be  found  set  out  in  the  work 
of  Messrs.  F.  E.  Smith  and  N.  W.  Sibley  on  "International  Law  as 
interpreted  during  the  Russo-Japanese  War,"  the  lists  of  matters  de- 
clared to  be  contraband  appear  to  be  confined  to  things,  and  not  to 
include  persons.  Again,  in  the  Declaration  appended  to  the  Treaty 
of  Paris,  which  was  signed  in  1856  by  the  plenipotentiaries  of  Great 
Britain,  Austria,  France,  Prussia,  Russia,  Sardinia,  and  Turkey,  re- 
specting maritime  law  in  time  of  war,*  the  term  "contraband"  is  used 
in  such  a  way  as  to  indicate  that  only  articles  or  goods  were  referred 
to,  and  not  persons.  I  may  perhaps  be  going  beyond  what  is  necessary 
for  the  decision  of  this  particular  case  in  making  these  observations 
on  the  broader  question  but,  in  my  opinion,  on  the  terms  of  this  par- 
ticular policy  and  also  on  the  broader  ground  to  which  I  have  al- 
luded, there  was  no  breach  of  the  warranty  given,  and  the  appeal 
must  therefore  be  dismissed.* 

Appeal  dismissed. 

8  See  Hertslet's  Commercial  Treaties,  vol.  X,  p.  547;  Wheaton's  Interna- 
tional Law  (4th  Ed.)  p.  803;  E.  A.  Whittuck,  International  Documents,  Lon- 
don, p.  1  (190S). 

9  The  concurring  opinions  of  Lords  Justices  Moulton  and  Fabwell,  are 
omitted. 


880 


EIGHTS  AND  DUTIES   OF  NATIONS  IN  TIME  OF   WAR         (Part  3 


THE  ERSTERN. 

DARBY  et  al.  v.  THE  ERSTERN  et  al. 

(Federal  Court  of  Appeals  of  the  United  States,  1782.    2  Dall.  34,  1  L.  Ed.  277.) 

This  was  an  appeal  from  the  Admiralty  of  the  State  of  Massachu- 
setts Bay,  where  the  brig  and  her  cargo  had  been  acquitted.  The 
case  was  argued  on  the  28th,  29th  and  30th  of  January ;  and,  on  the 
5th  February,  1782,  the  definitive  sentence  of  the  court  was  pro- 
nounced by  Paca  and  Grififin,  the  presiding  commissioners  in  the  fol- 
lowing terms :  . 

By  the  Court:  Upon  the  evidence  in  this  case,  we  are  of  opinion, 
that  the  brig,  at  the  time  of  her  capture,  was  the  property  of  imperial 
subjects  at  Ostend,  and  that  the  cargo  was  British  property,  unpro- 
tected by  the  capitulation  of  Dominica. 

It  is  objected,  "the  brig  is  not  prize,  because  neutral  property."  Neu- 
tral property  cannot  be  captured:  For,  while  the  character  of  neu- 
trality is  preserved,  such  property  is  the  property  of  a  friend,  on 
which  the  rights  of  war  cannot  attach ;  but  the  owners  of  a  ship  may 
violate  their  neutrality,  by  taking  a  decided  part  with  the  enemy :  In 
what  light  is  such  a  ship  then  to  be  considered,  and  what  is  to  be 
done  with  her?  The  law  of  nations  says,  that  a  ship  under  those  cir- 
cumstances, is  in  the  predicament  of  enemy's  property,  and  subject  to 
seizure  and  confiscation. 

But  it  is  said,  "the  ordinance  of  Congress  ascertains  in  what  cases 
the  rights  of  neutrality  are  forfeited ;  that  the  present  case  is  not  com- 
prehended ;  and  therefore,  if  not  protected  by  the  law  of  nations,  yet 
it  is  protected  by  the  ordinance  of  Congress." 

We  are  of  opinion,  that  Congress  did  not  mean,  by  their  ordinance, 
to  ascertain  in  what  cases  the  rights  of  neutrality  should  be  for- 
feited, in  exclusion  of  all  other  cases;  for,  the  instances  not  men- 
tioned are  as  flagrant  as  the  cases  particularized.  The  ordinance  does 
not  specify  the  case  of  a  neutral  vessel  employed  in  carrying  provision 
to  a  place  which  is  besieged,  and  in  want  of  bread :  for,  although  one 
of  the  articles  says,  "You  shall  permit  all  neutral  vessels  freely  to 
navigate  on  the  high  seas,  or  the  coasts  of  America,  except  such  as 
are  employed  in  carrying  contraband  goods  or  soldiers,  to  the  enemy ;" 
yet  another  article  says,  that  the  term  contraband  shall  be  confined  to 
the  articles  there  enumerated,  and  provision  is  omitted.  Were  Con- 
gress asked,  whether  they  meant  to  protect  from  capture  a  neutral 
ship  loaded  with  provision;  and  destined  for  York  and  Gloucester, 
when  besieged  by  the  annies  of  the  United  States  and  France,  no 
one  could  possibly  doubt  what  their  answer  would  be.  The  plain 
and  Obvious  construction  of  the  ordinance  is,  that  while  neutral  ves- 
sels observe  the  rights  of  neutrality,  they  shall  not  be  interrupted  by 


Ch.  16)  ASSISTANCE   BY   NEUTRALS   TO   BELLIGERENTS  881 

American  captures.     Congress  meant  to  pay  a  regard  to  the  rights, 
and  not  to  the  violations  of  neutrality. 

But  it  is  objected,  "that  in  this  case,  if  the  brig  has  violated  the 
rights  of  neutrality,  it  is  because  she  intended  a  violation  of  the 
capitulation  of  Dominica;  that  the  capitulation  of  Dominica  can  only 
be  considered  as  a  local  law,  of  which  there  can  be  no  breach,  until 
the  offending  ship  comes  within  the  civil  jurisdiction  of  the  island; 
that  the  brig  was  captured  before  the  arrival  within  the  jurisdiction 
of  Dominica;  and  that,  therefore,  she  was  captured  before  there 
was  any  violation  of  the  rights  of  neutrality."  If  nothing  could  be 
objected  against  the  brig,  but  an  intentional  violation  of  the  capitula- 
tion, abstractedly  from'  the  consequences,  with  regard  to  the  war 
between  Great  Britain,  France  and  the  United  States,  possibly  such 
reasoning  might  be  conclusive:  but  we  are  of  opinion,  that  the  brig 
has  done  more  than  a  mere  intentional  offence,  with  regard  to  the 
capitulation. 

The  subjects  of  a  neutral  nation  cannot,  consistently  with  neutral- 
ity, combine  with  British  subjects  to  wrest  out  of  the  hands  of  the 
United  States  and  of  France  the  advantages  they  have  acquired  over 
Great  Britain  by  the  rights  of  war ;  for  this  would  be  taking  a  decided 
part  with  the  enemy.  On  the  conquest  of  Dominica  a  capitulation  took 
place,  and  by  that  capitulation,  a  commercial  intercourse  between  Great 
Britain  and  that  island  was  prohibited :  the  object  was  to  weaken  the 
power  of  Great  Britain,  by  lessening  her  naval  and  commercial  re- 
sources. But  what  has  been  the  conduct  of  the  brig,  and  the  imperial 
subjects,  her  owners?  Kender  Mason,  a  British  subject,  establishes  a 
plan  at  Ostend,  by  which  the  commerce  of  Great  Britain  with  Dominica 
is  to  be  kept  up  and  preserved,  through  the  intervention  of  that  port. 
On  this  plan  Liebert,  Beas,  Dardine,  &  Co.,  imperial  subjects,  pur- 
chase at  London  the  brig  Erstern :  Kender  Mason  puts  on  board  a 
cargo  of  British  merchandise,  the  property  of  British  subjects:  the 
brig  clears  out  from  London,  ostensibly  for  Ostend,  and  there  arrives : 
Liebert,  Beas,  Dardine  &  Co.  supply  her  with  false  and  colorable 
papers,  assume  upon  themselves  the  ownership  of  the  cargo,  and  dress 
it  up  in  the  garb  of  neutrality,  to  screen  it  from  detention  and  cap- 
ture :-  the  brig  then  clears  out  for  Dominica,  and  sails  for  that  island 
with  the  cargo  she  took  on  board  at  London. 

Can  such  conduct  consist  with  neutrality?  Can  there  be  a  more 
flagrant  violation  of  it?  Does  it  not  aim  to  wrest  from  France  and 
the  United  States,  the  advantages  they  acquired  by  the  conquest  of 
Dominica?  and  does  it  not  evince  a  frauduent  combination  with 
British  subjects,  and  a  palpable  partiality? 

But  "why  shall  the  rights  of  neutrality  be  broke  by  works  of  su- 
pererogation?    If  the  cargo  was  British  property,  unprotected  by  the 
capitulation,  it  was  then  the  property  of  enemies,  and  as  it  did  not 
consist  of  contraband  articles,  it  was  protected  from  capture  by  the 
Scott  Int.Law— 56 


882  RIGHTS   AND   DUTIES   OP   NATIONS  IN  TIME   OF   WAR         (Part  3 

ordinance  of  Congress :  the  brig,  therefore,  needed  not  to  employ- 
fraud  and  stratagem  to  give  it  the  garb  of  neutrality,  in  order  to 
screen  it  from  capture." 

If  the  offence,  which  the  brig  has  committed,  consisted  in  employ- 
ing fraud  and  stratagem,  merely  to  protect  property  which  belonged 
to  an  enemy,  the  objection  might,  in  consequence  of  the  ordinance  of 
Congress,  be  of  some  force.  But  the  offence  is  not  of  so  limited  a 
nature ;  it  is  far  more  extensive,  and  comprehends  a  flagrant  violation 
of  the  rights  of  neutrality:  it  results  from  a  fraudulent  combination 
with  British  subjects,  to  give  weight  and  energy  to  the  arms  of  Great 
Britain,  by  the  re-establishment  of  a  commerce,  and  its  emoluments, 
which  she  had  lost  by  the  conquest  of  Dominica. 

But,  it  is  objected,  "the  cargo  is  not  prize,  because  it  is  not  con- 
traband, and  all  the  other  effects  and  goods,  though  the  property  of 
an  enemy,  are  exempted  from  capture  by  the  ordinance  of  Congress." 
If  the  Erstern  had  been  employed  in  a  fair  commerce,  such  as  was 
consistent  with  the  rights  of  neutrality,  her  cargo,  though  the  prop- 
erty of  an  enemy,  could  not  be  prize;  because  Congress  have  said,  by 
their  ordinance,  that  the  rights  of  neutrality  shall  extend  protection 
to  such  effects  and  goods  of  an  enemy.  But,  if  the  rights  of  neutrality 
are  violated,  Congress  have  not  said,  that  such  a  violated  neutrality 
shall  give  such  protection :  nor  could  they  have  said  so,  without  con- 
founding all  the  distinctions  between  right  and  wrong. 

Upon  the  whole,  we  are  of  opinion,  that  the  decree  below  be  re- 
versed, and  that  the  said  brig  and  cargo  be  condemned,  as  prize,  for 
the  use  of  the  captors,  without  costs. 


THE  HEINA. 

(French  Prize  Court,  1915.    Journal  OflBciel,  November  7,  1915,  p.  8014) 

In  the  name  of  the  French  people,  the  Prize  Court  has  rendered 
the  following  decision  between: 

On  one  hand,  Mr.  Th.  Olsen,  in  his  capacity  of  captain  of  the  Nor- 
wegian steamer  Heina,  of  the  port  of  Bergen  (Norway),  captured  on 
September  13,  1914,  by  a  cruiser  of  the  Republic,  the  Conde,  and 
conducted  to  Fort-de-France,  and  the  Norwegian  joint-stock  com- 
pany, J.  Ludwig  Mowinckel  Dampskibsselskap,  situated  at  Bergen, 
proprietor  of  the  said  ship  and  represented  by  Mr.  Ludwig  Mowinckel ; 

On  the  other  hand,  the  Minister  of  the  Navy  acting  in  behalf  of  the 
captors  and  the  fund  for  disabled  sailors.     *     *     * 

The  Court,  after  due  deliberation : 

Concerning  the  validity  of  the  capture : 

Whereas,  on  September  13,  1914,  according  to  a  report  of  the 
said  day,  the  Norwegian  steamer  Heina  was  captured  for  transporting 

Scott  Int.Law 


Ch.  16)  ASSISTANCE   BY   NEUTRALS   TO   BELLIGERENTS  883 

contraband  of  war  and  assisting  the  enemy,  by  the   cruiser  of  the 
Republic,  Conde,  off  the  Danish  island  of  Saint  Thomas  (Antilles) ; 

Whereas,  by  a  decision  of  the  Minister  of  the  Navy  brought  to  the 
cognizance  of  the  Court  by  letter  dated  March  28,  1915,  the  proprietor 
of  the  captured  vessel  was  authorized  to  deposit  with  the  fund  for 
disabled  sailors  the  sum  of  675,000  francs,  representing  the  value 
of  the  said  vessel,  which  was  again  placed  at  his  disposal,  all  rights 
reserved ; 

Whereas,  it  appears  from  the  papers  seized  on  board  as  well  as  from 
the  documents  produced  at  the  pleadings,  and  especially  from  the 
declaration  of  the  proprietor  of  the  vessel  and  its  captain  that  the 
steamer  Heina  after  several  successive  charterings,  sailed  on  Septem- 
ber 13,  1914,  in  execution  of  a  charter-party  entered  into  on  August 
4,  1914,  for  the  benefit  of  the  German  company  Hamburg-Amerika 
Linie  and  applied  itself,  contrary  to  neutrality,  to  operations  having  as 
object  the  supply  of  fuel  and  provisions,  under  the  directions  of  a 
German  agent  embarked  for  this  purpose,  to  the  German  naval  forces 
at  the  Antilles  and  in  the  Atlantic ; 

Whereas,  these  facts  are  sufficient  to  justify  the  capture  and  to 
call  for  the  condemnation  of  the  vessel  and  of  its  cargo  for  giving 
assistance  to  the  enemy,  in  conformity  with  the  principles  stated  in 
articles  37  and  46  of  the  Declaration  of  London  of  February  26.  1909 ; 

Whereas,  without  disputing  the  facts  which  led  to  the  capture,  the 
proprietor  of  the  vessel  based  his  objections  on  the  place  where  the 
capture  was  effected  and  concluded  that  it  should  be  declared  null  as 
it  was  made  in  violation  of  the  Danish  territorial  waters ; 

Whereas,  according  to  the  terms  of  article  2  of  Convention  XIII 
of  The  Hague  of  October  18,  1907:  "All  acts  of  hostility,  including 
capture  and  the  exercise  of  the  right  of  search,  committed  by  belligerent 
war-ships  in  the  territorial  waters  of  a  neutral  power,  constitute  a 
violation  of  neutrality  and  are  strictly  forbidden'' — whereas,  the  said 
Convention,  duly  ratified  by  the  governments  of  France,  of  Norway  and 
of  Denmark,  was  promulgated  by  a  decree  dated  December  2,  1910, 
and  whereas,  the  instructions  of  the  Minister  of  the  Navy  upon  the  ap- 
plication of  international  law  in  case  of  war,  dated  December  19,  1912, 
contained  the  following  provisions :  "You  will  conform  strictly  to 
the  prohibitions  imposed  upon  belligerents  by  Hague  Convention 
XIII  of  October  18,  1907,  concerning  the  rights  and  duties  of  neu- 
tral powers  in  case  of  maritime  war.  For  the  application  of  this 
Convention,  you  will  consider  territorial  waters  as  never  extending 
less  than  three  miles  at  low  tide  from  the  coast  or  the  islands  and 
banks  belonging  to  it,  and  never  more  than  cannon-range.  You  will 
find  in  Annex  11  a  table  of  the  powers  *  *  *  which  have  fixed 
the  limit  of  their  territorial  waters,  as  to  the  law  of  war,  at  a  distance 
from  the  coast  exceeding  three  miles." 

Whereas,  although  in  the  matter  of  fisheries  police  Denmark  de- 


SS4  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   WAR         (Part  3 

parted  from  its  traditional  rules  and  admitted  the  three-mile  limit  for 
its  territorial  waters,  in  matters  of  prize  the  limit  of  four  marine  miles 
remained  in  force,  as  expressly  stated  by  the  annex  cited  above ; 

But  whereas,  from  August  30,  the  Conde  cruised  at  a  distance  of 
from  5  to  6  miles  around  St.  Thomas,  thus  blocking  three  ships  of  the 
Hamburg-Amerika  Linie,  and  also  awaiting  the  steamer  Heina,  sig- 
naled as  being  directed  toward  this  island  with  a  cargo  destined  for 
supplying  the  German  cruisers ; 

Whereas,  on  September  13,  about  11  o'clock,  it  perceived  the  Heina 
and  as  this  vessel  did  not  stop  after  a  cannon  shot  had  been  fired,  the 
Conde  put  on  speed  for  the  purpose  of  blocking  its  route ; 

Whereas  with  regard  to  the  degrees  of  latitude  and  longitude,  the 
determination  of  which  is  necessary  in  order  to  place  the  capturing 
ship  and  the  vessel  captured,  the  information  furnished  by  the  account 
of  the  capture,  by  the  state  of  the  signals,  by  the  letter  of  the  cap- 
tain of  the  Heina,  and  by  the  report  of  the  commander  of  the  Conde 
all  differ; 

Whereas  the  information  of  tliis  last  report  dated  January  22,  1915, 
is  to  be  taken  as  the  most  approximately  correct,  and  is  confirmed  by 
the  report  of  July  10,  1915,  according  to  the  terms  of  which  "the  ex- 
act point  of  capture  is  well  without  the  territorial  waters,  at  18°  19' 
north  latitude  and  67°  30'  west  longitude" ; 

Whereas,  this  refers  to  the  position  of  the  steamer  Heina  which  was 
thus  at  a  distance  of  4%  miles  from  the  southern  end  of  the  island  of 
Savanna.     *     *     * 

Concerning  the  subsidiary  conclusions  of  Mr.  Mowinckel : 

Whereas,  it  appears  from  the  papers  attached  to  the  dossier  and 
especially  from  the  affidavit  made  October  16,  1914,  at  New  York,  that 
the  Norwegian  joint-stock  company,  J.  Ludwig  Mowinckel  Damp- 
skibsselskap,  proprietor  of  the  vessel  Heina,  and  represented  by  Mr. 
J.  Ludwig  Mowinckel,  chartered  the  said  ship  by  charter-party  of  Oc- 
tober 8,  1913,  to  the  New  York  &  Bermudez  Company  of  Philadelphia, 
with  an  option  to  recharter  at  the  risk  of  the  charterers ;  that  this  com- 
pany on  July  14,  1914,  rechartered  the  steamer  Heina  to  the  New  York 
&  Puerto  Rico  Steamship  Company,  which  again  rechartered  the  steam- 
er on  August  4,  1914,  to  the  German  company  the  Hamburg-Amerika 
Linie ; 

Wliereas,  Mr.  J.  L.  Mowinckel  did  not  know  of  these  successive 
recharterings,  which  he  could  not  have  prevented  in  any  case,  and 
whereas,  he  had  a  right  to  surmise  that,  following  the  provisions  of 
the  original  charter-party,  the  vessel  could  only  be  used  "for  the  law- 
ful transportation  of  merchandise" ; 

But  whereas,  since  the  validity  of  the  capture  is  recognized,  as  stated 
above,  the  State  can  not  be  sentenced  to  restore  to  Mr.  Mowinckel  the 
sum  deposited  by  him  in  order  to  regain  possession  of  the  said  ship ; 

Whereas,  it  is  possible  to  accede  only  to  the  motion  that  acknowledg- 


Ch.  Id)  ASSISTANCE   BY   NEUTRALS   TO   BELLIGERENTS.  885 

ment  should  be  made  of  the  fact  that  he  (Mr.  Mowinckel)  was  in  ignor- 
ance of  the  illegal  transportation  which  caused  the  capture : 

Decides : 

The  capture  of  the  steamer  Heina  and  of  its  cargo  is  declared  good 
and  valid,  and  the  value  thereof  adjudged  the  rightful  claimants,  in 
conformity  with  the  laws  and  regulations. 

All  effects,  money,  nautical  instruments  and  other  personal  objects 
belonging  to  the  captain  and  crew  are  in  justice  left  at  the  disposition 
of  their  rightful  owners. 

Official  acknowledgment  is  made  of  the  request  of  Mr.  J.  Ludwig 
Mowinckel,  representative  of  the  company  J.  Ludwig  Mowinckel 
Dampskibsselskap,  proprietor  of  the  steamer  Heina,  that  for  all  intents 
and  purposes  he  be  declared  ignorant  of  the  illicit  transportation  that 
caused  the  seizure  of  the  said  vessel  and  its  cargo. 

The  remaining  pleas  of  Mr.  J,  Ludwig  Mowinckel  are  rejected. 

Deliberated  at  Paris  at  the  meeting  of  September  29,  1915.   *  *   *  i® 

1"  The  steamer  Alexandria,  belonging  to  the  German  company  Kosmos  and 
lying  in  the  port  of  San  Francisco,  was  transferred  shortly  after  the  outbreak 
of  the  World  War  to  an  American  company  and  cleared  for  Valparaiso  Octo- 
ber 15,  1914,  under  the  American  flag,  with  a  cargo  to  the  order  of  the  Val- 
paraiso Electric  Tramway  Company,  a  German  concern,  under  her  new  name 
the  Sacramento.  The  steamer  herself  was  consigned  to  the  agent  of  the  Kosmos 
company  in  Valparaiso.  En  route  she  was  met  by  the  German  cruiser  Dres- 
den, which  took  her  to  a  bay  in  the  Juan  Fernandez  Islands,  belonging  to 
Chile.  While  there,  most  of  her  cargo  of  coal  was  taken  by  a  squadron  of 
■German  warships  whose  commandant.  Count  von  Spec,  gave  the  captain  a 
certificate  that  the  coal  had  been  taken  under  the  right  of  "pre-emption," 
adding  that  its  value,  with  damages,  would  be  eventually  paid  by  the  German 
government,  and  ordered  him  to  proceed  to  Valparaiso.  The  captain  of 
the  Sacramento  entered  no  protest  on  the  log.  On  arrival  at  Valparaiso  the 
captain  filed  a  protest  with  the  American  vice  consul.  The  Chilean  govern- 
ment, after  investigation,  held  that  the  Sacramento  should  be  considered  an 
auxiliary  of  the  German  squadron,  and  interned  her,  after  a  notice  to  leave 
the  port  of  Valparaiso  within  24  hours  had  remained  unheeded.  The  Ameri- 
can government  concurred  in  this  view.  Alexandre  Alvarez,  La  grande  guerre 
Europ^enne  et  la  neutrality  du  Chili,  1915,  p.  266. 

In  The  Edna.  L.  R.  [1021]  1  A.  C.  735,  742,  743  (1921),  Lord  Sumner  said,  on 
behalf  of  the  Privy  Council: 

"It  must  be  possible  to  draw  a  line  between  unneutral  service  and  'fleet 
auxiliaries'  and  between  the  cases  in  which  neutrals  can  validly  buy  and  take 
delivery  of  enemy  ships  and  the  cases  in  which  they  cannot ;  otherwise  trans- 
actions which  are  expressly  permitted  to  neutrals  might  be  invalidated  by 
circumstances  of  which  they  had  no  notice  and  could  form  no  estimate." 

His  Lordship  thereupon  attempted  to  draw  the  line,  saying  on  behalf  of  the 
Privy  Council: 

"That  a  vessel  which  is  or  has  been  a  portion  of  the  armed  forces  of  a 
belligerent  cannot  by  a  mere  private  transaction  be  placed  beyond  the  reach 
of  capture  on  the  high  seas  is  well  settled  (The  Minerva,  6  C.  Rob.  396  [ISOT] ; 
U.  S.  V.  The  Etta,  4  Am.  Law  Reg.  [N.  S.l  387.  Fed.  Cas.  No.  15,060  [18641 ; 
The  Georgia,  7  Wall.  32,  19  L.  Ed.  122  [1868],  and  there  is  authority  for  the 
proposition  that  while  a  vessel  formally  incorporated  in  the  enemy  forces  is 
and  continues  to  be.  for  this  and  cognate  purposes,  a  public  ship  of  war,  her 
mere  actual  employment  in  that  capacity  without  formal  incorporation  or 
commission  will  also  bring  upon  her  the  like  disability  (The  Ceylon,  1  Dod. 
105  [1811];  and  cf.  H.  M.  Submarine  E.  14.  36  The  Times  L.  R.  119,  [1920] 
\.  0.  403j).     Various  reasons  have  been  given  for  this  rule,  as  that  transfer- 


886  RIGHTS  AND  DUTIES   OF  NATIONS   IN  TIME  OF  WAR        (Part  3' 

THE  FEDERICO. 

(French  Prize  Court,  1915.    Journal  Officiel,  May  10,  1915,  p.  2995.) 

In  the  name  of  the  French  people,  the  Prize  Court  has  rendered  the 
following  decision  between : 

On  one  hand,  the  proprietor  of  the  Spanish  steamer  Federico  of 
Barcelona,  captured  at  sea  on  October  10,  1914,  by  torpedo-boat  360; 

And,  on  the  other  hand,  the  minister  of  the  Navy,  representing  the 
captors  and  the  fund  for  disabled  sailors.     *     *     * 

The  Court,  after  due  deliberation : 

Concerning  the  regularity  of  the  capture : 

Whereas,  it  appears  from  the  examination  that  on  October  10,  1914, 
the  date  of  the  capture  of  the  Spanish  steamer  Federico  by  torpedo-boat 
360,  the  condition  of  the  sea  did  not  permit  the  staff  of  the  torpedo- 
boat  to  proceed  to  a  thorough  visit  of  the  Federico ;  whereas,  under 

ability  is  an  exception  granted  to  enemy  property  in  favour  of  commerce  anrl 
that  ships  of  war  are  not  articles  of  commerce,  or  that  such  transfers  wonld 
enable  a  belligerent  to  rescue  himself  from  the  disadvantage  into  which  he 
has  fallen  and  so  to  shift  the  disadvantage  to  his  opponent,  or  that  the  ship 
sold  might  afterwards  find  its  way  back  into  the  service  of  the  flag  to  which 
she  had  belonged.  If  a  public  man-of-war  remains  in  a  neutral  port  for  more 
than  the  limited  time  permitted  to  her  by  recognized  rules,  she  has  to  be 
interned,  for  otherwise  the  neutral  state  would  be  rendering  an  indirect 
service  to  a  belligerent  as  such.  If  it  were  open  to  a  subject  of  that  state  to 
buy  her  under  such  circumstances,  the  payment  of  the  price  would  be  a  direct, 
service  to  the  belligerent  of  a  very  real  character,  for  instead  of  a  ship  which 
he  could  not  use,  he  would  get  cash,  which  he  could.  The  precise  foundation 
of  the  rule,  however,  need  not  now  be  determined. 

"In  the  case  of  a  ship  which  is  not  and  never  has  been  a  part  of  the  armed 
forces  of  a  belligerent,  other  tests  may  be  applicable.  Ships  which  enlist  in 
the  service  of  such  armed  forces,  though  not  armed  themselves,  may  naturally 
be  the  subject  of  rules  more  stringent  than  those  which  govern  ordinary  mer- 
chantmen. The  forces  assisted  may  consist  of  single  ships  or  of  whole  fleets. 
Assistance  may  be  rendered  when  in  company  or  when  detached;  it  may  con- 
sist in  the  supply  of  coal  and  stores,  or  in  the  collection  and  forwarding  of 
information.  An  unarmed  ship  may  be  of  service  as  a  decoy  or  as  a  screen: 
the  assistance  may  be  rendered  casually  or  on  a  system,  voluntarily  or  under 
orders,  gratuitously  or  for  hire.  Such  service  is  not  necessarily  confined  to 
ships  of  the  country  to  which  the  fieet  assisted  belongs  or  of  a  country  engaged 
in  the  war  at  all.  Again,  such  a  ship  may  be  captured  in  delicto  and  while 
rendering  the  service  or  after  the  service  has  come  to  an  end.  In  the  latter 
case  different  considerations  may  well  arise,  unless  she  is  to  be  clogged  per- 
petually for  a  single  transgression  and  be  incapable  of  valid  transfer  however 
long  she  may  have  mended  her  ways. 

"There  seems  to  be  no  authority  in  point.  Their  Lordships  considered  the 
case  of  The  Alwina,  34  The  Times  L.  R.  199,  [1918]  A,  C.  444,  as  one  of  the 
carriage  of  contraband  only.  The  neutral  vessel  there  was  released  and  not 
treated  as  if  she  were  a  fleet  auxiliary,  although, it  was  not  disputed  that  the 
ship  and  her  cargo  had  been  dispatched  with  the  object  of  succouring  a  Ger- 
man squadron  at  sea,  and  if  no  services  were  actually  rendered  this  was  due 
to  circumstances  equally  unforeseen  and  unwelcome,  so  far  as  her  Dutch  own- 
ers were  concerned.  The  case,  however,  at  most  throws  light  on  the  liability 
of  such  an  assistant  to  be  subsequently  captured  while  in  the  same  owner- 
ship, and  does  not  purport  to  decide  anything  as  to  the  validity  of  an  inter- 
vening change  of  ownership." 


Ch.  16)  ASSISTANCE   BY   NEUTRALS   TO   BELLIGERENTS  887 

these  circumstances  the  right  of  visit  could  be  regularly  effected  only 
at  the  port  of  Toulon  where  the  vessel  had  been  conducted ; 

Concerning  the  validity  of  the  capture : 

Whereas,  the  Naval  Conference  held  at  London  in  1909  passed  on 
February  26  a  declaration  that  has  not  been  ratified  by  France ;  but 
whereas,  the  decree  of  August  25,  1914,  mentioned  above,  rendered 
the  said  declaration  applicable  during  the  war  with  reservation  as  to 
the  additions  and  modifications  it  made  at  the  same  time ; 

Whereas,  thus  the  provisions  contained  in  the  declaration  and  those 
in  the  decree  together  constitute  a  unilateral  act  of  the  French  govern- 
ment, and  it  belongs  to  the  Prize  Court,  charged  with  its  application,  to 
determine  its  sense  and  scope; 

Whereas,  according  to  the  terms  of  article  45  of  the  Declaration  of 
London,  a  neutral  ship  is  to  be  confiscated  when  the  special  object  of 
its  voyage  is  to  transport  as  passengers  individuals  belonging  to  the 
armed  force  of  the  enemy ; 

A\'hereas,  it  is  proved  from  the  inquiry  that  the  steamer  Federico 
is  not  a  packet  employed  in  the  regular  transportation  of  passengers ; 

Whereas,  at  the  time  of  its  capture  at  sea  the  special  object  of  its 
voyage  was  the  transportation  from  Barcelona  to  Genoa  of  numerous 
German  and  Austro-Hungarian  passengers,  the  great  majority  of 
these  belonging  by  their  age  to  the  classes  mobilized  by  their  respec- 
tive governments  and  traveling  in  response  to  this  call ; 

Whereas,  under  these  circumstances,  these  passengers  should  be  re- 
garded as  incorporated  in  the  armed  force  of  the  enemy  in  the  sense  of 
article  45  cited  above,  and  whereas  the  ship  was  thus,  according  to  the 
terms  of  the  said  article,  subject  to  confiscation: 

Decides : 

The  capture  of  the  Spanish  steamer  Federico,  including  its  fittings, 
equipment  and  accessories,  is  declared  good  and  valid,  and  the  net 
value  thereof  is  adjudged  to  the  rightful  claimants,  in  conformity  with 
the  laws  and  regulations  in  force. 

Deliberated  at  Paris,  March  15  and  16,  1915.     *     *     *  " 

11  "In  the  celebrated  Trent  Case,  occurring  in  1862,  Messrs.  Mason  and 
Slidell  [civilian  commissioners  from  the  Confederate  States  to  Europe]  were 
removed  from  a  British  private  vessel  by  Commodore  Willces  of  the  San 
Jacinto,  a  public  vessel  of  the  United  States.  Great  Britain  insisted  that  the 
rights  of  a  neutral  vessel  not  only  had  been  violated,  for  which  she  demanded 
apology,  but  she  Insisted  that  these  persons  should  be  replaced  and  returned 
on  board  a  British  ship.  This  was  done,  and  they  were  actually  placed  on 
board  a  British  vessel  in  or  near  the  harbor  of  Boston.  They  were  not  British 
subjects,  and  their  return  could  only  have  been  demanded  for  the  reason  that 
they  had  been  torn  from  British  soil,  and  the  sanctity  of  British  soil,  as 
represented  by  a  British  ship,  had  been  violated„.*^tizenship  or  residence  had  ^ 
no  influence  upon  the  question,"  Per  Mr.  .Justice  Hunt  in  Crapo  v.  Kelly,  1^^ 
Wall.  610.  631,  21  L,  Ed.  430  (1872),  -^ 

It  may  be  said  that  Mr.  Seward,  at  that  time  Secretary  of  State,  admitted 
that  these  persons  could  not  lawfully  be  taken  from  the  Trent  at  sea,  but  con- 
tended that  it  might  have  been  brought  in  as  prize.  See  Lawrence's  Wheaton 
<2d  Ed.  1863)  939;   Dana's  Wheaton,  644  (1S66) ;   3  Wliarton's  Digest,  §§  325, 


888  EIGHTS  AND   DUTIES   OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

THE  LEIF  GUNDERSEN. 

(Trench  Prize  Court,  1918.     Journal  Officiel,  Jan.  18,  1919.  p.  709.) 

In  the  name  of  the  French  people,  the  Prize  Court  has  rendered  the 
following  decision  between : 

On  the  one  hand,  the  captain,  owners,  shippers  and  consignees  of 
the  Norwegian  four-masted  bark,  Leif  Gundersen,  captured  at  sea 
on  March  25,  1917,  and  declared  seized  on  May  10,  1917,  by  the 
French  naval  authorities ; 

And,  on  the  other  hand,  the  Minister  of  the  Navy,  acting  in  the 
name  of  the  state,  and  on  behalf  of  the  rightful  claimants  of  the 
proceeds  of  prizes,  according  to  the  laws  and  regulations ;     *     *     * 

Having  heard  M.  H.  Fromageot,  member  of  the  Court,  in  his  report, 
and  M.  Chardenet,  Commissioner  of  the  Government,  in  his  statements 
in  support  of  his  aforementioned  motions: 

The  Court,  after  having  duly  deliberated  thereon : 

Whereas,  according  to  the  report  dated  at  Glasgow,  Scotland,  May 
17,  1917,  the  Norwegian  four-masted  bark  Leif  Gundersen,  from  the 
port  of  Porsgrund,  Norway,  belonging  to  the  firm  Leif  Gundersen  of 
Porsgrund,  laden  with  a  cargo  of  3,067  tons  of  Indian  corn  and  pre- 
viously seized  on  the  high  sea  on  March  25,  1917,  in  the  course  of 
a  voyage  from  Baltimore,  United  States,  to  Odensee,  Denmark,  was 
declared  captured  by  the  French  naval  authorities  as  engaged  contrary 
to  neutrality  in  transporting  enemy  dispatches  in  the  interest  of  the 
enemy ; 

Whereas,  it  appears  from  two  affidavits  of  W.  Knott  and  W.  Park- 
inson, officers  of  the  British  customs  service,  under  date  of  July  16 
and  24,  1917,  that  in  the  course  of  the  stay,  after  visit  and  search,  of 
the  Leif  Gundersen  at  Stornoway  and  later  at  Greenock,  Scotland,  on 

328,  374 ;  Bernard,  A  Historical  Account  of  the  Neutrality  of  Great  Britain, 
187-225  (1870).  For  a  conservative  British  view,  see  Hall,  Int.  Law,  705-708 
(4th  Ed.  1895). 

In  the  Manouba  Case,  between  France  and  Italy,  decided  by  the  Permanent 
Court  of  Arbitration  at  The  Hague,  in  1913,  it  was  held,  inter  alia,  that  the 
Italian  authorities  had  the  right  during  their  war  with  Turkey  to  demand  and 
compel  the  surrender  of  Turkish  passengers  on  the  Manouba,  and,  upon  the 
refusal  of  the  demand,  to  detain  the  vessel  until  it  was  complied  with.  See 
George  Grafton  Wilson's  Hague  Arbitration  Cases,  326  (1915),  and  James 
Brown  Scott's  Hague  Court  Reports,  341  (1916). 

In  the  interesting  case  of  The  Iro-Maru,  Journal  Officiel,  December  25,  1916, 
pp.  11101,  11102,  decided  by  the  French  Prize  Council  in  1916,  the  council, 
adopting  the  conclusions  of  Mr.  Henri  Fromageot,  held  that: 

"According  to  international  law,  application  of  which  is  made  by  article  45 
of  the  Declaration  of  London  of  February  26,  1909,  declared  applicable  under 
certain  reservations  not  pertinent  to  the  case  by  the  Decree  of  November  6, 
1914,  in  force  at  the  time  of  the  capture,  a  vessel  although  of  neutral  or  al- 
lied nationality  [the  Iro-Maru  was  a  Japanese  vessel,  and  therefore  an  ally  of 
France  in  the  World  War],  is  a  legal  prize  if  it  is  engaged  in  a  voyage  the 
special  object  of  which  is  to  transport  an  agent  of  an  enemy  state  charged 
with  carrying  letters  or  news  in  the  interests  of  said  state." 


Ch.  16)  ASSISTANCE   BY  NEUTRALS  TO  BELLIGERENTS  889 

April  7  and  13,  1917,  the  presence  on  board  of  about  3700  enemy 
dispatches  was  declared  and  confirmed ; 

Whereas,  these  dispatches,  destined  for  Germany,  were  not  trans- 
mitted by  a  public  postal  service ; 

Whereas,  it  appears  from  the  reports  made  by  the  French  Postal 
Censorship  Service  at  London  that,  among  these  dispatches  several 
were  addressed  to  the  German  Imperial  Office  of  Foreign  Affairs  at 
Berlin,  coming  especially  from  the  Minister  of  Germany  at  Habana, 
and  from  the  German  consul  at  Florianopolis,  Brazil ; 

Whereas,  others  referred  to  the  disabhng,  to  the  prejudice  of 
French  and  allied  interests,  of  the  machines  of  certain  German  vessels 
which  have  taken  refuge  at  Brazil  and  at  Honolulu,  Hawaii ; 

Whereas,  others  had  as  their  object  either  enemy  propaganda  or  the 
maintenance  of  the  economic  and  commercial  power  of  enemy  enter- 
prises in  South  America ; 

Whereas,  the  nature  and  the  character  of  the  dispatches  thus  seized 
are  not  disputed ; 

Whereas,  it  appears  from  the  examination  which  was  held  that  the 
said  dispatches  were  allowed  to  accumulate  for  a  certain  length  of  time 
pending  opportunities  of  sending  them  into  Germany  by  evading  the 
allied  cruisers; 

Whereas,  the  captain  had  received  instructions  from  Leif  Gunder- 
sen,  the  shipowner,  to  attempt  to  evade  hailing  by  the  allied  cruisers, 
and  whereas,  in  fact  the  Leif  Gundersen  was  at  the  time  it  was  hail- 
ed holding  a  course  tending  to  make  it  possible  to  evade  the  provisions 
laid  down  by  the  allies  to  assure  the  control  of  neutral  vessels  destined 
for  the  neighboring  ports  of  Germany ; 

Whereas,  under  the  control  of  prize  jurisdiction,  every  belligerent  has 
the  right,  by  virtue  of  the  law  of  nations,  to  detain,  by  regular  hailing 
followed  by  capture,  neutral  vessels  from  engaging  in  operations  con- 
trary to  neutrality ; 

Whereas,  in  truth,  the  shipowners  of  the  Leif  Gundersen  allege  that 
they  were  ignorant  of  the  service  rendered  by  their  vessel  to  the 
enemy  interests; 

Whereas,  for  his  part  the  captain  claims  that  he  did  not  know  of 
the  presence  of  the  said  dispatches  on  board  his  vessel  and  that  they 
were  taken  on  and  concealed  without  his  knowledge ; 

But  whereas,  the  court  does  not  have  to  examine  the  foundation  of 
these  allegations  which,  even  if  they  were  considered  correct,  would 
not  be  of  a  nature  to  hinder  the  application  of  the  principle  which  has 
just  been  recalled; 

Whereas,  in  fact  the  above-described  dispatches  related  to  the  war 
and  whereas  their  transport  on  account  or  in  the  interest  of  the 
German  Empire,  the  enemy  of  France,  constituted  a  service  contrary  to 
neutrality  and  of  a  nature  to  assist  the  enemy  in  the  conduct  of  the 
war; 


890  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF  WAR         (Part  3 

Whereas,  consequently,  the  capture  of  the  Leif  Gundersen  for  the 
aforementioned  reasons  is  justified;  and  whereas,  finally,  in  the  reg- 
ister of  the  dossier  nothing  proves  that  the  Leif  Gundersen  was  in  the 
service  of  the  enemy  state  itself  and  should  on  this  account  be  con- 
sidered as  having  lost  the  character  of  a  neutral  vessel ;     *     *     * 

Decides : 

The  capture  of  the  Norwegian  four-masted  bark  Leif  Gundersen,  to- 
gether with  its  rigging,  fittings,  equipment  and  supplies  of  every  na- 
ture effected  on  May  10,  1917,  by  the  French  naval  authorities,  is 
declared  good  and  valid  and  the  value  thereof  shall  be  paid  to  the 
rightful  claimants  of  the  proceeds  of  prizes  in  conformity  with  the 
laws  and  regulations. 

The  objects  and  the  effects  being  the  personal  property  of  the  cap- 
tain and  the  crew  shall  be  restored  to  the  rightful  claimants.     *     *     * 


THE  INDUSTRIE. 

(Sasebo  Prize  Court,  1905.     2  Hurst  &  Bray's  Russian  and  Japanese  Prize 

Cases  [1913]  323.) 

The  Industrie,  owned  by  a  German  subject,  J.  Block,  was  chartered 
by  an  American,  R.  R.  MacDiarmid,  the  proprietor  of  the  Chefoo 
Daily  News,  a  paper  expressing  pro-Russian  views.  She  sailed  from 
Shanghai  to  Tsushima,  returned  to  Shanghai,  and  then  proceeded  to 
cruise  in  the  neighborhood  of  the  Japanese  fleet,  where  she  was  cap- 
tured. She  had  on  board  a  German  subject  purporting  to  act  as  cor- 
respondent of  the  Chefoo  Daily  News  but  both  he  and  the  master  in 
their  evidence  before  the  court  were  disposed  to  accept  the  suggestion 
that  the  ship  was  under  contract  of  sale  to  the  Russian  Government, 
and  that  any  news  obtained  would  be  supplied  to  the  Russian  authori- 
ties. 

The  owner  made  a  claim  for  the  release  of  the  ship,  and  the  case 
came  before  the  Sasebo  Prize  Court,  which  gave  judgment  condemn- 
ing the  ship  on  July  13,  1905.     *     *     * 

The  conclusion  of  the  court  is  as  follows: 

To  watch  one  of  the  belligerents  and  report  military  secrets  to  the 
other  constitutes  unneutral  service,  and  International  Law  allows  the 
condemnation  of  vessels  employed  for  such  a  purpose.  The  claimant 
alleges  that  the  Industrie  was  reporting  for  the  Chefoo  Daily  News, 
that  that  newspaper  was  not  under  the  patronage  of  the  Russian  gov- 
ernment, and  that  the  reporter  on  board  the  vessel  was  an  ordinary 
newspaper  correspondent,  who  watched  impartially  the  movements  of 
both  the  Japanese  and  the  Russian  fleets.  But  the  Chefoo  Daily  News 
is  a  small  paper  which  first  appeared  about  the  time  of  the  outbreak 
of  the  Russo-Japanese  War,  and  had  not  sufficient  means  to  send  out 
a  ship  for  its  own  purposes.     It  is  also  notorious  that  the  newspaper 


Ch.  16)  ASSISTANCE   BY   NEUTRALS   TO   BELLIGERENTS  891 

advocated  the  Russian  cause,  and  deliberately  gave  publicity  in  its 
columns  to  anything  disadvantageous  to  Japan.  Moreover,  in  answer 
to  the  question  whether  he  did  not  think  it  true  that  the  Chefoo  Daily 
News  was  an  organ  of  the  Russian  government,  Bannier  said,  "I  did 
not  know  that  before  but  your  question  makes  me  think  it  is  possible 
that  the  Chefoo  Daily  News  is  receiving  the  patronage  of  the  Russian 
government,  as  it  is  a  small  paper.  At  any  rate,  I  cannot  affirm  that 
the  newspaper  is  not  receiving  patronage  of  the  Russian  govern- 
ment." He  also  answered  another  question  as  follows:  "I  think  that 
my  reports  would  be  transmitted  to  the  Russian  consul  at  Chefoo  or 
Shanghai  and  thence  to  the  Russian  government.  I  did  not  know 
that  when  I  left  Shanghai,  and  my  intention  was  to  report  all  that  I 
saw,  not  only  of  the  Japanese,  but  also  of  the  Russian  fleet.  I  think, 
therefore,  that  all  my  reports  might  assist  the  Russian  government." 
From  these  statements  of  Bannier,  from  similar  statements  of  Uddine, 
the  master,  and  from  the  fact  that  there  was  no  vessel  of  the  Russian 
fleet  to  be  seen  in  the  Eastern  seas  at  that  time,  it  is  reasonable  to 
infer  that  the  Russian  government  took  advantage  of  the  fact  that 
the  Chefoo  Daily  News  was  a  neutral  paper,  subsidized  it,  and  sent 
the  vessel  to  watch  the  Japanese  fleet  and  to  report  military  secrets, 
whilst  ostensibly  collecting  news  for  the  paper,  and  that  the  claimant 
knew  of  the  scheme.  The  ship  must,  therefore,  be  held  to  have  been 
employed  to>  watch  the  movements  of  the  Japanese  fleet  and  to  re- 
port them  to  the  enemy.  Consequently,  she  must  be  condemned.  The 
other  arguments  of  the  claimant  need  not  be  dealt  with. 
Decision  is  therefore  given  as  above.^^ 

12  On  appeal  of  the  Higher  Prize  Court,  the  decision  was  affirmed,  that 
tribunal  saying: 

"For  the  above  reasons  it  is  clear  that  this  ship  attempted  to  discover 
military  secrets,  and  was  employed  by  the  enemy;  and,  therefore,  the  Prize 
Court  was  light  in  condemning  her."    Page  330.  , 

The  Quang-Nam,  2  Hurst  &  Bray's  Russian  and  Japanese  Prize  Cases,  343 
(1905,  1906),  belonged  to  a  French  company  and  was  therefore  a  neutral  ship. 
It  was  captured  in  a  locality  where  information  might  be  had  as  to  Japanese 
defences.  The  court  found  that  the  charter  party  was  not  on  board,  and  that 
the  movements  previous  to  capture  did  not  suggest  an  ordinary  mercantile 
voyage. 

The  Sasebo  Prize  Court  held  on  the  facts  as  found,  that  the  ship  was  em- 
ployed by  the  enemy  government,  and  was  therefore  liable  to  condemnation. 
'•AVhen  a  ship,"  the  court  said,  "though  neutral,  has  taken  part  in  reconnoitering 
the  defences  and  the  movements  of  a  squadron  for  the  assistance  of  the  enemy, 
as  in  this  case,  her  condemnation  is  allowed  by  international  law.  For  these 
reasons,  this  ship  should  be  condemned." 

On  appeal,  the  Higher  Prize  Court  held  that:  "The  Prize  Court  was  therefore 
right  in  holding  that  this  vessel  was  engaged  in  the  duty  of  reconnoitering 
the  condition  of  our  defences  and  the  movements  of  our  fleet  in  the  interests 
of  the  enemy,  and  in  condemning  her  accordingly." 

In  commenting  upon  these  cases  Mr.  J.  A.  Hall  says,  in  his  Law  of  Naval 
Warfare  (2d  Kd..  1921)  p.  241.  note:  "The  same  principles  would  apply  in  the 
ca.se  of  neutral  aircraft  in  private  ownership." 


892  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   WAR         (Part  3 


SECTION  2.— RELATIONS  WITH  INSURGENTS 


DE  WUTZ  V.  HENDRICKS. 

(Court  of  Common  Pleas,  1824.    2  Bing.  314.) 

The  plaintiff  had  proposed  to  raise  a  loan  for  the  Greeks  in  arms 
against  the  government  of  the  Porte.  For  this  purpose  he  lodged  with 
the  defendant,  a  stockbroker,  an  instrument  which  was  alleged  to  be 
a  power  of  attorney,  signed  abroad  by  the  exarch  of  Ravenna,  but 
which  turned  out  to  have  been  fabricated  in  London ;  and  the  defend- 
ant, at  his  request,  procured  to  be  engraved  certain  scrip  receipts,  bear- 
ing a  stamp.  Suspicions  having  arisen  as  to  the  accuracy  of  the  plain- 
tiff's representations,  the  project  for  a  loan  failed,  and  the  defendant 
refused  to  return  to  the  plaintiff  these  papers,  except  upon  receiving 
commission  for  scrip;  which  commission  the  plaintiff  offered  to  pay, 
provided  the  defendant  would  transfer  to  the  plaintiff  the  scrip  on 
which  he  claimed  commission.  No  scrip,  however,  had  ever  been 
raised. 

The  plaintiff  having  in  vain  offered  to  comply  with  all  other  de- 
mands made  by  the  defendant,  sued  in  trover  for  the  papers  specified 
above,  when  the  jury  (at  the  trial  before  Best,  C.  J.,  London  sittings 
after  Trinity  term  last),  being  led  to  believe  that  the  whole  transaction 
was  a  fraud  on  the  part  of  the  plaintiff,  found  a  verdict  for  the  de- 
fendant. 

Pell,  Serjt.,  now  moved  for  a  new  trial,  on  the  ground  that  the  cir- 
cumstance of  the  plaintiff  having  been  engaged  in  a  fraudulent  trans- 
action (admitting  such  to  have  been  the  case)  did  not  deprive  him  of 
property  in  his  own  papers.  If,  instead  of  papers,  he  had  deposited 
a  box  of  jewels  with  the  defendant,  could  it  be  contended  that  the 
defendant  would  have  any  right  to  retain  them  on  this  pretence.  The 
principle  was  the  same  with  respect  to  the  papers,  however  small 
their  value ;  but  in  truth  they  were  of  some  value,  inasmuch  as  an  al- 
lowance would  have  been  made  at  the  stamp-office  for  the  useless 
stamps. 

Best,  C.  J.  It  occurred  to  me  at  the  trial  that  it  was  contrary  to 
the  law  of  nations  (which  in  all  cases  of  international  law  is  adopted 
into  the  municipal  code  of  every  civilized  country),  for  persons  in 
England  to  enter  into  engagements  to  raise  money  to  support  the  sub- 
jects of  a  government  in  amity  with  our  own,  in  hostilities  against 
their  government,  and  that  no  right  of  action  could  arise  out  of  such 
a  transaction.  I  stated  my  opinion  to  the  counsel  for  the  defendant, 
but  he  did  not  ask  for  a  nonsuit,  so  I  permitted  the  cause  to  proceed. 
In  consequence  of  what  I  said,  a  note  has  since  been  sent  me  of  a 


Ch.  16)  ASSISTANCE   BY   NEUTRALS   TO   BELLIGERENTS  893 

case  that  occurred  lately  in  chancery,  in  which  the  Lord  Chancellor  is 
reported  to  have  said  that  English  courts  of  justice  will  afford  no 
assistance  to  persons  who  set  about  to  raise  loans  for  subjects  of  the 
king  of  Spain  to  enable  them  to  prosecute  a  war  against  that  sovereign. 
Had  I  been  aware  that  my  opinion  was  supported  by  such  high  au- 
thority (although  the  counsel  for  the  defendant  would  not  take  the 
objection),  I  should  have  nonsuited  the  plaintiff. 

On  further  consideration,  I  think  that  my  opinion  at  the  trial  was 
right,  and  on  that  ground  we  ought  not  to  grant  a  new  trial.  It  ap- 
peared that  placards  had  been  stuck  up  in  the  city,  stating  that  the 
plaintiff  was  not  authorised  by  the  Greek  government  to  raise  any 
money,  and  that  he  had  been  informed  that  on  account  of  what  was 
stated  in  these  placards  no  money  could  be  raised  for  him.  The  pow- 
er of  attorney,  which  it  was  pretended  was  sent  from  Greece,  was 
proved  to  have  been  manufactured  in  this  country,  but  by  whom  it 
was  executed  did  not  appear.  I  told  the  jury  that,  with  respect  to 
the  power  of  attorney,  there  was  no  evidence  that  any  instrument  of 
that  description  had  ever  come  to  the  hands  of  the  defendant ;  for  by 
power  of  attorney  in  the  declaration,  must  be  understood  an  instru- 
ment duly  executed  as  a  power  of  attorney.  I  further  said,  that  if 
the  plaintiff  was  attempting  a  fraud  on  the  public  by  raising  money  on 
the  false  pretence  of  pledging  the  Greek  government  for  its  repay- 
ment, and  in  furtherance  of  that  attempt  delivered  these  papers  to 
the  defendant,  he  could  maintain  no  action  to  recover  them  back.  The 
jury,  to  my  entire  satisfaction,  found  for  the  defendant. 

The  rest  of  the  court  concurred,  and  Pell  took  nothing. 


KENNETT  et  al.  v.  CHAMBERS. 
(Supreme  Court  of  the  United  States,  1852.    14  How.  38,  14  L.  Ed.  .316.) 

Mr.  Chief  Justice  Taney  delivered  the  opinion  of  the  court.*' 

This  is  an  appeal  from  the  decree  of  the  District  Court  of  the  United 
States  for  the  District  of  Texas. 

The  appellants  filed  a  bill  in  that  court  against  the  appellee,  to  ob- 
tain the  specific  execution  of  an  agreement  which  is  set  out  in  full  in 
the  bill;  and  which  they  alleged  was  executed  at  the  city  of  Cincin- 
nati, in  the  state  of  Ohio,  on  or  about  the  16th  of  September,  1836. 
Some  of  the  complainants  claim  as  original  parties  to  the  contract, 
and  the  others  as  assignees  of  original  parties,  who  have  sold  and  as- 
signed to  them  their  interest. 

The  contract,  after  stating  that  it  was  entered  into  on  the  day  and 
year  above  mentioned,  between  General  T.  Jefferson  Chambers,  of  the 
Texan  army,  of  the  first  part,  and  Morgan  Neville  and  six  others, 

13  The  statement  of  the  case  is  omitted. 


894  RIGHTS  AND   DUTIES   OF   NATIONS   IN  TIME  OP  WAR         (Part  3 

who  are  named  in  the  agreement,  of  the  city  of  Cincinnati,  of  the 
second  part,  proceeds  to  recite  the  motives  and  inducements  of  the 
parties  in  the  following  words : 

"That  the  said  party  of  the  second  part,  being  desirous  of  assisting 
the  said  General  T.  Jefferson  Chambers,  who  is  now  engaged  in  rais- 
ing, arming,  and  equipping  volunteers  for  Texas,  and  who  is  in  want 
of  means  therefor;  and,  being  extremely  desirous  to  advance  the 
cause  of  freedom  and  the  independence  of  Texas,  have  agreed  to 
purchase  of  the  said  T.  Jefferson  Chambers,  of  his  private  estate,  the 
lands  hereinafter  described." 

And  after,  this  recital  follows  the  agreement  of  Chambers,  to  sell 
and  convey  to  them  the  land  described  in  the  agreement,  situated  in 
Texas,  for  the  sum  of  twelve  thousand  five  hundred  dollars,  which 
he  acknowledged  that  he  had  received  in  their  notes,  payable  in  equal 
instalments  of  four,  six,  and  twelve  months,  and  he  covenanted  that 
he  had  a  good  title  to  this  land,  and  would  convey  it  with  general 
warranty.  There  are  other  stipulations,  on  the  part  of  Chambers,  to 
secure  the  title  to  the  parties,  which  it  is  unnecessary  to  state,  as  they 
are  not  material  to  the  questions  before  the  court. 

After  setting  out  the  contract  at  large,  the  bill  avers,  that  the  notes 
given,  as  aforesaid,  were  all  paid ;  and  sets  forth  the  manner  in  which 
the  complainants,  who  were  not  parties  to  the  original  contract,  had 
acquired  their  interest  as  assignees ;  and  charges  that,  notwithstand- 
ing the  full  jyayment  of  the  money.  Chambers,  under  different  pre- 
texts, refuses  to  convey  the  land,  according  to  the  terms  of  his  agree- 
ment. 

It  further  states,  that  they  are  informed  and  believe  that  he  re- 
ceived full  compensation,  in  money,  scrip,  land,  or  other  valuable 
property,  for  the  supplies  furnished  by  him,  and  in  arming  and  equip- 
ping the  Texan  army  referred  to  in  the  said  contract,  and  which 
it  was  in  part  the  object  of  the  said  parties  of  the  second  part  to 
assist  him  to  do,  by  the  said  advances  made  by  them,  as  before  stated, 
and  which  said  advances  did  enable  the  said  Chambers  so  to  do. 

To  this  bill  the  respondent  (Chambers)  demurred,  and  the  principal 
question  which  arises  on  the  demurrer  is,  whether  the  contract  was  a 
legal  and  valid  one,  and  such  as  can  be  enforced  by  either  party  in  a 
court  of  the  United  States.  It  appears  on  the  face  of  it,  and  by  the 
averments  of  the  appellants  in  their  bill,  that  it  was  made  in  Cincin- 
nati, with  a  general  in  the  Texan  army,  who  was  then  engaged  in 
raising,  arming,  and  equipping  volunteers  for  Texas,  to  carry  on  hos- 
tilities with  Mexico ;  and  that  one  of  the  inducements  of  the  appellants, 
in  entering  into  this  contract  and  advancing  the  money,  was  to  assist 
him  in  accomplishing  these  objects. 

The  District  Court  decided  that  the  contract  was  illegal  and  void, 
and  sustained  the  demurrer  and  dismissed  the  bill ;  and  we  think  that 
the  decision  was  right. 


Ch.  16)  ASSISTANCE   BY   NEUTRALS  TO   BELLIGERENTS  895 

The  validity  of  this  contract  depends  upon  the  relation  in  which 
this  country  then  stood  to  Mexico  and  Texas;  and  the  duties  which 
these  relations  imposed  upon  the  government  and  citizens  of  the 
United  States. 

Texas  had  declared  itself  independent  a  few  months  previous  to 
this  agreement.  But  it  had  not  been  acknowledged  by  the  United 
States ;  and  the  constituted  authorities  charged  with  our  foreign  re- 
lations regarded  the  treaties  we  had  made  with  Mexico  as  still  in 
full  force,  and  obligatory  upon  both  nations.  By  the  treaty  of  limits, 
Texas  had  been  admitted  by  our  government  to  be  a  part  of  the  Mexi- 
can territory;  and  by  the  first  article  of  the  treaty  of  amity,  com- 
merce, and  navigation,  it  was  declared,  "that  there  should  be  a  firm, 
inviolable,  and  universal  peace,  and  a  true  and  sincere  friendship  be- 
tween the  United  States  of  America  and  the  United  Mexican  States, 
in  all  the  extent  of  their  possessions  and  territories,  and  between 
their  people  and  citizens  respectively  without  distinction  of  persons  or 
place."  These  treaties,  while  they  remained  in  force,  were,  by  the 
Constitution  of  the  United  States,  the  supreme  law,  and  binding  not 
only  upon  the  government,  but  upon  every  citizen.  No  contract  could 
lawfully  be  made  in  violation  of  their  provisions. 

Undoubtedly,  when  Texas  had  achieved  her  independence,  no  pre- 
vious treaty  could  bind  this  country  to  regard  it  as  a  part  of  the 
Mexican  territory.  But  it  belonged  to  the  government,  and  not  to 
individual  citizens,  to  decide  when  that  event  had  taken  place.  And 
that  decision,  according  to  the  laws  of  nations,  depended  upon  the 
question  whether  she  had  or  had  not  a  civil  government  in  successful 
operation,  capable  of  performing  the  duties  and  fulfilling  the  obliga- 
tions of  an  independent  power.  It  depended  upon  the  state  of  the 
fact,  and  not  upon  the  right  which  was  in  contest  between  the  parties. 
And  the  President,  in  his  message  to  the  Senate  of  December  22,  1836. 
in  relation  to  the  conflict  between  Mexico  and  Texas,  which  was 
still  pending,  says :  "All  questions  relative  to  the  government  of  for- 
eign nations,  whether  of  the  old  or  the  new  world,  have  been  treated 
by  the  United'  States  as  questions  of  fact  only,  and  our  predecessors 
have  cautiously  abstained  from  deciding  upon  them  until  the  clearest 
evidence  was  in  their  possession,  to  enable  them  not  only  to  decide 
correctly,  but  to  shield  their  decision  from  every  unworthy  imputa- 
tion."   Senate  Journal  of  1836-37,  p.  54. 

Acting  upon  these  principles,  the  independence  of  Texas  was  not 
acknowledged  by  the  government  of  the  United  States  until  the  be- 
ginning of  March,  1837.  Up  to  that  time,  it  was  regarded  as  a  part 
of  the  territory  of  Mexico.  The  treaty  which  admitted  it  to  be  so, 
was  held  to  be  still  in  force  and  binding  on  both  parties,  and  every 
effort  made  by  the  government  to  fulfil  its  neutral  obligations,  and  pre- 
vent our  citizens  from  taking  part  in  the  conflict.  This  is  evident, 
from  an  official  communication  from  the  President  to  the  Governor 


896  RIGHTS   AND   DUTIES   OP  NATIONS   IN  TIME   OP   WAR         (Part  3 

of  Tennessee,  in  reply  to  an  inquiry  in  relation  to  a  requisition  for 
militia,  made  by  General  Gaines.  The  despatch  is  dated  in  August, 
1836;  and  the  President  uses  the  following  language:  "The  obliga- 
tions of  our  treaty  with  Mexico,  as  well  as  the  general  principles  which 
govern  our  intercourse  with  foreign  powers,  require  us  to  maintain 
a  strict  neutrality  in  the  contest  which  now  agitates  a  part  of  that  re- 
public. So  long  as  Mexico  fulfils  her  duties  to  us,,  as  they  are  de- 
fined by  the  treaty,  and  violates  none  of  the  rights  which  are  secured 
by  it  to  our  citizens,  any  act  on  the  part  of  the  government  of  the 
United  States,  which  would  tend  to  foster  a  spirit  of  resistance  to  her 
government  and  laws,  whatever  may  be  their  character  or  form,  when 
administered  within  her  own  limits  and  jurisdiction,  would  be  unau- 
thorized and  highly  improper.  Ex.  Doc.  1836,  1837,  Vol.  1,  Doc.  2, 
p.  58. 

And  on  the  very  day  on  which  the  agreement  of  which  we  are 
speaking  was  made  (September  16,  1836),  Mr.  Forsyth,  the  Secretary 
of  State,  in  a  note  to  the  Mexican  minister,  assured  him  that  the  gov- 
ernment had  taken  measures  to  secure  the  execution  of  the  laws  for 
preserving  the  neutrality  of  the  United  States,  and  that  the  public 
officers  were  vigilant  in  the  discharge  of  that  duty.  Ex.  Doc.  Vol.  1,, 
Doc.  2,  pp.  63,  64. 

And  still  later,  the  President,  in  his  message  to  the  Senate  of  De- 
cember 22,  1836,  before  referred  to,  says :  "The  acknowledgment  of  a 
new  state  as  independent,  and  entitled  to  a  place  in  the  family  of  na- 
tions, is  at  all  times  an  act  of  great  delicacy  and  responsibility;  but 
more  especially  so  when  such  a  state  has  forcibly  separated  itself  from 
another,  of  which  it  formed  an  integral  part,  and  which  still  claims 
dominion  over  it."  And,  after  speaking,  of  the  policy  which  our  gov- 
ernment had  always  adopted  on  such  occasions,  and  the  duty  of  main- 
taining the  established  character  of  the  United  States  for  fair  and 
impartial  dealing,  he  proceeds  to  express  his  opinion  against  the 
acknowledgment  of  the  independence  of  Texas,  at  that  time,  in  the 
following  words : 

"It  is  true,  with  regard  to  Texas,  the  civil  authority  of  Mexico 
has  been  expelled,  its  invading  army  defeated,  the  chief  of  the  re- 
public himself  captured,  and  all  present  power  to  control  the  newly 
organized  government  of  Texas  annihilated  within  its  confines.  But, 
on  the  other  hand,  there  is,  in  appearance  at  least,  an  immense  dis- 
parity of  physical  force  on  the  side  of  Mexico.  The  Mexican  repub- 
lic, under  another  executive,  is  rallying  its  forces  under  a  new  leader, 
and  menacing  a  fresh  invasion  to  recover  its  lost  dominion.  Upon 
the  issue  of  this  threatened  invasion,  the  independence  of  Texas  may 
be  considered  as  suspended;  and,  were  there  nothing  peculiar  in  the 
relative  situation  of  the  United  States  and  Texas,  our  acknowledg- 
ment of  its  independence  at  such  a  crisis  would  scarcely  be  regarded 
as  consistent  with  that  prudent  reserve  with  which  we  have  heretofore 
held  ourselves  bound  to  treat  all  similar  questions." 


Ch.  16)  ASSISTANCE   BY   NEUTRALS  TO   BELLIGERENTS  897 

The  whole  object  of  this  message  appears  to  have  been  to  impress 
upon  Congress  the  impropriety  of  acknowledging  the  independence 
of  Texas  at  that  time;  and  the  more  especially  as  the  American  char- 
acter of  her  population,  and  her  known  desire  to  become  a  state  of 
this  Union,  might,  if  prematurely  acknowledged,  bring  suspicion  upon 
the  motives  by  which  we  were  governed. 

We  have  given  these  extracts  from  the  public  documents  not  only 
to  show  that,  in  the  judgment  of  our  government,  Texas  had  not 
established  its  independence  when  this  contract  was  made,  but  to 
show  also  how  anxiously  the  constituted  authorities  were  endeavoring 
to  maintain  untarnished  the  honor  of  the  country,  and  to  place  it 
above  the  suspicion  of  taking  any  part  in  the  conflict. 

This  being  the  attitude  in  which  the  government  stood,  and  this  its 
open  and  avowed  policy,  upon  what  grounds  can  the  parties  to  such 
a  contract  as  this,  come  into  a  court  of  justice  of  the  United  States 
and  ask  for  its  specific  execution  ?  It  was  made  in  direct  opposition  to 
the  policy  of  the  government,  to  which  it  was  the  duty  of  every  citizen 
to  conform.  And,  while  they  saw  it  exerting  all  its  power  to  fulfil  in 
good  faith  its  neutral  obligations,  they  made  themselves  parties  to 
the  war,  by  furnishing  means  to  a  general  of  the  Texan  army,  for 
the  avowed  purpose  of  aiding  and  assisting  him  in  his  military  oper- 
ations. 

It  might  indeed  fairly  be  inferred,  from  the  language  of  the  con- 
tract and  the  statements  in  the  appellants'  bill,  that  the  volunteers 
were  to  be  raised,  armed,  and  equipped  within  the  limits  of  the 
United  States.  The  language  of  the  contract  is:  "That  the  said 
party  of  the  second  part  (that  is  the  complainants),  being  desirous  of 
assisting  the  said  General  T.  Jefferson  Chambers,  who  is  now  engaged 
in  raising,  arming,  and  equipping  volunteers  for  Texas,  and  is  in 
want  of  means  therefor,"  And  as  General  Chambers  was  then  in  the 
United  States,  and  was,  as  the  contract  states,  actually  engaged  at 
that  time  in  raising,  arming,  and  equipping  volunteers,  and  was  in 
want  of  means  to  accomplish  his  object,  the  inference  would  seem  to 
be  almost  irresistible  that  these  preparations  were  making  at  or  near 
the  place  where  the  agreement  was  made,  and  that  the  money  was 
advanced  to  enable  him  to  raise  and  equip  a  military  force  in  the 
United  States.  And  this  inference  is  the  stronger,  because  no  place 
is  mentioned  where  these  preparations  are  to  be  made,  and  the  agree- 
ment contains  no  engagement  on  his  part,  or  proviso  on  theirs,  which 
prohibited  him  from  using  these  means  and  making  these  military 
preparations  within  the  limits  of  the  United  States. 

If  this  be  the  correct  interpretation  of  the  agreement,  the  contract 
is  not  only  void,  but  the  parties  who  advanced  the  money  were  liable 
to  be  punished  in  a  criminal  prosecution,  for  a  violation  of  the  neu- 
trality laws  of  the  United  States.  And  certainly,  with  such  strong 
Scott  Int. Law— 57 


/     898  RIGHTS  AND   DUTIES   OF  NATIONS   IN  TIME  OF  WAR         (Part  -'i 

indications  of  a  criminal  intent,  and  without  any  averment  in  the  bill 
from  which  their  innocence  can  be  inferred,  a  court  of  chancery  would 
never  lend  its  aid  to  carry  the  agreement  into  specific  execution,  but 
would  leave  the  parties  to  seek  their  remedy  at  law.  And  this  ground 
would  of  itself  be  sufficient  to  justify  the  decree  of  the  District  Court 
dismissing  the  bill. 

But  the  decision  stands  on  broader  and  firmer  ground,  and  this 
agreement  cannot  be  sustained  either  at  law  or  in  equity.  The  ques- 
tion is  not  whether  the  parties  to  this  contract  violated  the  neutrality 
laws  of  the  United  States  or  subjected  themselves  to  a  criminal  prose- 
cution; but  whether  such  a  contract,  made  at  that  time,  within  the 
United  States,  for  the  purposes  stated  in  the  contract  and  the  bill  of 
complaint,  was  a  legal  and  valid  contract,  and  such  as  to  entitle 
either  party  to  the  aid  of  the  courts  of  justice  of  the  United  States  to 
enforce  its  execution. 

The  intercourse  of  this  country  with  foreign  nations,  and  its  policy 
in  regard  to  them,  are  placed  by  the  Constitution  of  the  United  States 
in  the  hands  of  the  government,  and  its  decisions  upon  these  subjects 
are  obligatory  upon  every  citizen  of  the  Union.  He  is  bound  to  be  at 
war  with  the  nation  against  which  the  war-making  power  has  declared 
war,  and  equally  bound  to  commit  no  act  of  hostility  against  a  nation 
with  which  the  government  is  in  amity  and  friendship.  This  prin- 
ciple is  universally  acknowledged  by  the  laws  of  nations.  It  lies  at 
the  foundation  of  all  government,  as  there  could  be  no  social  order  or 
peaceful  relations  between  the  citizens  of  different  countries  without 
it.  It  is,  however,  more  emphatically  true  in  relation  to  the  citizens  of 
the  United  States.  For  as  the  sovereignty  resides  in  the  people,  every 
citizen  is  a  portion  of  it,  and  is  himself  personally  bound  by  the  laws 
which  the  representatives  of  the  .sovereignty  may  pass,  or  the  treaties 
into  which  they  may  enter,  within  the  scope  of  their  delegated  au- 
thority. And  when  that  authority  has  plighted  its  faith  to  another 
nation  that  there  shall  be  peace  and  friendship  between  the  citizens 
of  the  two  countries,  every  citizen  of  the  United  States  is  equally  and 
personally  pledged.  The  compact  is  made  by  the  department  of  the 
government  upon  which  he  himself  has  agreed  to  confer  the  power. 
It  is  his  own  personal  compact  as  a  portion  of  the  sovereignty  in  whose 
behalf  it  is  made.  And  he  can  do  no  act,  nor  enter  into  any  agree- 
ment to  promote  or  encourage  revolt  or  hostilities  against  the  terri- 
tories of  a  country  with  which  our  government  is  pledged  by  treaty 
to  be  at  peace,  without  a  breach  of  his  duty  as  a  citizen,  and  the  breach 
of  the  faith  pledged  to  the  foreign  nation.  And  if  he  does  so  he 
cannot  claim  the  aid  of  a  court  of  justice  to  enforce  it.  The  appel- 
lants say,  in  their  contract,  that  they  were  induced  to  advance  the  mon- 
ey by  the  desire  to  promote  the  cause  of  freedom.  But  our  own 
freedom  cannot  be  preserved  without  obedience  to  our  own  laws,  nor 

Scott  Int.Law 


Ch.  16)  ASSISTANCE   BY   NSUTRALS   TO   BELLIGERENTS  899 

social  order  preserved  if  the  judicial  branch  of  the  government  counte- 
nanced and'  sustained  contracts  made  in  violation  of  the  duties  which 
the  law  imposes,  or  in  contravention  of  the  known  and  established 
policy  of  the  political  department,  acting  within  the  limits  of  its  con- 
stitutional power. 

But  it  has  been  urged  in  the  argument  that  Texas  was  in  fact  inde- 
pendent, and  a  sovereign  state  at  the  time  of  this  agreement;  and 
that  the  citizen  of  a  neutral  nation  may  lawfully  lend  money  to  one 
that  is  engaged  in  war,  to  enable  it  to  carry  on  hostilities  against  its 
enemy. 

It  is  not  necessary,  in  the  case  before  us,  to  decide  how  far  the 
judicial  tribunals  of  the  United  States  would  enforce  a  contract  like 
this,  when  two  states,  acknowledged  to  be  independent,  were  at  war, 
and  this  country  neutral.  It  is  a  sufficient  answer  to  the  argument 
to  say  that  the  question  whether  Texas  had  or  had  not  at  that  time 
become  an  independent  state,  was  a  question  for  that  department  of 
our  government  exclusively  which  is  charged  with  our  foreign  rela- 
tions. And  until  the  period  when  that  department  recognized  it  as 
an  independent  state,  the  judicial  tribunals  of  the  country  were  bound 
to  consider  the  old  order  of  things  as  having  continued,  and  to  regard 
Texas  as  a  part  of  the  Mexican  territory.  And  if  we  undertook  to 
inquire  whether  she  had  not  in  fact  become  an  independent  sovereign 
state  before  she  was  recognized  as  such  by  the  treaty-making  power, 
we  should  take  upon  ourselves  the  exercise  of  political  authority,  for 
which  a  judicial  tribunal  is  wholly  unfit,  and  which  the  Constitution 
has  conferred  exclusively  upon  another  department. 

This  is  not  a  new  question.  It  came  before  the  court  in  the  case 
of  Rose  V.  Himely,  4  Cranch,  272,  2  L.  Ed.  608,  and  again  in  Gelston 
V.  Hoyt,  3  Wheat.  324,  4  L.  Ed.  381.  And  in  both  of  these  cases  the 
court  said,  that  it  belongs  exclusively  to  governments  to  recognize  new 
states  in  the  revolutions  which  may  occur  in  the  world ;  and  until  such 
recognition,  either  by  our  own  government  or  the  government  to  which 
the  new  state  belonged,  courts  of  justice  are  bound  to  consider  the 
ancient  state  of  things  as  remaining  unaltered. 

It  was  upon  this  ground  that  the  Court  of  Common  Pleas  in  Eng- 
land, in  the  case  of  De  Wutz  v.  Hendricks,  9  Moore's  C.  P.  Reports, 
586,  decided  that  it  was  contrary  to  the  law  of  nations  for  persons  re- 
siding in  England  to  enter  into  engagements  to  raise  money  by  way 
of  loan  for  the  purpose  of  supporting  subjects  of  a  foreign  state  in 
arms  against  a  government  in  friendship  with  England,  and  that  no 
right  of  action  attached  upon  any  such  contract.  And  this  decision 
is  quoted  with  approbation  by  Chancellor  Kent,  in  1  Kent's  Com. 
116. 

Nor  can  the  subsequent  acknowledgment  of  the  independence  of 
Texas,  and  her  admission  into  the  Union  as  a  sovereign  state,  affect 
the  question.    The  agreement  being  illegal  and  absolutely  void  at  the 


900  RIGHTS  AND   DUTIES   OP   NATIONS   IN  TIME   OF  WAR         (Part  3 

time  it  was  made,  it  can  derive  no  force  or  validity  from  events  which 
afterwards  happened. 

But  it  is  insisted,  on  the  part  of  the  appellants,  that  this  contract 
was  to  be  executed  in  Texas,  and  was  valid  by  the  laws  of  Texas,  and 
that  the  District  Court  for  that  state,  in  a  controversy  between  indi- 
viduals was  bound  to  administer  the  laws  of  the  state,  and  ought 
therefore  to  have  enforced  this  agreement. 

This  argument  is  founded  in  part  on  a  mistake  of  the  fact.  The 
contract  was  not  only  made  in  Cincinnati,  but  all  the  stipulations  on 
the  part  of  the  appellants  were  to  be  performed  there  and  not  in 
Texas.  And  the  advance  of  money  which  they  agreed  to  make  for 
military  purposes  was  in  fact  made  and  intended  to  be  made  in  Cin- 
cinnati, by  the  delivery  of  their  promissory  notes,  which  were  accepted 
by  the  appellee  as  payment  of  the  money.  This  appears  on  the  face 
of  the  contract.  And  it  is  this  advance  of  money  for  the  purposes 
mentioned  in  the  agreement,  in  contravention  of  the  neutral  obliga- 
tions and  policy  of  the  United  States,  that  avoids  the  contract.  The 
mere  agreement  to  accept  a  conveyance  of  land  lying  in  Texas,  for 
a  valuable  consideration  paid  by  them,  would  have  been  free  from 
objection. 

But  had  the  fact  been  otherwise,  certainly  no  law  of  Texas  then  or 
now  in  force  could  absolve  a  citizen  of  the  United  States,  while  he 
continued  such,  from  his  duty  to  this  government  nor  compel  a  court 
of  the  United  States  to  support  a  contract  no  matter  where  made  or 
where  to  be  executed,  if  that  contract  was  in  violation  of  their  laws, 
or  contravened  the  public  policy  of  the  government,  or  was  in  con- 
flict with  subsisting  treaties  with  a  foreign  nation. 

We  therefore  hold  this  contract  to  be  illegal  and  void,  and  affirm 
the  decree  of  the  District  Court. 

Mr.  Justice  Danii^l  and  Mr.  Justice  GriEr  dissented.^* 

14  In  1823,  during  the  course  of  the  Greek  "War  of  Independence,  George 
Canning,  then  British  Secretary  of  State  for  Foreign  Affairs,  submitted  the 
following  questions  to  the  law  officers  of  the  crown : 

"1.  Whether  subscriptions  for  the  use  of  one  of  two  belligerent  states  by 
individual  subjects  of  a  nation  professing  and  maintaining  a  strict  neutrality 
between  them  be  contrary  to  the  law  of  nations,  and  constitute  such  an  offence 
as  the  other  belligei'ent  would  have  a  right  to  consider  as  an  act  of  hostility 
on  the  part  of  the  neutral  government? 

"2.  If  such  individual  voluntai-j'  subscriptions  in  favour  of  one  belligerent 
would  give  such  just  cause  of  offence  to  the  other,  whether  loans  for  the  same 
purpose  would  give  the  like  cause  of  offence? 

"3.  And  if  not,  where  is  the  line  to  be  drawn  between  a  loan  at  an  easy  or 
mere  nominal  rate  of  interest,  or  a  loan  with  a  previous  understanding  that 
intei-est  would  never  be  exacted,  and  a  gratuitous  voluntary  subscription?" 

Under  date  of  June  17,  1823,  they  replied  as  follows: 

"In  obedience  to  your  commands  we  beg  leave  to  report  that  we  have  taken 
the  same  into  our  consideration,  and  we  are  of  opinion  that  subscriptions  of 
the  nature  above  alluded  to,  for  the  use  and  avowedly  for  the  support  of  one 
of  two  belligerent  states  against  the  other,  entered  into  liy  individual  subjects 
of  a  government  professing  and  maintaining  neutrality,  are  inconsistent  with 
that  neutrality  and  contrary  to  the  law  of  nations ;   but  we  conceive  that  the 


Ch.  16)  ASSISTANCE  BY  NEUTRALS   TO  BELLIGERENTS  901 

THE  ITATA. 

UNITED  STATES  v.  THE  ITATA. 

SAME  V.  TWO  THOUSAND  CASES  OF  RIFLES. 

(Circuit  Court  of  Appeals  of  the  United  States,  Ninth  Circuit,  1893. 

56  Fed.  505.) 

Appeal  from  the  District  Court  of  the  United  States  for  the  South- 
ern District  of  CaHfornia. 

In  Admiralty.  Libels  against  the  steamship  Itata  and  her  cargo 
for  alleged  violations  of  the  neutrality  laws.  The  court  below  dis- 
missed the  libels  (49  Fed.  646),  and  the  United  States  appeal.  Af- 
firmed. 

Hawley,  District  Judge.^®  These  cases  were  tried  together  upon 
the  evidence  introduced  in  the  district  court  in  the  case  of  U.  S.  v. 
Trumbull,  48  Fed.  99,  so  far  as  the  same  was  applicable,  and  upon 
certain  additional  depositions.  U.  S.  v.  The  Itata,  49  Fed.  647.  A 
consideration  of  one  case  disposes  of  both. 

On  the  8th  day  of  July,  1891,  the  United  States  attorney  for  the 
Southern  district  of  California  filed  a  libel  of  information  against  the 
steamship  Itata,  alleging,  in  substance:  (1)  That  on  the  8th  of  May, 
1891,  within  the  limits  of  the  United  States,  and  within  the  juris- 
diction of  the  court,  one  Pedro  Manzen  and  divers  other  persons 
"did  unlawfully  fit  out  and  arm  said  steamship  or  vessel  called  the 

other  belligerent  would  not  have  a  right  to  consider  such  subscriptions  as  con- 
stituting an  act  of  hostility  on  the  part  of  the  Government,  although  they 
might  afford  ,iust  ground  of  complaint  if  carried  to  any  considerable  extent. 

"With  respect  to  loans,  if  entered  into  merely  with  commercial  views,  we 
think,  according  to  the  opinions  of  writers  on  the  law  of  nations  and  the 
practice  which  has  prevailed,  they  would  not  bo  an  infringement  of  neutrality : 
but  if,  under  colour  of  a  loan,  a  gratuitous  contribution  was  afforded  without 
interest,  or  with  mere  nominal  interest,  we  think  such  a  transaction  would 
fall  within  the  opinion  given  in  answer  to  the  first  question." 

And  on  June  21,  1823,  the  law  officers  reaffirmed  their  opinion  that  "sub- 
scriptions in  favour  of  one  of  two  belligerent  states,  being  inconsistent  with 
the  neutrality  declared  by  the  government  of  the  country  and  with  the  law 
of  nations,  would  be  illegal,"  and  advised  the  government  that  prosecutions 
against  the  persons  concerned  in  subscriptions  would  be  unsuccessful. 

For  the  full  text  of  these  documents,  see  3  Phillimore's  Commentaries  upon 
International  Law  (3d  Ed.,  1S85),  Appendix  X,  928-930. 

It  is  one  thing  for  a  neutral  government  "to  make  or  promote  or  guarantee 
a  loan  of  money  to  either  belligerent,"  but  it  is  quite  another  thing  for  citizens 
or  subjects  of  a  neutral  state  to  do  so.  This  latter  case  appears  to  be  a  mat- 
ter of  business  with  which  the  belligerents  have  nothing  to  do.  It  is  for  the 
neutral  country  to  determine  by  municipal  law  whether  it  will  forbid  such 
transactions,  or  will  not  protect  its  citizens  or  subjects  who  have  engaged  in 
them. 

A  distinction  has  been  drawn  between  loans  to  recognized  and  unrecognized 
insurgents.  The  former  are  said  to  be  legal,  the  latter  illegal,  under  interna- 
tional law. 

For  a  careful  and  discriminating  analysis  of  this  subject,  see  Pitt  Cobbett's 
Cases  and  Opinions  on  Tnternatinnal  Law  (3d  Ed.,  1913),  part  II,  365-368. 

IB  Parts  of  the  opinions  are  omitted. 


902  RIGHTS  AND   DUTIES   OF  NATIONS   IN  TIME   OP   WAR         (Part  3 

Itata,  with  intent  that  such  steamship  or  vessel  should  be  employed  in 
the  service  of  certain  foreign  people,  viz.  certain  inhabitants  and 
citizens  of  the  republic  of  Chile,  then  organized  and  banded  togeth- 
er in  large  numbers  and  in  great  force,  and  engaged  in  open,  armed 
hostilities  and  attempted  revolution  against  the  republic  of  Chile,  and 
the  lawful  government  thereof,  said  insurgents  being  known  as  the 
'Congressional  Party,'  to  cruise  and  commit  hostilities  against  the 
citizens  and  property  of  a  foreign  state,  viz.  the  republic  of  Chile, 
with  which  republic  the  United  States  were  then  and  now  are  at 
peace";  (2)  that  on  the  8th  of  May,  1891,  within  the  limits  of  the 
United  States,  and  within  about  two  miles  from  the  island  of  San 
Clemente,  said  persons  "were  unlawfully  concerned  in  the  furnishing 
and  fitting  out"  of  said  steamship  with  the  intent  alleged  in  the  first 
'  count;  (3)  that  on  the  6th  day  of  May,  1891,  within  the  limits  of  the 
United  States,  at  the  port  of  San  Diego,  in  the  state  of  Cahfornia,  said 
persons  "were  unlawfully  concerned  in  the  fitting  out  and  furnishing 
of"  said  steamship  with  the  same  intent.  All  of  which  acts  are  al- 
leged to  be  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  that  by  force  of  the  statute  the  said  steamship  Itata,  her 
tackle,  apparel,  and  furniture,  "became  and  are  forfeited  to  the  uses 
in  said  statute  prescribed."  In  due  time  the  Gobierno  Provisorio  de 
la  Republica  de  Chile,  as  claimant  of  said  steamship,  filed  an  answer, 
specifically  denying  that  the  Itata  was  fitted  out  or  armed,  or  furnished 
or  fitted  out,  in  any  way  as  alleged  in  the  libel  or  for  any  purpose. 
It  admits  that  at  the  date  alleged  the  said  vessel  was  in  the  service 
of  the  Gobierno  Provisorio  de  la  Republica  de  Chile,  or  the  provi- 
sional government  of  the  republic  of  Chile,  in  said  libel  described  as 
the  "Congressional  Party,"  and  it  avers  that  said  government  was  and 
is  the  lawful  government  of  said  republic  of  Chile.  It  admits  that 
said  government  was  carrying  on  war,  but  it  denies  that  said  war  was 
against  the  governmient  or  people  of  the  republic  of  Chile.  And  it 
denies  that  the  action  of  the  said  government,  or  said  Pedro  Manzen, 
or  any  person  connected  with  said  steamship,  was  or  is  against  the' 
form  of  the  statute  of  the  United  States,  or  that  by  reason  of  any 
act  of  this  respondent,  or  of  said  Manzen,  or  of  any  person  con- 
nected with  said  steamship  the  same  was  or  is  forfeited.  The  statute 
in  question  reads  as  follows: 

"Sec.  5283.  Every  person  who,  within  the  limits  of  the  United 
States,  fits  out  and  arms,  or  attempts  to  fit  out  and -arm,  or  procures 
to  be  fitted  out  and  armed,  or  knowingly  is  concerned  in  the  furnish- 
ing, fitting  out,  or  arming  of  any  vessel,  with  intent  that  such  vessel 
shall  be  employed  in  the  service  of  any  foreign  prince  or  state,  or  of 
any  colony,  district  or  people,  to  cruise  or  commit  hostilities  against 
the  subjects,  citizens,  or  property  of  any  foreign  prince  or  state,  or  of 
any  colony,  district,  or  people  with  whom  the  United  States  are  at 
peace,  or  who  issues  or  delivers  a  commission  within  the  territory  or 


Ch.  16)  ASSISTANCE   BY  NEUTRALS   TO   BELLIGERENTS  903 

jurisdiction  of  the  United  States  for  any  vessel  to  the  intent  that  she 
may  be  so  employed,  shall  be  deemed  guilty  of  a  high  misdemeanor, 
and  shall  be  fined  not  more  than  ten  thousand  dollars  and  imprisoned 
not  more  than  three  years.  And  every  such  vessel,  her  tackle,  ap- 
parel, and  furniture,  together  with  all  materials,  arms,  ammunition, 
and  stores,  which  may  have  been  procured  for  the  building  and  equip- 
ment thereof,  shall  be  forfeited — one-half  to  the  use  of  the  informer, 
and  the  other  half  to  the  use  of  the  United  States." 
The  facts  found  by  the  District  Court  are  as  follows : 
"In  January  of  1891  the  steamship  Itata  was  an  ordinary  merchant 
vessel.  Early  in  that  month  she  was  captured  in  the  harbor  of  Val- 
paraiso, Chile,  by  the  people  then  known  as  the  'Congressional  Party,' 
and  who  were  then  engaged  in  an  efifort  to  overthrow  the  then  es- 
tablished and  recognized  government  of  Chile,  of  which  Balmaceda 
was  the  head.  The  Itata  was  by  the  Congressional  Party  put  in  com- 
mand of  one  of  its  officers,  and  was  used  in  their  undertaking  as  a 
transport  to  convey  troops,  provisions,  and  munitions  of  war,  and 
also  as  a  hospital  ship,  and  one  in  which  to  confine  prisoners.  Four 
small  cannon  were  also  put  upon  her  decks,  and  she  carried  a  jack 
and  pennant.  Some  time  prior  to  the  following  April,  one  Trum- 
bull came  to  the  United  States  as  an  agent  of  the  Congressional  party, 
and  about  the  month  of  April  went  to  the  city  of  New  York,  and  there 
bought  from  one  of  the  large  mercantile  firms  of  that  city  dealing  in 
such  matters  5,000  rifles  and  2,000,000  cartridges  therefor,  with  the 
intention  and  for  the  purpose  of  sending  them  to  the  Congressional 
party  in  Chile  for  use  in  their  effort  to  overthrow  the  Balmacedan  gov- 
ernment. The  sale  and  purchase  of  the  arms  and  ammunition  were 
made  in  the  usual  course  of  trade.  Trumbull  caused  them  to  be 
shipped  by  rail  to  San  Francisco,  and  engaged  one  Burt  to  accom- 
pany them,  which  he  did.  Arrangements  had  been  made  by  Trum- 
bull with  his  principals  in  Chile  by  which  they  were  to  send  a  ves- 
sel to  the  United  States  to  get  the  arms  and  ammunition,  and  con- 
vey them  to  Chile  for  the  use  of  the  Congressional  party  there.  The 
Itata  was  dispatched  by  that  party  for  that  purpose,  and  was  ac- 
companied as  far  as  Cape  San  Luqas  by  the  Esmeralda  a  warship  then 
in  the  service  of  the  Congressional  party.  Before  leaving  Chile,  the 
Itata  discharged  the  four  small  cannon,  with  the  ammunition  therefor, 
that  she  had  theretofore  carried,  but  she  retained  one  small  brass 
gun,  which  she  had  always  carried  and  used  as  a  signal  gun,  and 
also  eight  or  ten  old  muskets,  and  one  small  iron  cannon,  for  which 
there  was  no  ammunition.  At  one  of  the  Chilean  ports  the  Itata  took 
on  board  some  soldiers,  with  their  arms,  not  exceeding  12  in  number ; 
but  they  were  taken,  not  to  be  used  as  soldiers,  but  for  passing  coal, 
and  as  stokers.  At  San  Lucas  the  captain  of  the  Esmeralda  took  com- 
mand of  the  Itata,  and  the  captain  of  the  latter  was  left  there  in  com- 
mand of  the  Esmeralda.     The  Itata  then  proceeded  to  San  Diego, 


904  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   WAR         (Part  3 

really  in  command  of  the  Esmeralda's  captain,  but  ostensibly  in  com- 
mand of  another,  who  represented  to  the  customs  officers  at  the  port 
that  she  was  an  ordinary  merchantman,  and  was  bound  to  some  port 
on  the  northern  coast. 

"Before  coming  into  the  port  of  San  Diego,  or  into  the  waters  of 
the  United  States,  the  Itata  hauled  down  her  jack  and  pennant;  the 
brass  and  iron  cannon  were  removed  from  her  deck,  and  stowed  in 
her  hold,  as  were  also  the  arms  of  the  soldiers  she  carried ;  and  their 
uniforms,  as  well  as  those  of  the  officers,  were  removed,  and  all 
appeared  in  civilian's  dress.  At  that  port  she  laid  in  stores  of  coal 
and.  provisions,  all  of  which  were  bought  in  the  open  market,  and 
some  of  which  were  marked  'Esmeralda.'  Meanwhile  Trumbull  had 
chartered  a  schooner,  called  the  Robert  and  Minnie,  in  San  Francisco, 
to  take  the  arms  and  ammunition  from  there  to  a  point  in  this  judicial 
district,  then  expected  to  be  near  the  island  of  Catalina,  where  she 
could  meet  the  Itata,  and  deliver  them  on  board  of  her,  to  be  conveyed 
to  Chile  for  the  purposes  already  stated.  The  schooner  Robert  and 
Minnie  accordingly  took  on  board  the  arms  and  ammunition  at  the 
port  of  San  Francisco,  and,  in  charge  of  Burt,  proceeded  to  the 
neighborhood  of  Catalina  island,  where  she  expected  to  meet  the 
Itata.  In  the  meantime  the  suspicion  of  some  of  the  officers  of  the 
United  States  that  the  neutrality  laws  were  being  violated  was 
aroused,  and  the  marshal  of  this  district  was  directed  by  the  attorney 
general  to  detain  the  Itata  if  such  was  found  to  be  the  case ;  and,  act- 
ing upon  those  and  certain  instructions  from  the  district  attorney  of 
this  judicial  district,  he  went  on  board  the  ship  at  San  Diego,  and 
put  a  keeper  in  charge  of  her,  and  then  went  in  search  of  the  Robert 
and  Minnie,  which  he  did  not  find  in  the  waters  of  the  United  States. 
Communication  was,  however,  had  between  the  Itata  and  the  schooner, 
and  a  point  near  San  Clemente  island  was  fixed  upon  as  the  place  of 
meeting  for  the  purpose  of  transferring  the  arms  and  ammunition  from 
the  schooner  to  the  ship.  Accordingly,  the  Itata,  on  the  6th  of  May, 
1891,  without  obtaining  clearance  papers,  and  against  the  protest  of  the 
person  left  on  board,  and  in  charge  of  her  by  the  marshal,  weighed 
anchor,  and  steamed  out  of  the  harbor  of  San  Diego,  with  him  on 
board,  to  meet  the  Robert  and  Minnie,  and  receive  the  arms  and  am- 
munition. The  marshal's  keeper  was,  however,  put  ashore  at  Point 
Ballast,  before  leaving  the  harbor.  While  steaming  out  of  it,  one  or 
both  of  the  Itata's  cannon  were  brought  on  deck,  and  some  of  the 
soldiers  on  board  of  her  appeared  in  uniform.  On  the  9th  of  May 
the  Itata  and  Robert  and  Minnie  came  together  about  a  mile  and  a 
half  southerly  of  San  Clemente  island,  in  this  judicial  district,  and 
there  the  arms  and  ammunition  in  question  were  taken  from  the 
schooner  and  put  on  board  the  ship  in  original  packages,  and  the 
latter  at  once  left  with  them  for  Chile. 

"On  September  4,  1891,  the  Congressional  party  was  recognized  by 


Ch.  16)  ASSISTANCE   BY   NEUTRALS   TO   BELLIGERENTS  905 

the  government  of  the  United  States  as  the  established  and  only  govern- 
ment of  Chile.  Prior  to  that  time  there  had  been  no  recognition  of 
that  party  by  this  government,  other  than  that  on  March  4th  the  sec- 
retary of  the  navy  cabled  Admiral  McCann  'to  proceed  to  Valparaiso, 
and  observe  strict  neutrality,  and  take  no  part  in  troubles  between 
parties,  further  than  to  protect  American  interests.'  On  March  26th 
the  Secretary  of  the  Navy  cabled  Admiral  Brown,  who  had  super- 
seded Admiral  McCann,  *to  abstain  from  proceedings  in  nature  of  as- 
sistance to  either — that  is,  the  Balmaceda  or  Congressional  party; 
that  the  ships  of  the  latter  were  not  to  be  treated  as  piratical  so  long 
as  they  waged  war  only  against  the  Balmaceda  government.'  On  April 
25th,  Secretary  of  State  Blaine  cabled  the  American  minister:  'You 
can  act  as  mediator  with  Brazilian  minister  and  French  charge  d'af- 
faires.' On  May  5th,  Minister  Egan  cabled  this  government:  'Gov- 
ernment of  Chile  and  revolutionists  have  accepted  mediation  of  the 
United  States,  Brazil,  and  France  most  cordially ;  those  of  England 
and  Germany  declined.'  On  May  7th,  Acting  Secretary  of  State 
Wharton  acknowledged  the  dispatch  of  Minister  Egan,  and  'expressed 
hope  that,  through  combined  efforts  of  governments  in  question, 
the  strife  which  has  been  going  on  in  Chile  may  be  speedily  and  hap- 
pily terminated.'  On  May  14th,  Acting  Secretary  of  State  Wharton 
cabled  Minister  Egan  that  'French  minister  reports  threats  to  shoot 
the  insurgent  envoys  by  Balmaceda,'  and  directed  that  they  should 
have  ordinary  treatment  under  flag  of  truce." 

The  contention  of  appellee  is  (1)  that  the  Itata  was  not  fitted  out 
and  armed,  or  furnished  and  fitted  out,  to  cruise  or  commit  hostilities, 
but,  on  the  contrary,  she  was  a  merchant  vessel,  engaged  at  the  times 
referred  to  in  the  libel  in  the  exercise  of  a  lawful  pursuit ;  (2)  that 
if  the  Itata  was  fitted  out  and  armed,  or  furnished  and  fitted  out,  such 
acts  were  not  done  with  intent  that  she  should  be  "employed  in  the 
service  of  any  foreign  prince  or  state,  or  of  any  colony,  district,  or 
people,  to  commit  hostilities" ;  (3)  that  the  case  made  by  the  evi- 
dence is  not  within  the  statute;  (4)  that  the  subsequent  recognition 
by  the  United  States  of  the  provisional  government  as  the  lawful 
government  of  Chile  was,  in  legal  effect,  a  recognition  of  all  its  prior 
governmental  acts  as  the  acts  of  a  sovereign  government. 

It  was  conceded  in  the  oral  argument  by  the  special  counsel  for  the 
appellants,  and  we  do  not  understand  the  Attorney  General,  in  his 
brief,  to  deny  it,  that  Trumbull,  acting  as  an  agent  for  the  Congres- 
sional party  in  Chile,  had  the  lawful  right  to  purchase  the  arms  and 
ammunition  in  the  United  States ;  that  this  was  purely  a  commer- 
cial transaction  recognized  by  law.  But  it  is  claimed  that,  notwith- 
standing the  fact  that  the  purchase  of  the  arms  and  ammunition  was 
legal,  yet  the  shipment  of  them  for  the  purpose  of  being  conveyed  to 
Chile,  there  to  be  surrendered  to  the  Congressional  party  for  the  pur- 
pose of  being  used  by  that  party  in  a  war  against  the  Balmaceda  gov- 


906  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   WAR         (Part  3 

ernment  of  Chile,  which  at  that  time  was  recognized  by  the  United 
States  as  the  lawful  government  of  Chile,  was  an  unlawful  act,  which 
justified  the  libel,  and  warranted  a  decree  of  court  for  the  forfeiture 
of  the  vessel.  If  this  contention  is  correct,  it  settles  the  controversy, 
for  there  can  be  no  doubt  but  what  the  intent  and  purpose  of  the 
Itata,  and  of  the  persons  having  her  in  charge,  was  to  convey  the 
arms  and  ammunition  out  of  the  United  States  and  to  Chile,  there 
to  be  delivered  to  the  Congressional  party  for  the  purpose  above 
stated. 

If  the  Congressional  party,  as  insurgents,  are  to  be  treated  as  bel- 
ligerents, they  not  only  had  the  right  to  buy  the  arms  and  ammunition 
in  the  United  States,  but  they  also  had  the  right  to  ship  them  at  their 
risk,  subject  only  to  the  penalties  of  confiscation  which  the  laws  of 
war  authorize.  Commercial  dealings  or  transactions  are  not  pro- 
scribed by  the  laws  of  nations  as  violations  of  neutral  territory  simply 
because  they  are  contraband  of  war.  "It  was  contended  on  the  part  of 
the  French  nation,  in  1796,  that  neutral  governments  were  bound  to 
restrain  their  subjects  from  selling  or  exporting  articles  contraband  of 
war  to  the  belligerent  powers.  But  it  was  successfully  shown  on  the 
part  of  the  United  States  that  neutrals  may  lawfully  sell,  at  home, 
to  a  belligerent  purchaser,  or  carry  themselves  to  the  belligerent  pow- 
ers, contraband  articles,  subject  to  the  right  of  seizure  in  transitu. 
This  right  has  since  been  explicitly  declared  by  the  judicial  authorities 
of  this  country."  1  Kent,  Comm.  142;  The  Santissima  Trinidad,  7 
Wheat.  283,  5  L.  Ed.  454;  The  Bermuda,  3  Wall.  514,  18  L.  Ed.  200; 
Richardson  v.  Insurance  Co.,  6  Mass.  113,  4  Am.  Dec.  92.     *     *     * 

In  1871,  Attorney  General  Ackerman,  in  a  letter  to  the  Secretary 
of  State,^^  replying  to  a  communication  which  had  been  received  from 
the  Spanish  minister  in  relation  to  the  expedition  of  the  Hornet  to 
the  coast  of  Cuba,  said:  "Assuming  the  credibility  of  the  sworn  state- 
ments which  he  has  transmitted,  I  do  not  think  that  they  prove  against 
the  Hornet  any  violation  of  the  neutrality  laws  of  the  United  States. 
They  show  that  the  Hornet  conveyed  from  Aspinwall  to  the  coast  of 
Cuba  men,  arms,  and  munitions  of  war,  destined  to  aid  the  Cuban  in- 
surgents. This  proof,  by  itself,  does  not  bring  the  vessel  within  the 
third  section  of  the  neutrality  act  of  April  20,  1818."  3  Stat.  448. 
See,  also,  letter  of  Mr.  Pickering,  Secretary  of  State,  to  the  minister 
of  France,  1  Amer.  St.  Papers,  649 ;  Letter  of  Attorney  General  Rush 
to  the  President  in  1816,  1  Op.  Atty.  Gen.  190;  letter  of  Attorney 
General  Speed  to  the  Secretary  of  State  in  1865,  11  Op.  Atty.  Gen. 
408;   3  Whart.  Int.  Law  Dig.  §  391,  p.  515. 

But  the  argument  of  the  Attorney  General  in  support  of  his  conten- 
tion is  to  the  effect  that,  the  United  States  not  having  done  any  act 
tending  to  accredit  the  rebellion  in  Chile,  the  Congressional  party  had 

i«  13  Op.  Atty.  Gen.  541. 


Ch.  10)  ASSISTANCE   BY  NEUTRALS   TO   BELLIGERENTS  907 

no  belligerent  rights;  that  all  warlike  acts  conducted  by  them  "upon 
the  ocean  bore  the  legal  character  of  piracy,  and  upon  land  that  of 
robbery";  that  it  was  not  the  duty  of  the  United  States,  under  the 
rules  of  international  law,  to  accord  to  them  the  same  privileges  as 
to  the  recognized  government  of  Chile;  and  that  there  could  not  be 
any  legitimate  trade  or  commerce  with  such  people  until-  the  govern- 
ment of  the  United  States  had  recognized  the  insurgents  as  belliger- 
ents. The  law  is  well  settled  that  it  is  the  duty  of  the  courts  to  regard 
the  status  of  the  Congressional  party  in  the  same  light  as  they  were 
regarded  by  the  executive  department  of  the  United  States  at  the 
time  the  alleged  offenses  were  committed.  Gelston  v.  Hoyt,  3  Wheat. 
246,  4  L.  Ed.  381 ;  U.  S.  v.  Palmer,  3  Wheat.  610,  4  L.  Ed.  471 ; 
Kennett  v.  Chambers,  14  How.  51,  14  L.  Ed.  316;  The  Ambrose 
Light  (D.  C.)  25  Fed.  409.  It  being  admitted  that  the  government  of 
the  United  States,  at  the  time  of  the  commission  of  the  alleged  unlaw- 
ful acts,  had  not  recognized  the  congressional  party  as  being  entitled 
to  any  belligerent  rights,  it  would  seem  to  follow  that  it  was  within 
the  power  of  the  government,  at  its  option,  to  treat  the  party  as  pirates 
if  the  facts  warranted  it,  and  justice  and  policy  so  required.  3  Whart. 
Int.  Law  Dig.  §  381,  p.  466. 

This  view  of  the  case  presents  the  question  whether  section  5283  of 
the  Revised  Statutes  has  any  application  to  persons  or  vessels  whom 
it  is  optional  with  the  United  States  to  treat  as  pirates.  If  the  stat- 
ute was  only  intended  to  apply  to  cases  of  neutrality  between  two 
recognized  belligerent  countries,  it  would  not,  under  the  theory  ad- 
vanced by  appellant's  counsel,  have  any  application  to  this  case,  be- 
cause, as  they  contend,  there  is  "no  question  of  neutrality,  as  that 
term  is  known  in  international  law,  which  only  exists  between  the 
belligerents, — a  status  composed  of  a  rightful  belligerent  power  or 
a  de  facto  belligerent  force,  made  so  by  recognition."  We  do  not 
deem  it  necessary  to  decide  the  question  as  to  the  meaning  of  the 
statute  in  relation  to  this  particular  subject,  but  we  do  consider  it 
proper  that  a  reference  should  be  made  to  the  authorities  in  relation 
to  this  matter,  as  shedding  some  light,  and  making  clearer  the  prin- 
ciples that  will  be  discussed  in  relation  to  other  questions  upon  which 
our  decision  will  be  based. 

In  the  oral  argument  of  counsel  there  was  an  extended  discussion 
as  to  the  proper  meaning  of  the  word  "people"  as  used  in  the  statute. 
This  word  is  a  comprehensive  one,  and  is,  of  course,  subject  to  many 
different  meanings,  depending  always  upon  the  connection  in  which 
it  is  used,  and  the  subject-matter  to  which  it  relates.     *     *     ♦ 

The  causes  which  led  up  to  the  passage  of  the  act  "for  the  punish- 
ment of  certain  crimes  against  the  United  States"  (1  Stat.  381),  gen- 
erally called  the  "Neutrality  Act,"  are  set  forth  at  great  length  in 
note  215  to  section  439,  Wheat.  Int.  Law.  The  third  section,  as 
originally  enacted  June  5,  1794,  had  the  words:     "With  intent  that 


908  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OP   WAR         (Part  3 

such  ship  or  vessel  shall  be  enployed  in  the  service  of  any  foreign 
prince  or  state,  to  cruise  or  commit  hostilities  upon  the  subjects,  citi- 
zens, or  property  of  another  foreign  prince  or  state  with  whom  the 
United  States  are  at  peace."  In  1818,  from  a  suggestion  of  the 
Spanish  minister  that  the  South  American  provinces  in  revolt,  and 
not  recognized  as  .independent,  might  not  be  included  in  the  word 
"state,"  the  words  "colony,  district,  or  people"  were  added.  The 
discussions  which  were  had  were  in  reference  to  the  better  preserva- 
tion of  neutrality,  and  in  furtherance  of  the  obligation  of  the  United 
States  as  a  neutral  power. 

In  Gelston  v.  Hoyt,  3  Wheat.  323,  4  L.  Ed.  381,  the  court  discussed 
the  meaning  of  the  third  section  of  the  statute  as  originally  enacted. 
"The  evidence  offered  and  rejected  was  to  prove  that  the  ship  was 
attempted  to  be  fitted  out  and  armed,  and  was  fitted  out  and  armed, 
with  intent  that  she  should  be  employed  in  the  service  of  that  part  of 
the  island  of  St.  Domingo  which  was  then  under  the  government  of 
Petion,  to  cruise  and  commit  hostilities  upon  subjects,  citizens,  and 
property  of  that  part  of  the  island  of  St.  Domingo  which  was  then 
under  the  government  of  Christophe,"  and  the  court  held  that  no 
forfeiture  could  be  incurred  unless  Petion  and  Christophe  "were  for- 
eign princes,  within  the  purview  of  the  statute,"  and  sustained  the 
action  of  the  court  below  in  rejecting  the  evidence  offered,  upon  the 
ground  that  "neither  the  government  of  Petion  nor  Christophe  have 
ever  been  recognized  as  a  foreign  state  by  the  government  of  the 
United  States  or  of  France." 

In  U.  S.  V.  Quincy,  6  Pet.  467,  8  L.  Ed.  458,  the  court,  in  construing 
the  provisions  of  the  third  section,  as  amended  April  20,  1818  (sec- 
tion 5283,  Rev.  St.  U.  S.),  said:  "The  word  'people,'  as  here  used,  is 
merely  descriptive  of  the  power  in  whose  service  the  vessel  was  in- 
tended to  be  employed;  and  it  is  one  of  the  denominations  applied  by 
the  act  of  Congress  to  a  foreign  power." 

In  The  Carondelet  (D.  C.)  37  Fed.  800,  Brown,  J.,  said :  "Section 
5283  is  designed  in  general  to  secure  our  neutrality  between  foreign 
belligerent  powers.  But  there  can  be  no  obligation  of  neutrality  ex- 
cept towards  some  recognized  state  or  power,  de  jure  or  de  facto. 
Neutrality  presupposes  at  least  two  belligerents ;  and,  as  respects  am 
recognition  of  belligerency;  i.  e.,  of  belHgerent  rights,  the  judiciary 
must  follow  the  executive.  To  fall  within  the  statute  the  vessel  must 
be  intended  to  be  employed  in  the  service  of  one  foreign  prince,  state, 
colony,  district,  or  people,  to  cruise  or  commit  hostilities  against  the 
subjects,  citizens  or  property  of  another  with  which  the  United  States 
are  at  peace.  The  United  States  can  hardly  be  said  to  be  at  peace,  in 
the  sense  of  the  statute,  with  a  faction  which  they  are  unwilling  to 
recognize  as  a  government;  nor  could  the  cruising  or  committing  of 
hostilities  against  such  a  mere  faction  well  be  said  to  be  committing 
hostilities  against  the  subjects,  citizens,  or  property  of  a  district  or 


Ch.  16)  ASSISTANCE   BY  NEUTRALS  TO  BELLIGERENTS  909 

people,  within  the  meaning  of  the  statute.  So,  on  the  other  hand,  a 
vessel,  in  entering  the  service  of  the  opposite  faction  of  Hippolyte, 
could  hardly  be  said  to  enter  the  service  of  a  foreign  prince  or  state, 
or  of  a  colony,  district,  or  people,  unless  our  government  had  recog- 
nized Hippolyte's  faction  as  at  least  constituting  a  belligerent,  which 
it  does  not  appear  to  have  done." 

Opposed  to  these  authorities  is  the  letter  of  Attorney  General  Hoar 
to  the  Secretary  of  State,  December  16,  1869,  wherein  he  said:  .  "Un- 
doubtedly the  ordinary  application  of  the  statute  is  to  cases  where 
the  United  States  intends  to  maintain  its  neutrality  in  wars  between 
two  other  nations,  or  where  both  parties  to  a  contest  have  been  recog- 
nized as  belligerents ;  that  is,  as  havini^  a  sufficiently  organized  political 
existence  to  enable  them  to  carry  on  war.  But  the  statute  is  not  con- 
fined in  its  terms,  nor,  it  seems  to  me,  in  its  scope  and  proper  effect, 
to  such  cases.  Under  it,  any  persons  who  are  insurgents,  or  engaged 
in  what  would  be  regarded  under  our  law  as  levying  war  against  the 
sovereign  power  of  the  nation,  though  few  in  number,  and  occupying 
however  small  a  territory,  might  procure  the  fitting  out  and  arming 
of  vessels  with  intent  to  cruise  or  commit  hostilities  against  a  nation 
with  which  we  were  at  peace,  and  with  intent  that  they  should  be 
employed  in  the  service  of  a  colony,  district,  or  people  not  waging  a 
recognized  war."     13  Op.  Atty.  Gen.  179. 

In  The  Salvador,  L.  R.  3  P.  C.  218,  cited  by  appellants,  the  language 
of  the  Foreign  Enlistment  Act  (59  Ge6.  Ill,  c.  69,  §  7),  referred  to 
in  the  opinion,  is  much  broader  in  its  terms  than  is  the  language  of 
section  3  of  the  Neutrality  Act  of  the  United  States.  That  act  reads : 
"In  the  service  of  any  foreign  prince,  state,  or  potentate,  or  of  any 
foreign  colony,  province,  or  part  of  any  province  or  people,  or  of  any 
person  or  persons  exercising  or  assuming  to  exercise  any  powers  of 
government  in  or  over  any  foreign  state,  colony,  province,  or  part  of 
any  province  or  people."  It  was  held  that  the  case  of  The  Salvador 
came  within  the  alternative  of  section  7,  "because  their  lordships  found 
these  propositions  established  beyond  all  doubt.  There  was  an  in- 
surrection in  the  island  of  Cuba.  There  were  insurgents  who  had 
formed  themselves  into  a  body  of  people,  acting  together,  undertaking 
and  conducting  hostilities.  These  insurgents,  beyond  all  doubt,  formed 
part  of  the  province  or  people  of  Cuba,  and  beyond  all  doubt  the  ship 
in  question  was  to  be  employed,  and  was  employed,  in  connection 
with  and  in  the  service  of  this  body  of  insurgents." 

With  this  review  of  the  authorities  we  proceed  to  a  consideration 
of  what  we  deem  to  be  the  controlling  question  in  this  case,  viz. :  Is 
the  evidence  sufficient  to  sustain  the  libel  ?  *  *  *  All  the  facts, 
which  are  clearly  and  fully  presented  in  the  findings  of  the  District 
Court,  show  that  the  arms  and  ammunition  were  put  on  board  the 
Itata  with  the  intent,  object,  and  purpose  to  have  them  transported  to 
Chile  for  the  use  of  the  Congressional  party,  and  not  with  any  in- 


910  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

tent  that  the  Itata  as  a  war  vessel  should  in  any  manner  be  employed 
to  cruise  or  commit  hostilities  against  the  government  of  Chile,  with 
whom  the  United  States  were  then  at  peace.     *     *     * 

Having  reached  the  conclusion  that  the  evidence  in  this  case  is  not 
sufficient  to  justify  a  decree  of  forfeiture  against  the  Itata,  it  is 
unnecessary  to  discuss  the  effect  of  the  subsequent  recognition  by  the 
United  States  of  the  provisional  government  as  the  lawful  government 
of  Chile,  and  upon  that  question  we  express  no  opinion. 

The  judgment  of  the  District  Court,  in  both  cases,  is  affirmed. 

Hanford,  District  Judge  (concurring).  *  *  *  While  the  case 
IS  founded  upon  a  municipal  law,  it  requires  consideration  of  inter- 
national relations  and  comity.  The  purpose  of  the  statute  is  to  main- 
tain peace  between  other  countries  and  ours  on  terms  of  fairness  and 
justice  by  prohibiting  the  preparation  within  this  country  of  hostile 
expeditions  against  other  nations.  Section  5283,  Rev.  St.,  does  not 
make  the  fitting  out  and  arming  of  a  vessel  at  a  port  of  the  United 
States  unlawful  unless  it  be  coupled  with  specified  intents  or  pur- 
poses, one  of  which  is  that  the  vessel,  after  being  so  fitted  out  and 
armed,  "shall  be  employed  *  *  *  ^^  cruise  or  commit  hostilities 
against  the  subjects,  citizens,  or  property  of"  a  foreign  prince,  state, 
colony,  district,  or  people.  The  libel  of  information  in  this  case 
charges  that  certain  persons  did  unlawfully  fit  out  and  arm  the  Itata 
with  intent  that  she  should  be  employed  to  cruise  and  commit  hostili- 
ties against  the  republic  of  Chile.  On  this  point  there  is  an  issue,  and 
a  finding  of  the  truth  of  the  charge  is  indispensable  to  a  sufficient 
basis  for  a  lawful  decree  in  favor  of  the  United  States.  It  is  a  strange 
anomaly  of  the  case  that  this  issue  is  made  by  the  republic  of  Chile. 
The  acts  whereby  the  vessel  has  bfecome  forfeited,  as  the  libel  of 
information  alleges,  if  criminal  at  all,  are  so  because  designed  to  do 
harm  to  the  government  of  Chile ;  and  in  the  very  suit  in  which  it  is 
sought  to  have  the  forfeiture  adjudged  for  said  cause  that  govern- 
ment has  intervened,  claiming  a  right  of  property  in  the  vessel,  and 
by  its  answer  has  assumed  responsibility  for  the  acts  alleged  to  be 
criminal,  and  avows  that  all  the  persons  who  participated  in  said  acts, 
instead  of  being  enemies,  are  and  were  its  faithful  defenders.  The 
bond  given  for  the  release  of  the  vessel  which  is  now  held  in  place 
of  the  vessel  was  given  in  its  behalf,  so  that  the  penalty  in  case  of  a 
decree  in  favor  of  the  United  States  must  fall  upon  an  independent 
nation,  and  that  nation  the  one  for  the  sake  of  whose  friendship  our 
government  has  taken  the  pains  to  arrest  the  Itata  and  now  prosecute 
this  case. 

It  is  said  that  the  case  should  be  determined  according  to  the 
facts  existing  at  the  time  of  the  occurrences,  and  that,  if  the  Itata  was 
then  in  the  hands  of  insurgents,  whose  purpose  was  to  employ  her 
as  a  transport  in  making  war  upon  the  established  government  of 
Chile,  acts  of  the  insurgent   forces  in  violation  of  a  statute  of  the 


Ch.  16)  ASSISTANCE  BY  NEUTRALS  TO   BELLIGERENTS  911 

United  States  do  not  become  purged  of  criminality  by  the  subsequent 
success  of  the  insurrectionary  enterprise.  It  is  unnecessary  to  admit 
or  controvert  the  soundness  of  this  proposition,  because  it  does  not  fit 
the  facts  of  the  case.  It  is  not  appHcable,  for  the  reason  that  the 
Congressional  party,  instead  of  being  an  organization  of  rebels  against 
the  government  of  Chile,  was  in  fact  composed  of  and  controlled  by 
the  legislative  branch  of  the  national  government,  and  was  supported 
by  a  considerable  part  of  its  military  and  naval  forces.  The  object  of 
the  Congressional  party  was  not  revolution,  but  the  preservation  of  the 
government  by  deposing  President  Balmaceda  for  maladministration 
of  his  office.  Balmaceda  was  not  the  government.  He  was  merely  the 
highest  officer  and  head  of  the  government.  The  struggle,  therefore, 
was  not  between  the  government  and  a  faction,  but  between  the  dif- 
ferent departments  of  the  government.  While  it  continued  the  con- 
dition of  affairs  in  Chile  was  similar  to  what  might  have  been  brought 
about  in  the  United  States  if  a  sufficient  number  of  senators  had 
voted  for  the  impeachment  of  President  Andrew  Johnson,  and  the 
vote  had  been  followed  by  an  attempt  on  his  part  to  forcibly  resist  re- 
moval from  office.  The  right  to  determine  finally  every  question  in- 
volved in  that  struggle  belonged  to  the  people  of  Chile,  and  their  de- 
cision must  be  accepted  everywhere  as  conclusive.  It  is  now  an  his- 
torical fact  that  the  Congressional  party,  in  whose  service  the  Itata 
was  employed,  represented  the  will  and  sovereignty  of  the  Chilean 
people.  This  court  is  bound,  in  deciding  the  case,  to  take  notice  of  the 
important  facts  of  history.  We  cannot  be  expected  to  attempt  a  re- 
trial of  the  question  of  right  or  wrong  in  what  the  people  in  Chile  have 
done  for  themselves. 

By  the  foregoing  considerations  I  have  been  led  to  the  conclusion 
that  the  accusation  against  the  Itata  has  not  been  sustained.  The  con- 
trary is  established,  and  I  think  that  the  decision  of  this  court  af- 
firming the  judgment  of  dismissal  rendered  by  the  District  Court  ought 
to  be  placed  upon  the  ground  that  the  vessel  was  not  intended  for 
service  against  the  republic  of  Chile. 


912  BIGHTS  AND  DUTIES  OF   NATIONS  IN  TIME  OF   WAR        (Part  3 

CHAPTER  XVII 
NEUTRAL  TRADE  WITH  BELLIGERENTS 


SECTION  1.— GENERAL  PRINCIPLE 


Ex  parte  CHAVASSE. 

In  re  GRAZEBROOK. 

(Court  of  Appeal  In  Bankruptcy,  1865.    34  L.  J.  R.  (N.  S.">  17.) 

This  was  an  appeal  from  an  order  of  Mr.  Commissioner  Perry, 
of  the  Liverpool  District  Court  of  Bankruptcy,  dismissing  with  costs 
a  petition  by  which  the  petitioners  sought  to  obtain  a  share  of  the  pro- 
ceeds of  certain  cotton,  the  result  of  a  successful  running  of  the 
blockade  of  the  ports  of  the  Confederate  States  of  North  America. 

The  circumstances  were  as  follows:  William  Joshua  Grazebrook, 
the  bankrupt,  for  some  years  prior  to  his  bankruptcy  carried  on  the 
business  of  a  merchant  and  commission-agent  at  Liverpool ;  and  in 
1862  he  arranged  with  Horace  Chavasse,  a  sword-manufacturer  of 
Birmingham,  for  the  purchase,  on  their  joint  account,  of  large  quan- 
tities of  arms  and  ammunition,  to  be  consigned  to  Mr.  Thomas  Bar- 
rett Power,  then  carrying  on  business  as  a  merchant  in  the  Confeder- 
ate States  to  be  sold  by  him  for  the  joint  benefit  of  Messrs.  Chavasse 
and  Grazebrook.  Chavasse  was  to  purchase  the  arms  and  ammunition 
on  the  joint  account,  and  to  draw  bills  on  Grazebrook  for  a  portion  of 
the  price,  such  bills  to  be  from  time  to  time  renewed  until  remittances 
should  be  received  from  Power.  The  goods  were  purchased  in  the 
individual  name  of  Chavasse,  and  were  sent  and  consigned  by  him  to 
Messrs.  Lawrence  &  Co.,  the  charterers,  from  Messrs.  Pearson  &  Co. 
of  Hull,  the  owners  of  the  steamer  Modern  Greece,  then  lying  at  that 
port,  for  shipment  on  board  that  vessel  bound  for  any  port  in  the  Con- 
federate States  which  the  supercargo  of  the  vessel  might  think  it  safe 
to  enter. 

The  goods  were  duly  shipped  on  board  the  Modern  Greece,  and  she 
sailed  from  Hull  about  the  20th  of  April,  1862.  The  ship  was  wrecked 
off  Wilmington  in  North  Carolina,  and  a  considerable  portion  of  her 
cargo  was  totally  lost;  such  portions,  however,  of  the  joint  property 
of  Chavasse  and  Grazebrook  as  were  saved  from  the  wreck  were 
cleared  and  sold.     About   £2,000,  part  of  the  money  realized  by  the 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  913 

sale,  was  remitted  to  Grazebrook,  and  the  residue  was  invested  in 
the  purchase  of  cotton. 

None  of  the  bills  drawn  by  Chavasse  upon  and  accepted  by  Graze- 
brook  were  honoured  at  maturity.  Grazebrook  was  adjudicated  bank- 
rupt on  the  17th  of  June,  1863 ;  and  on  the  19th  of  February,  1864, 
Chavasse  executed  a  statutory  deed  of  assignment  for  the  benefit  of  his 
creditors,  which  was  duly  registered  under  the  192d  section  of  the 
Bankruptcy  Act,  1861. 

No  part  of  the  money  produced  by  the  sale,  or  of  the  cotton  in 
which  part  of  the  money  was  invested,  was  ever  paid  or  remitted  to 
Chavasse,  and  the  trustees  of  his  deed  of  assignment  presented  their 
petition  seeking  to  have  the  same  apportioned.  The  petition  was  dis- 
missed with  costs  by  the  commissioner,  on  the  ground  of  the  illegality 
of  the  contract.    Hence  the  present  appeal.     *     *     * 

The  Lord  Chancellor  [Westbury].  In  the  view  of  international 
law,  the  commerce  of  nations  is  perfectly  free  and  unrestricted.  The 
subjects  of  each  nation  have  a  right  to  interchange  the  products  of 
labour  with  the  inhabitants  of  every  other  country.  If  hostilities 
occur  between  two  nations,  and  they  become  belligerents,  neither  bel- 
ligerent has  a  right  to  impose,  or  to  require  a  neutral  government  to 
impose,  any  restrictions  on  the  commerce  of  its  subjects.  The  bel- 
ligerent power  certainly  acquires  certain  rights  which  are  given  to  it 
by  international  law.  One  of  these  is  the  right  to  arrest  and  capture, 
when  found  on  the  sea,  the  high  road  of  nations,  any  munitions  of 
war,  which  are  destined  and  in  the  act  of  being  transported  in  a 
neutral  ship  to  its  enemy.  This  right,  which  the  laws  of  war  give  to 
a  belligerent  for  his  protection,  does  not  involve  as  a  consequence  that 
the  act  of  the  neutral  subject  in  so  transporting  munitions  of  war  to  a 
belligerent  country  is  either  a  personal  offence  against  the  belligerent 
captor,  or  an  act  which  gives  him  any  ground  of  complaint  either 
against  the  neutral  trader  personally  or  against  the  government  of 
which  he  is  a  subject.  The  title  of  the  belligerent  is  limited  entirely  to 
the  right  of  seizing  and  condemning  as  lawful  prize  the  contraband  ar- 
ticles. He  has  no  right  to  inflict  any  punishment  on  the  neutral  trader, 
or  to  make  his  act  a  ground  of  representation  or  complaint  against 
the  neutral  state  of  which  he  is  a  subject.  In  fact,  the  act  of  the  neu- 
tral trader  in  transporting  munitions  of  war  to  the  belligerent  country 
is  quite  lawful,  and  the  act  of  the  other  belligerent  in  seizing  and  ap- 
propriating the  contraband  articles  is  equally  lawful.  Their  conflict- 
ing rights  are  co-existent,  and  the  right  of  the  one  party  does  not 
render  the  act  of  the  other  party  wrongful  or  illegal. 

There  is,  however,  much  incorrectness  of  expression  in  some  writ- 
ers on  the  subject,  who,  in  consequence  of  this  right  of  the  belligerent 
to  seize  in  transitu  munitions  of  war  while  being  conveyed  by  a  neutral 
to  his  enemy,  speak  of  this  act  of  transport  by  the  neutral  as  un- 
ScoTT  Int.  Law— 58 


914  RIGHTS   AND   DUTIES   OP   NATIONfe   IN   TIME   OP   WAR         (Part  S 

lawful  and  prohibited  commerce.  But  this  commerce,  which  was 
perfectly  lawful  for  the  neutral  with  either  belligerent  country  before 
the  war,  is  not  made  by  the  war  unlawful  or  capable  of  being  pro- 
hibited by  both  or  either  of  the  belligerents ;  and  all  that  international 
law  does  is  to  subject  the  neutral  merchant  who  transports  the  contra- 
band of  war  to  the  risk  of  having  his  ship  and  cargo  captured  and 
condemned  by  the  belligerent  power  for  whose  enemy  the  contraband 
is  destined.  That  the  act  of  the  neutral  merchant  is  in  itself  inno- 
cent is  plain  from  the  circumstance  that  the  belligerent  captor  cannot 
visit  it  with  any  penal  consequences  beyond  his  judicial  condemnation 
of  the  ship  and  cargo,  nor  can  he  make  it  the  subject  of  complaint. 
This  is  well  explained  by  Vattel  in  the  following  passage.  Speak- 
ing as  a  belligerent  power,  he  says:  "Quand  j'ai  notifie  aux  nations 
neutres  ma  declaration  de  guerre  a  tel  ou  tel  peuple,  si  elles  veulent 
s'exposer  a  lui  porter  des  choses  qui  servent  a  la  guerre,  elles  n'auront 
pas  sujet  de  se  plaindre  au  cas  que  leurs  marchandises  tombent  dans 
mes  mains,  de  meme'que  je  ne  leur  declare  pas  la  guerre  pour  avoir 
tente  de  les  porter.  Elles  souffrent,  il  est  vrai,  d'une  guerre  a  laquelle 
elles  n'ont  point  de  part,  mais  c'est  par  accident.  Je  ne  m'oppose 
point  a  leur  droit — j'use  seulement  du  mien,  et  si  nos  droits  se  croisent 
et  se  nuisent  reciproquement,  c'est  par  I'effet  d'une  neqessite  inevitable. 
Ce  conflit  arrive  tous  les  jours  dans  la  guerre."  Liv.  3,  c.  7,  §  111. 
Vattel  must  here  be  considered  as  speaking  of  the  acts  of  the  sub- 
jects of  a  neutral  power,  and  not  of  the  neutral  government  itself, 
for  the  supplying  of  warlike  stores  to  a  belligerent  by  a  neutral  state 
would  clearly  be  a  breach  of  neutrality. 

The  same  doctrine  as  to  the  freedom  of  the  commerce  of  the  neu- 
tral subject  is  more  explicitly  stated  by  Mr.  Chancellor  Kent,  in  the 
first  volume  of  his  Commentaries,  p.  142,  and  was  most  distinctly 
affirmed  in  a  celebrated  decision — The  Santissima  Trinidad — of  the 
Supreme  Court  of  the  United  States.  The  language  of  Chancellor 
Kent  is  clear  and  comprehensive:  "It  is  a  general  understanding, 
grounded  on  true  principles,  that  the  powers  at  war  may  seize  and 
confiscate  all  contraband  goods,  without  any  complaint  on  the  part 
of  the  neutral  merchant,  and  without  any  imputation  of  a  breach  of 
neutrality  in  the  neutral  sovereign  himself.  It  was  contended  on  the 
part  of  the  French  nation  in  1796,  that  neutral  governments  were 
bound  to  restrain  their  subjects  from  selling  or  exporting  articles 
contraband  of  war  to  the  belligerent  powers.  But  it  was  successfully 
shewn  on  the  part  of  the  United  States  that  neutrals  may  lawfully 
sell  at  home  to  a  belligerent  purchaser,  or  carry  themselves  to  the 
belligerent  powers,  contraband  articles,  subject  to  the  right  of  seizure 
in  transitu.  This  right  has  since  been  explicitly  declared  by  the  ju- 
dicial authorities  of  this  country.  The  right  of  the  neutral  to  trans- 
port, and  of  the  hostile  power  to  seize,  are  conflicting  rights,  and 

Scott  Int.Law 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  915 

neither  party  can  charge  the  other  with  a  criminal  act."  The  material 
passage  of  the  judgment  in  the  case  of  the  Santissima  Trinidad  which 
affirms  this,  as  given  in  7  Wheat.  340,  5  L.  Ed.  454,  is  the  following : 
"There  is  nothing  in  our  laws,  or  in  the  law  of  nations,  that  forbids 
our  citizens  from  sending  armed  vessels  as  well  as  munitions  of  war 
to  foreign  ports  for  sale.  It  is  a  commercial  adventure  which  no  na- 
tion is  bound  to  prohibit,  and  which  only  exposes  the  persons  en- 
gaged in  it  to  the  penalty  of  confiscation." 

I  take  this  passage  to  be  a  very  correct  representation  of  the  present 
state  of  the  law  of  England  also.  For  if  a  British  ship-builder  builds 
a  vessel  of  war  in  an  English  port,  and  arms  or  equips  her  for  war 
bona  fide  on  his  own  account,  as  an  article  of  merchandise,  and  not 
under  or  by  virtue  of  any  agreement,  understanding  or  concert  with 
a  belligerent  power,  he  may  lawfully,  if  acting  bona  fide,  send  the 
ship,  so  armed  and  equipped,  for  sale  as  merchandise  in  a  belligerent 
country,  and  will  not  in  so  doing  violate  the  provisions  or  incur  the 
penalties  of  the  Foreign  Enlistment  Act. 

It  is  true  that,  under  the  provisions  of  the  act  of  the  16  &  17 
Vict.  c.  107,  Her  Majesty  has  power  by  proclamation  or  Order  in 
Council  to  prohibit  the  exportation  of  certain  goods,  including  arms, 
ammunition,  gunpowder,  naval  and  military  stores,  but  no  Order  in 
Council  or  proclamation  was  made  in  the  terms  or  under  the  special 
authority  of  this  statute.  Great  reliance,  however,  was  placed  by  the 
counsel  for  the  respondents  on  the  Queen's  Proclamation  of  the  13th 
of  May,  1861.  Although  it  was  admitted  that  it  could  not  be  treated 
as  made  under  the  authority  of  the  last  mentioned  statute,  I  need  not 
observe  that  it  is  the  object  of  a  proclamation  to  make  known  the 
existing  law,  and  that  it  can  neither  make  nor  unmake  law.  But  in 
truth  the  proclamation  of  1861  is  directed,  and  very  properly,  to  two 
objects:  first,  to  declare  that  the  provisions  of  the  Foreign  Enlist- 
ment Act  would  be  strictly  enforced;  and,  secondly,  not  to  prohibit 
the  exportation  of  warlike  stores,  but  to  warn  the  subjects  of  the 
realm  that  if  any  subject  carried  contraband  of  war  to  either  bellig- 
erent he  would  incur  the  penal  consequences  of  the  law  of  nations,  and 
would  receive  no  protection  or  relief  from  these  consequences  (that  is, 
from  capture  and  condemnation)  at  the  hands  of  Her  Majesty.  The 
proclamation  has  no  effect  whatever  on  the  legality  of  this  adventure. 

I  am  of  opinion,  therefore,  that  this  adventure  between  the  bank- 
rupt and  the  petitioner  was  a  lawful  contract,  and  that  the  ordinary 
rights  of  property  result  from  it.  Consequently,  I  am  of  opinion  that 
the  goods  in  which  the  proceeds  of  the  adventure  were  invested  be- 
long to  the  petitioner  and  the  bankrupt,  according  to  their  several  in- 
terests in  that  adventure  and  their  contributions  to  the  same,  and  I 
shall  remit  the  case  to  the  Commissioner  with  this  declaration:  Re- 
verse the  order  of  the  Commissioner;  declare  that  there  was  a  valid 
partnership  between  the  bankrupt  and  the  petitioner  in  the  adventure 


916  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP  WAR         (Part  3 

described  in  the  petition,  and  that  the  accounts  of  the  partnership  ought 
to  be  taken,  the  partnership  property  sold  or  otherwise  disposed  of, 
the  proceeds  applied  in  payment  of  the  debts  of  the  partnership,  and 
the  surplus  divided  according  to  the  interests  of  the  petitioner  and  the 
bankrupt  respectively. 


THE  HELEN. 

(High  Court  of  Admiralty,  1865.     L.  R.  [1865-671  1  Adm.  &  Ecc.  Cas.  1.) 

In  this  case,  the  master  sued  for  wages  upon  an  agreement  entered 
into  between  himself  and  the  defendants,  the  owners  of  the  Helen. 

The  defendants,  in  the  fourth  article  of  their  answer,  alleged  that 
"the  agreement  was  made  and  entered  into  for  the  purpose  of  run- 
ning the  blockade  of  the  Southern  ports  of  the  United  States  of 
America,  or  one  of  them,  and  was  and  is  contrary  to  law,  and  cannot 
be  recognized  or  enforced  by  this  honourable  court."     *     *     * 

The  facts  and  the  cases  cited  are  fully  reviewed  in  the  judgment. 

Cur.  adv.  vult. 

Dr.  LusHiNGTON.  This  is  a  motion  by  the  plaintiff  to  reject  the 
fourth  article  of  the  defendant's  answer.  The  parties  in  this  cause  are 
John  Andrews  Wardell,  formerly  the  master  of  the  Helen,  plaintiff, 
and  the  Albion  Trading  Company,  the  owners  of  the  ship,  defendants. 
The  master  sues  for  wages  (with  certain  premiums  added)  alleged  to 
have  been  earned  between  July,  1864,  and  March,  1865.  The  answer 
states  that  according  to  the  agreement  as  set  forth  by  the  defendants, 
the  plaintiff  has  been  paid  all  that  was  due  to  him.  This  part  of  the 
answer  is  not  objected  to.  The  fourth  and  last  article  is  the  one 
objected  to.  It  alleges  that  the  agreement  was  entered  into  for  the 
purpose  of»  breaking  the  blockade  of  the  Southern  States  of  America ; 
that  such  an  agreement  is  contrary  to  law,  and  cannot  be  enforced  by 
this  court.  In  the  course  of  the  argument,  the  judgment  in  Ex  parte 
Chavasse  re  Grazebrook,  11  Jurist  (N.  S.)  400,  34  L.  J.  (Bkr.)  17, 
was  cited  as  governing  the  case;  a  judgment  recently  delivered,  by 
Lord  Westbury  whilst  he  was  Lord  Chancellor.  The  law  there  laid 
down  is  briefly  stated,  that  a  contract  of  partnership  in  blockade- 
running  is  not  contrary  to  the  municipal  law  of  this  country ;  and  by 
the  decree  the  partnership  was  declared  valid,  and  the  accounts  ordered 
accordingly.  It  was  admitted  that  this  decision  is  directly  applicable 
to  the.  present  case,  a  suit  to  recover  wages  according  to  a  contract 
with  respect  to  an  intended  adventure  to  break  the  blockade. 

That  a  decision  of  the  Lord  Chancellor  is  to  be  treated  by  this  court 
with  the  greatest  respect  there  can  be  no  doubt,  but  is  it  absolutely 
binding?  There  are  three  tribunals  whose  decisions  are  absolutely 
binding  upon  the  Court  of  Admiralty:  1.  The  House  of  Lords.  2. 
The  Privy  Council.  3.  The  Courts  of  Common  Law  when  deciding 
upon  the  construction  of  a  statute.     If  a  decision  of  any  of  these 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  917 

tribunals  is  cited,  all  that  the  Court  of  Admiralty  can  do  is  to  inquire 
if  the  decision  is  applicable  to  the  case.  If  so,  then  it  is  the  duty  of 
the  court  to  obey,  whatever  may  be  its  own  judgment. 

No  other  decisions  are,  I  believe,  absolutely  binding  on  the  court. 
On  the  present  occasion,  no  decision  has  been  cited  from  the  House 
of  Lords  or  Privy  Council.  Whatever,  therefore,  may  be  the  effect 
of  the  decisions  of  other  tribunals,  I  am  not  relieved  from  the  duty 
of  reconsidering  the  whole  question. 

An  intimation  has  been  given  that  this  case  will  be  carried  to 
the  Judicial  Committee ;  if  so,  I  apprehend  that  tribunal  might  be 
inclined  to  consider  me  remiss  in  my  duty  if  I  had  omitted  to  form 
an  independent  judgment  on  the  case,  and  to  state  it  with  my  rea- 
sons. It  is,  I  conceive,  admitted  on  all  hands,  that  the  court  must  en- 
force the  agreement  with  the  master,  unless  it  is  satisfied  that  such 
agreement  is  illegal  by  the  municipal  law  of  Great  Britain.  In  order 
to  prove  this  proposition,  the  defendants  say  that  the  agreement  to 
break  the  blockade  by  a  neutral  ship  is,  on  the  part  of  all  persons 
concerned,  illegal  according  to  the  law  of  nations,  and  that  the  law 
of  nations  is  a  part  of  the  municipal  law  of  the  land — ergo,  this  con- 
tract was  illegal  by  municipal  law. 

Now  a  good  deal  may  depend  on  the  sense  in  which  the  word  "ille- 
gal" is  used.  I  am  strongly  inclined  to  think  that  the  defendants 
attach  to  it  a  more  extensive  meaning  than  it  can  properly  bear,  or 
was  intended  to  bear  by  those  who  used  it.  The  true  meaning,  I 
think,  is  that  all  such  contracts  are  illegal  so  far,  that  if  carried  out, 
they  would  lead  to  acts  which  might,  under  certain  circumstances, 
expose  the  parties  concerned  to  such  penal  consequences  as  are  sanc- 
tioned by  international  law,  for  breach  of  blockade,  or  for  the  carrying 
of  contraband.  If  so,  the  illegality  is  of  a  limited  character.  For 
instance,  suppose  a  vessel  after  breaking  the  blockade  completes  her 
voyage  home,  and  is  afterwards  seized  on  another  voyage,  tlie  orig- 
inal taint  of  illegality — whatever  it  may  have  been — is  purged,  and 
the  ship  cannot  be  condemned;  yet  if  the  voyage  was,  ab  initio,  wholly 
and  absolutely  illegal,  both  by  the  law  of  nations  and  the  municipal 
law,  why  should  its  successful  termination  purge  the  offence?  Let 
me  consider  the  relative  situation  of  the  parties.  A  neutral  country 
has  a  right  to  trade  with  all  other  countries  in  time  of  peace.  One  of 
these  countries  becomes  a  belligerent,  and  is  blockaded.  Why  should 
tile  right  of  the  neutral  be  affected  by  the  acts  of  the  other  belligerent.'' 
The  answer  of  the  blockading  power  is:  "Mine  is  a  just  and  nec- 
essary war,"  a  matter  which,  in  ordinary  cases,  the  neutral  cannot 
question,  "I  must  seize  contraband,  I  must  enforce  blockade,  to  carry 
on  the  war."  In  this  state  of  things  there  has  been  a  long  and  ad- 
mitted usage  on  the  part  of  all  civilized  states — a  concession  by  both 
parties,  the  belligerent  and  the  neutral — a  universal  usage  which  con- 
stitutes the  law  of  nations.    It  is  only  with  reference  to  this  usage  that 


918  RIGHTS  AND   DUTIES   OF  NATIONS   IN   TIME   OF   WAR         (Part  3 

the  belligerent  can  interfere  with  the  neutral.  Suppose  no  question  of 
blockade  or  contraband,  no  belligerent  could  claim  a  right  of  seizure 
on  the  high  seas  of  a  neutral  vessel  going  to  the  port  of  another  bel- 
ligerent, however  essential  to  his  interest  it  might  be  so  to  do. 

What  is  the  usage  as  to  blockade?  There  are  several  conditions  to 
be  observed  in  order  to  justify  the  seizure  of  a  ship  for  breach  of 
blockade.  The  blockade  must  be  effectual  and  (save  accidental  in- 
terruption by  weather)  constantly  enforced.  The  neutral  vessel  must 
be  taken  in  delicto.  The  blockade  must  be  enforced  against  all  nations 
alike,  including  the  belligerent  one.  When  all  the  necessary  conditions 
are  satisfied,  then,  by  the  usage  of  nations,  the  belligerent  is  allowed 
to  capture  and  condemn  neutral  vessels  without  remonstrance  from 
the  neutral  state.  It  never  has  been  a  part  of  admitted  common  usage 
that  such  voyages  should  be  deemed  illegal  by  the  neutral  state,  still 
less  that  the  neutral  state  should  be  bound  to  prevent  them;  the  bel- 
ligerent has  not  a  shadow  of  right  to  require  more  than  universal 
usage  has  given  him,  and  has  no  pretence  to  say  to  the  neutral :  "You 
shall  help  me  to  enforce  my  belligerent  right  by  curtailing  your  own 
freedom  of  commerce,  and  making  that  illegal  by  your  own  law  which 
was  not  so  before."  This  doctrine  is  not  inconsistent  with  the  maxim 
that  the  law  of  nations  is  part  of  the  law  of  the  land.  The  fact  is, 
the  law  of  nations  has  never  declared  that  a  neutral  state  is  bound  to 
impede  or  diminish  its  own  trade  by  municipal  restriction.  Our  own 
Foreign  Enlistm.ent  Act  is  itself  a  proof  that  to  constitute  transac- 
tions between  British  subjects,  when  neutral  and  belligerents,  a  mu- 
nicipal offence  by  the  law  of  Great  Britain,  a  statute  was  necessary. 
If  the  acts  mentioned  in  that  statute  were  in  themselves  a  violation  of 
municipal  law,  why  any  statute  at  all?  I  am  now  speaking  of  fitting 
out  ships  of  war,  not  of  levying  soldiers,  which  is  altogether  a  different 
matter.  Then  how  stands  the  case  upon  authority?  I  may  here  say, 
that  in  principle,  there  is  no  essential  difference  whether  the  question 
of  breach  of  municipal  law  is  raised  with  regard  to  contraband  or 
breach  of  blockade. 

Mr.  Duer  is  the  only  text-writer  who  maintains  an  opinion  contrary 
to  what  I  have  stated  to  be  the  law.  He  maintains  it  with  much 
ability  and  acuteness,  but  he  stands  alone.  He  himself  admits  that  an 
insurance  of  a  contraband  voyage  is  no  offence  against  municipal  law 
of  a  neutral  country,  according  to  the  practice  of  all  the  principal  states 
of  continental  Europe.  Duer  on  Marine  Insurance,  vol.  1,  lect.  vii. 
In  the  American  courts  the  question  has  been  more  than  once  agitated, 
but  with  the  same  result.  In  the  case  of  The  Santissima  Trinidad,  7 
Wheat.  340,  5  L.  Ed.  454,  Mr.  Justice  Story  says:  "It  is  apparent 
that,  though  equipped  as  a  vessel  of  war,  she  (The  Independencia) 
was  sent  to  Buenos  Ayres  on  a  commercial  adventure,  contraband,  in- 
deed, but  in  no  s'hape  violating  our  laws  or  our  national  neutrality. 
If  captured  by  a  Spanish  ship  of  war  during  the  voyage,  she  would 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  919 

have  been  justly  condemned  as  good  prize,  and  for  being  engaged  in 
a  traffic  prohibited  by  the  law  of  nations.  But  there'  is  nothing  in 
our  law  or  in  the  law  of  nations  that  forbids  our  citizens  from  send- 
ing armed  vessels  as  well  as  munitions  of  war  to  foreign  ports  for 
sale.  It  is  a  commercial  adventure  which  no  nation  is  bound  to  pro- 
hibit, and  which  only  exposes  the  persons  engaged  in  it  to  the  penalty 
of  confiscation."  *  *  *  "There  is  no  pretence  for  saying  that  the 
original  outfit  on  the  voyage  was  illegal."  Again,  in  Richardson  v. 
The  Marine  Insurance  Company,  6  Mass.  112,  4  Am.  Dec.  92,  Par- 
sons, C.  J.,  observes:  "The  last  class  we  shall  mention  is  the  trans- 
portation by  a  neutral  of  goods  contraband  of  war  to  the  country  of 
either  of  the  belligerent  powers.  And  here,  it  is  said,  that  these  voy- 
ages are  prohibited  by  the  law  of  nations,  which  forms  a  part  of  the 
municipal  law  of  every  state,  and,  consequently,  that  an  insurance  on 
such  voyages  made  in  a  neutral  state  is  prohibited  by  the  laws  of  that 
state,  and  therefore,  as  in  the  case  of  an  insurance  on  interdicted  com- 
merce, is  void.  That  there  are  certain  laws  which  form  a  part  of 
the  municipal  laws  of  all  civilized  states,  regulating  their  mutual  in- 
tercourse and  duties,  and  thence  called  the  law  of  nations,  must  be 
admitted :  as,  for  instance,  the  law  of  nations  affecting  the  rights  and 
the  security  of  ambassadors.  But  we  do  not  consider  the  law  of  na- 
tions, ascertaining  what  voyages  or  merchandise  are  contraband  of 
war,  as  having  the  same  extent  and  effect.  It  is  agreed  by  every  civi- 
lized state  that,  if  the  subject  of  a  neutral  power  shall  attempt  to 
furnish  either  of  the  belligerent  sovereigns  with  goods  contraband  of 
war,  the  other  may  rightfully  seize  and  condemn  them  as  prize.  But  we 
do  not  know  of  any  rule  established  by  the  law  of  nations  that  the 
neutral  shipper  of  goods  contraband  of  war  is  an  offender  against  his 
own,  sovereign,  and  liable  to  be  punished  by  the  municipal  laws  of  his 
own  country.  When  a  neutral  sovereign  is  notified  of  a  declaration 
of  war,  he  may,  and  usually  does,  notify  his  subjects  of  it,  with  orders 
to  decline  all  contraband  trade  with  the  nations  at  war,  declaring  that, 
if  they  are  taken  in  it,  he  cannot  protect  them,  but  not  announcing  the 
trade  as  a  violation  of  his  own  laws.  Should  their  sovereign  offer  to 
protect  them,  his  conduct  would  be  incompatible  with  his  neutrality. 
And  as,  on  the  one  hand,  he  cannot  complain  of  the  confiscation  of  his 
subjects'  goods,  so,  on  the  other,  the  power  at  war  does  not  impute 
to  him  these  practices  of  his  subjects.  A  neutral  merchant  is  not 
obliged  to  regard  the  state  of  war  between  other  nations,  but  if  he 
ships  goods  prohibited  jure  belli,  they  may  be  rightfully  seized  and 
condemned.  It  is  one  of  the  cases  where  two  conflicting  rights  exist, 
which  either  party  may  exercise  without  charging  the  other  with  doing 
wrong.  As  the  transportation  is  not  prohibited  by  the  laws  of  the 
neutral  sovereign,  his  subjects  may  lawfully  be  concerned  in  it;  and, 
as  the  right  of  war  lawfully  authorizes  a  belligerent  power  to  seize 
and  condemn  the  goods,  he  may  lawfully  do  it."     Lastly,  in  Seton, 


920  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

Maitland  &  Co.  v.  Low,  1  Johns.  Cas.  (N.  Y.)  5,  Mr.  Justice  Kent 
says:  "I  am  of  opinion  that  the  contraband  goods  were  lawful  goods, 
and  that  whatever  is  not  prohibited  to  be  exported  by  the  positive 
law  of  the  country  is  lawful.  It  may  be  said  that  the  law  of  nations 
is  part  of  the  municipal  law  of  the  land,  and  that  by  that  law  con- 
traband trade  is  prohibited  to  neutrals,  and,  consequently,  unlaw- 
ful. This  reasoning  is  not  destitute  of  force;  but  the  fact  is  that 
the  law  of  nations  does  not  declare  the  trade  to  be  unlawful.  It 
only  authorizes  the  seizure  of  the  contraband  articles  by  the  bel- 
ligerent powers." 

Then  as  to  the  text-books,  I  need  only  give  the  references  to  them : 
Arnould,  pp.  763,  764;  766-773;  Kent's  Comm.  iii,  367;  Marshall 
on  Marine  Insurance,  p.  37;  Maud  and  Pollock,  p.  309;  Twiss,  ii, 
297 ;  Parson's  Maritime  Law,  ii,  95 ;  Phillips  on  Insurance,  c.  3,  §  2, 
p.  163. 

In  the  English  courts  the  only  case  in  which  the  point  has  been 
actually  decided  is  the  recent  case  before  the  Lord  Chancellor,  which 
I  have  already  adverted  to.  With  regard  to  the  cases  in  Mr.  Duer's 
book,  Naylor  v.  Taylor,  9  B.  &  C.  718,  Medeiross  v.  Hill,  8  Bing.  231,  it 
is  enough  to  say  that,  in  the  view  which  the  court  eventually  took  of 
the  facts,  the  question  of  law  did  not  arise.  It  is  in  these  two  cases  im- 
possible to  say  with  certainty  what  was  the  opinion  of  the  judges  at 
nisi  prius. 

I  cannot  entertain  any  doubt  as  to  the  judgment  I  ought  to  pro- 
nounce in  this  case.  It  appears  that  principle,  authority,  and  usage 
unite  in  calling  on  me  to  reject  the  new  doctrine  that,  to  carry  on 
trade  with  a  blockaded  port,  is  or  ought  to  be  a  municipal  offence  by 
the  law  of  nations.  I  must  direct  the  4th  article  cxf  the  answer  to  be 
struck  out.  I  cannot  pass  by  the  fact  that  the  attempt  to  introduce 
this  novel  doctrine  comes  from  an  avowed  particeps  criminis,  who 
seeks  to  benefit  himself  by  it.  As  he  has  failed  on  every  ground,  he 
must  pay  the  cost  of  his  experiment. 


PEARSON  et  al.  v.  PARSON  et  al. 
(Circuit  Court  of  the  United  States,  E.  D.  Louisiana,  1901.     108  Fed.  461.) 

In  Equity.     On  motion  for  preliminary  injunction. 

The  complainants  are  Samuel  Pearson,  a  citizen  of  the  South  Afri- 
can Republic,  Edward  Van  Ness,  a  citizen  of  the  state  of  New  York, 
and  Charles  D.  Pierce,  consul  general  of  the  Orange  Free  State, 
whose  citizenship  is  not  set  forth.  In  their  original  bill  herein  they 
aver,  in  substance:  That  the  United  States  are  at  peace  with  the 
South  African  Republic  and  the  Orange  Free  State,  and  that  Great 
Britain  is  at  war  with  the  same.  That  complainants  are  owners  of 
property  situated  in  the  South  African  Republic  and  the  Orange  Free 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  921 

State.  That  Great  Britain,  by  means  of  armies,  seeks  to  destroy, 
and  is  now  destroying,  the  property  of  complainants.  That,  for  the 
purpose  of  carrying  on  the  war,  the  steamship  Anglo-Australian,  of 
which  J.  Parson  is  master,  now  lies  in  the  port  of  New  Orleans,  and 
is  being  loaded  with  1,200  mules,  worth  $150,000,  by  Parson,  and  by 
Elder,  Dempster  &  Co.,  who  are  the  agents  for  the  ship,  her  owners 
and  charterers,  and  who  are  represented  by  Robert  Warriner  and 
Mathew  Warriner.  All  of  the  defendants  are  averred  to  be  British 
subjects.  That  the  steamship  Anglo-Australian  is  employed  in  the 
war  in  the  military  service  of  Great  Britain  by  her  owners  and  charter- 
ers and  by  the  defendants.  That  for  some  time  past  the  defendants,  in 
aid  of  the  war,  have  loaded  ships  at  New  Orleans  with  munitions  of 
war,  viz.  mules  and  horses,  and  have  equipped  ships  with  fittings  for 
the  purpose  of  carrying  military  supplies  and  munitions  of  war  for 
Great  Britain,  and  have  dispatched  the  ships,  well  knowing  that  the 
munitions  of  war  and  the  ships  are  in  the  military  service  of  Great 
Britain,  and  would  be  employed  in  the  war.  That  the  steamship  Anglo- 
Australian  is  about  to  be  dispatched  by  the  defendants,  loaded  with 
mules  and  horses,  being  munitions  of  war,  which  are  the  property  of 
the  government  of  Great  Britain,  and  the  same  are  to  be  employed  in 
the  military  service  of  Great  Britain.  That  the  defendants  are  mak- 
ing the  port  of  New  Orleans  the  basis  of  military  operations  in  aid  of 
Great  Britain  in  the  war,  and  are  using  the  port  for  the  purpose  of 
renewal  and  augmentation  of  the  military  supplies  and  arms  of  Great 
Britain  in  the  war.  That  the  defendants  have  caused  and  are  caus- 
ing complainants  irreparable  injury,  in  that  their  acts  enable  Great 
Britain  to  carry  on  the  war  with  the  South  African  Republic  and 
Orange  Free  State,  wherein  are  found  the  property  of  complainants, 
and  tljiat  the  army  of  Great  Britain  is  enabled,  by  the  means  fur- 
nished by  the  defendants,  to  lay  waste  and  destroy  the  farms  and  homes 
of  complainants,  and  to  hold  as  prisoners  of  war  the  wife  and  chil- 
dren of  the  complainant  Pearson.  That  the  complainant  Pearson  has 
already  suffered  loss  of  property  to  the  amount  of  $90,000,  and  is 
now  threatened  with  further  loss  of  $100,000,  by  the  acts  complained 
of  and  the  continuation  of  the  war.  That  the  war  is  only  carried  on  by 
the  renewal  and  augmentation  of  the  military  supplies  of  Great  Britain 
from  the  ports  of  the  United  States  and  especially  the  port  of  New 
Orleans,  and  that  when  this  ceases  the  war  will  end.  That  the  de- 
fendants have  conspired  with  certain  agents  and  servants  of  Great 
Britain,  whose  names  are  unknown,  to  aid  in  the  carrying  on  of  the 
war,  in  the  renewal  and  augmentation  of  the  supplies  of  Great  Brit- 
ain, and  in  the  equipping  with  munitions  of  war  and  the  dispatching 
of  the  ship  Anglo-Australian  and  other  vessels  for  the  purpose  of 
slaying  the  citizens  of  the  South  African  Republic  and  the  Orange 
Free  State,  and  destroying  their  property,  and  more  particularly  t  i 
injure  and  destroy  the  property  and  rights  of  complainants,  all  in  vio- 


922  UIGIITS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   WAR         (Part  3 

lation  of  and  against  the  rights,  privileges,  and  immunities  granted  and 
secured  to  complainants  by  the  law  of  nations  and  the  constitution 
and  laws  of  the  United  States.  The  prayer  of  the  original  bill  is,  in 
substance,  for  an  injunction  prohibiting  the  defendants,  their  agents, 
servants,  etc.,  from  loading  on  the  ship  Anglo-Australian,  or  other 
vessels,  munitions  of  war,  viz.  mules  and  horses  destined  for  use  by 
Great  Britain  in  the  war.     *     *     * 

Parlance,  District  Judge  (after  stating  the  facts). *  It  was  con- 
ceded on  the  argument  that  the  court  has  no  jurisdiction  of  this  cause 
ratione  personarum.  The  complainants  sought  to  maintain  the  juris- 
diction ratione  materise  by  a  claim  of  right  under  the  treaty  of  Wash- 
ington of  May  8,  1871,  between  Great  Britain  and  the  United  States 
relative  to  the  "Alabama  claims,"  in  which  treaty  it  is  declared  that  : 
"A  neutral  government  is  bound  *  *  *  not  to  permit  or  suffer 
either  belligerent  to  make  use  of  its  ports  or  waters  as  the  base  of 
naval  operations  against  the  other,  or  for  the  purpose  of  the  renewal 
or  augmentation  of  military  supplies  or  arms,  or  the  recruitment  of 
men." 

The  complainants  contend  that,  by  reason  of  this  declaration  of 
the  treaty,  they  are  entitled  to  invoke  the  equity  powers  of  this  court 
for  the  protection  of  their  property.  If  the  complainants  could  be 
heard  to  assert  here  rights  personal  to  themselves  in  the  treaty  just 
mentioned,  and  if  the  mules  and  horses  involved  in  this  cause  are 
munitions  of  war,  all  of  which  is  disputed  by  the  defendants,  it  would 
become  necessary  to  determine  whether  the  United  States  intended 
by  the  above  declaration  of  the  treaty  to  subvert  the  well-established 
principle  of  international  law  that  the  private  citizens  of  a  neutral 
nation  can  lawfully  sell  supplies  to  belligerents.  It  is  almost  impossi- 
ble to  suppose,  a  priori,  that  the  United  States  would  have  done  so, 
and  would  have  thus  provided  for  the  most  serious  and  extensive  de- 
rangement of  and  injury  to  the  commerce  of  our  citizens  whenever 
two  or  more  foreign  nations  should  go  to  war;  and  it  would  seem 
that  there  is  nothing  in  the  treaty,  especially  when  its  history  and 
purposes  are  considered,  which  would  warrant  the  belief  that  the 
United  States  insisted  upon  inserting  therein  a  new  principle  of  inter- 
national law,  from  which  the  greatest  damage  might  result  to  the  com- 
merce of  this  country,  and  which  was  absolutely  different  from  and 
antagonistic  to  the  rule  and  policy  which  the  government  of  this 
country  had  theretofore  strenuously  and  invariably  followed. 

The  principle  that  neutral  citizens  may  lawfully  sell  to  belligerents 
has  long  since  been  settled  in  this  country  by  the  highest  judicial  au- 
thority. In  the  case  of  The  Santissima  Trinidad,  7  Wheat.  340,  5 
L.  Ed.  454,  Mr.  Justice  Story,  as  the  organ  of  the  Supreme  Court, 
said :    "There  is  nothing  in  our  laws  or  in  the  law  of  nations  that  f or- 

1  The  statement  of  facts  is  abridged. 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  923 

bids  our  citizens  from  sending  armed  vessels,  as  well  as  munitions  of 
war,  to  foreign  ports  for  sale.  It  is  a  commercial  adventure  which  no 
nation  is  bound  to  prohibit,  and  which  only  exposes  the  persons  en- 
gaged in  it  to  the  penalty  of  confiscation."  See,  also,  the  case  of  The 
Bermuda,  3  Wall.  551,  18  L.  Ed.  200. 

16  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  p.  1161,  verbis  "International 
Law,"  citing  cases  in  support  of  the  text,  says :  "A  neutral  nation  is, 
in  general,  bound  not  to  furnish  munitions  of  war  to  a  belligerent,  but 
there  is  no  obligation  upon  it  to  prevent  its  subjects  from  doing  so; 
and  neutral  subjects  may  freely  sell  at  home  to  a  belligerent  purchaser, 
or  carry  to  a  belligerent  power,  arms  and  munitions  of  war,  subject 
only  to  the  possibility  of  their  seizure  as  contraband  while  in  transit." 
Numerous  other  authorities  on  this  point  could  be  cited,  if  it  was 
not  deemed  entirely  unnecessary  to  do  so. 

The  principle  has  been  adhered  to  by  the  executive  department  of 
the  government  from  the  time  when  Mr.  Jefferson  was  Secretary  of 
State  to  the  present  day.  Mr.  Jefferson  said  in  1793 :  "Our  citizens 
have  always  been  free  to  make,  vend,  and  export  arms.  It  is  the 
constant  occupation  and  livelihood  of  some  of  them.  To  suppress 
their  callings,  the  only  means,  perhaps,  of  their  subsistence — because 
a  war  exists  in  foreign  and  distant  countries,  in  which  we  have  no 
concern,  would  scarcely  be  expected.  It  would  be  hard  in  principle 
and  impossible  in  practice.  The  law  of  nations,  therefore,  respecting 
the  rights  of  those  at  peace,  does  not  require  from  them  such  an 
internal  derangement  in  their  occupation."  To  the  same  effect  are 
numerous  other  expressions  and  declarations  of  the  executive  depart- 
ment of  the  government  from  the  earliest  period  of  the  country  to 
the  present  time.  See  3  Whart.  Int.  Law  Dig.  par.  391,  tit.  "Munitions 
of  War." 

Affidavits  in  the  cause  puiport  to  show  that  the  vessels  which  make 
the  exportations  of  mules  and  horses  of  which  the  bills  complain  are 
private  merchant  vessels ;  that  they  are  commanded  by  their  usual 
officers,  appointed  and  paid  by  the  owners;  that  they  are  manned  by 
their  usual  private  crews,  which  are  also  paid  by  the  owners ;  that 
they  are  not  equipped  for  war ;  that  they  are  not  in  the  military  serv- 
ice of  Great  Britain,  nor  controlled  by  the  naval  authorities  of  that 
nation ;  that  they  carry  the  mules  and  horses  as  they  would  carry  any 
other  cargo;  and  that  the  mules  and  horses  are  to  be  landed,  not  on 
the  territory  of  the  South  African  Republic  or  the  Orange  Free  State, 
but  in  Cape  Colony,  which  is  territory  belonging  to  Great  Britain.  If. 
these  affidavits  set  out  the  facts  truly,  it  is  difficult  to  see  how  a 
cause  of  complaint  can  arise.  If  a  belligerent  may  come  to  this  country 
and  buy  munitions  of  war,  it  seems  clear  that  he  may  export  them  as 
freight  in  private  merchant  vessels  of  his  own  or  any  other  nation- 
ality, as  cargo  could  be  exported  by  the  general  public. 

Another  consideration  in  this  cause  is  whether  the  allegations  of 


024  RIGHTS  AND   DUTIES  OP  NATIONS  IN  TIME  OP  WAR         (Part  3 

threatened  injury  to  the  property  rights  of  the  complainants  would  in 
any  case  warrant  the  interposition  of  a  court  of  equity.  The  theory  of 
the  complainants  is  that,  if  the  injunction  issues  in  this  cause,  the 
war  will  cease,  but  that,  if  these  horses  and  mules  are  allowed  to  go 
to  South  Africa,  the  war  will  be  carried  on,  and  one  of  the  results  of 
its  further  prosecution  will  be  the  destruction  of  the  complainants' 
property  in  South  Africa.  It  is  not  claimed,  of  course,  that  the  horses 
and  mules  are  to  be  used  specially  to  destroy  the  property  of  the 
complainants.  In  such  cases  as  the  present  one,  where  the  aid  of 
equity  is  invoked  to  protect  property  rights,  the  injury  apprehended 
must  be  a  clear  and  reasonable  one,  proximately  resulting  from  the 
act  sought  to  be  enjoined.  The  injury  apprehended  by  the  complain- 
ants from  the  shipping  of  the  mules  and  horses  seems  to  be  remote, 
indistinct,  and  entirely  speculative.  It  seems  clear  that,  even  if  this 
cause  were  within  the  cognizance  of  this  court,  there  is  herein  no  such 
connection  of  cause  and  effect  between  the  shipment  of  the  animals 
and  the  destruction  of  complainants'  property  as  could  sustain  aii 
averment  of  threatened  irreparable  injury,  and  that  the  averment  that 
the  war  would  cease  if  the  shipments  are  stopped,  which,  in  the  nature 
of  things,  can  only  be  an  expression  of  opinion  and  hope  concerning 
a  matter  hardly  susceptible  of  proof,  could  not  be  made  the  basis  for 
judicial  action. 

It  may  be  well  to  notice  that  there  is  nothing  in  this  cause  upon 
which  could  be  founded  a  charge  that  the  neutrality  statutes  of  the 
United  States  are  being  violated.  A  citation  of  authorities  on  this 
point  is  deemed  unnecessary.  While  I  apprehend  fully  that  the  com- 
plainants are  not  claiming  through  or  because  of  the  neutrality  stat- 
utes, still  it  would  seem  that  there  exists  at  least  a  presumption  that 
the  United  States  have  been  careful  to  provide  in  those  statutes  for 
the  punishment  of  every  breach  of  neutrality  recognized  by  this 
country. 

But  the  nature  of  this  cause  is  such  that  none  of  the  considerations 
hereinabove  set  out  need  be  decided,  for  the  reason  that  a  view  of  this 
case  presents  itself  which  is  paramount  to  all  its  other  aspects,  and 
leads  irresistibly  to  the  conclusion  that  the  rule  nisi  must  be  de- 
nied. That  view  is  that  the  case  is  a  political  one,  of  which  a  court 
of  equity  can  take  no  cognizance,  and  which,  in  the  very  nature  of 
governmental  things,  must  belong  to  the  executive  branch  of  the  gov- 
ernment. No  precedent  or  authority  has  been  cited  to  the  court  which, 
in  its  opinion,  could  even  remotely  sustain  the  cause  of  the  complain- 
ants. No  case  has  been  cited,  nor  do  I  beheve  that  any  could  have 
been  cited,  presenting  issues  similar  to  those  of  this  cause.  The  three 
complainants  are  private  citizens.  It  is  true  that  the  complainant 
Pierce  avers  that  he  is  consul-general  of  the  Orange  Free  State;  but 
his  demand  is  exclusively  a  personal  one,  and  he  must  be  deemed  to 
be  suing  in  his  personal  capacity.    One  of  the  complainants  is  an  alien 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  925 

and  a  citizen  of  the  Orange  Free  State.  Only  one  of  the  complainants 
is  alleged  to  be  a  citizen  of  the  United  States.  They  own  property  in 
the  South  African  Republic  and  the  Orange  Free  State,  foreign  coun- 
tries now  at  war  with  Great  Britain.  They  fear  that  the  war,  if  con- 
tinued, will  result  in  the  destruction  of  their  property.  They  be- 
lieve that,  if  the  shipments  of  mules  and  horses  from  this  port  are 
stopped,  the  war  will  cease.  They  claim  that,  by  virtue  of  a  declara- 
tion of  international  law  contained  in  an  international  treaty  to  which 
the  foreign  countries  in  which  their  property  is  situated  were  not  par- 
ties, they  have  the  personal  right  to  enjoin  the  shipments  for  the  pur- 
pose of  stopping  the  war,  and  thus  saving  their  property  from  the 
destruction  which  they  apprehend  will  result  to  it  from  a  continua- 
tion of  the  war. 

When  complainants'  cause  is  thus  analyzed,  and  the  nature  of  the 
alleged  right  under  the  treaty  is  considered,  it  is  obvious  that  a  court 
of  equity  cannot  take  cognizance  of  the  cause.  The  main  case  relied 
on  by  the  counsel  for  the  complainants  is  the  case  of  Emperor  of 
Austria  v.  Day,  3  De  Gex,  F.  &  J.  217  (English  Chancery  Reports), 
in  which  the  emperor  of  Austria  sought  and  obtained  an  injunction  to 
restrain  the  manufacture  in  England  of  a  large  quantity  of  notes  pur- 
porting to  be  receivable  as  money  in,  and  to  be  guarantied  by,  Hungary. 
That  action  was  brought  by  the  emperor  of  Austria  as  the  sovereign 
and  representative  of  his  nation,  and  the  case  turned  and  was  de- 
cided on  considerations  entirely  different  from,  and  in  no  manner 
resembling,  those  presented  in  this  cause.  It  may  be  worth  noticing 
that  the  counsel  for  the  emperor  of  Austria  freely  conceded  in  the 
argument  of  the  case  that  the  exportation  of  munitions  of  war  could 
not  be  enjoined.  I  am  clearly  of  opinion  that  this  case  is  not  within 
the  cognizance  of  this  court,  and  for  that  reason  the  rule  nisi  must  be 
denied. 

BoARMAN,  District  Judge,  who  sat  in  this  cause  with  Parlance,  Dis- 
trict Judge,  concurs  in  the  opinion  • 

2  For  an  elaborate  restatement  of  the  right  of  a  neutral  to  trade  with  one 
or  other  of  the  belligerents,  see  Samuel  Pearson  v.  Allis-Ch aimers  Company, 
decided  by  the  circuit  court  of  Milwaukee  county,  Wisconsin,  in  1915.  The 
text  of  this  important  judgment  is  to  be  found  in  11  American  Journal  of 
Intel-national  Law,  88.3  (1917). 

Samuel  Pearson,  at  the  time  of  the  principal  case,  was  a  citizen  of  the  South 
African  Republic.  He  subsequently  became  a  naturalized  citizen  of  the  United 
States,  and  as  an  American  citizen,  sought  to  en.ioin  the  AUis-Ghalmers  Com- 
pany from  furnishing  and  transporting  munitions  to  the  enemies  of  Germnny 
for  the  reasons  stated  in  the  following  extract  from  his  affidavit: 

"That  the  plaintiff  is  a  citizen  of  the  United  States  of  America,  and  that  he 
has  valuable  property  interests  located  within  the  boundaries  of  the  German 
Empire;  that  ho  is  the  owner  of  securities  issued  by  the  German  Govern- 
ment ;  that  the  German  Empire  is  and  for  some  time  past  has  been  engaged 
in  war  with  the  countries  of  Great  Britain,  France,  Serbia.  Montenegro,  Russia 
and  Japan;  that  great  quantitie.s  of  ammunition  have  been  and  will  be  con- 
sumed, and  that  one  type  of  ammunition  indispensable  to  the  belligerents  is 
a  projectile  known  as  shrapnel  shell,  which  is  designed  for  but  one  pui-pose, 


926  BIGHTS  AND  DUTIES  OP  NATIONS   IN  TIME  OF  WAR         (Part  3 


SECTION  2.— RULE  OF  1756 


THE  EMANUEL. 

(High  Court  of  Admiralty,  1799.     1  C.  Rob.  296.) 

Sir  W.  ScoTT.^  This  is  the  case  of  a  ship  sailing  under  Danish 
colors,  and  taken  with  a  cargo  'of  salt,  on  a  voyage  from  Cadiz  to 
Castropel  in  Gallicia.  The  ship  has  been  restored,  reserving  the  ques- 
tion of  freight  and  expenses.  The  cargo  has  been  condemned  as  the 
property  of  the  King  of  Spain,  and  the  question  now  is,  under  these 
circumstances.  Whether  freight  and  expenses  shall  be  allowed  in 
this  case? 

I  shall,  first,  consider  this  case  upon  principle;  and  secondly,  upon 
the  foundation  of  authorities. 

First.  Where  a  capture  is  made  of  a  cargo,  the  property  of  an 

enemy,  carried  in  a  neutral  ship,  the  neutral  ship-owner  obtains  against 

the  captor  those  rights  which  he  had  against  the  enemy.     At  the  same 

time  this  principle  is  not  so  universal  as  not  to  be  liable  to  some 

exceptions;   as,  for  instance,  in  the  known  case  of  contraband  goods.* 
*     *     * 

Now  the  ground  upon  which  it  is  contended  that  the  freight  is  not 
due  to  the  proprietors  of  this  vessel,  is,  that  she  is  a  Danish  ship  em- 
ployed in  the  transmission  of  Spanish  goods,  from  one  Spanish '"port 
to  another,  and  so  carrying  on  the  coasting-trade  of  that  country. 
In  our  own  country  it  has  long  been  the  system,  that  the  coasting- 
trade  should  only  be  carried  on  by  our  own  navigation.  I  observe, 
that  in  all  the  rage  of  novel  experiment  that  has  dictated  the  commer- 
cial regulations  of  France  in  its  new  condition,  this  policy  is  held 
sacred;  it  stands  enacted,  by  a  decree  21st  September  1793,  that  no 
goods,  the  growth  or  manufacture  of  France,  shall  be  carried  from 
one  French  port  to  another  in  foreign  ships  under  pain  of  confiscation. 
The  same  policy  has  directed  the  commercial  system  of  other  European 
countries ;   in  the  ordinary  state  of  affairs,  no  indulgence  is  generally 

aud  that  is  the  destruction  of  human  life  and  property,  and  'that  the  intent  of 
the  war  now  being  conducted  by  said  aforementioned  countries  against  the 
German  Empire  is  to  so  cripple  said  empire  by  the  destruction  of  the  lives  of 
its  citizens  and  its  property,  both  public  and  private,  as  to  compel  the  sub- 
mission of  said  empire  to  the  future  disposition  of  its  national  domain  or  to 
surrender  of  its  sovereign  life  as  said  allies,  if  victorious,  may  dispose.'  "  Page 
884. 

In  an  elaborate  opinion,  Hon.  "W.  J.  Turner,  Circuit  Judge,  refused  to  issue 
the  injunction. 

8  Statement  of  facts  and  parts  of  the  opinion  are  omitted. 

4  The  Mercurius.  1  C.  Rob.  288  (1790);  The  Jonge  .Jacobus  Bauman,  1  C. 
Rob.  243  (1799) :  The  Ringende  Jacob,  1  C.  Rob.  89  (1798) ;  The  Neptunus,  8 
C.  Rob.  108  (1800). 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  927 

permitted  to  the  ships  of  most  other  countries  to  carry  on  the  coast- 
ing trade.  I  think  therefore  the  onus  probandi  does  at  least  lie  on  that 
side;  and  always  makes  it  necessary  to  be  shown  by  the  claimants, 
that  such  a  trade  was  not  a  mere  indulgence,  and  a  temporary  relaxa- 
tion of  the  coasting  system  of  the  state  in  question;  but  that  it 
was  a  common  and  ordinary  trade,  open  to  the  ships  of  any  country 
whatever. 

Applying  that  principle  to  the  present  case  (if  I  am.  right  in  the  pre- 
sumption), I  am  to  infer,  that  this  vessel  is  carrying  on  a  commerce 
which,  according  to  the  general  trading  system  of  Spain,  she  could 
not  pursue,  in  consequence  of  the  pressure  to  which  the  commerce  of 
Spain  has  been  reduced  by  the  arms  of  this  country;  if  so,  upon 
what  ground  is  it  that  she  claims  freight  against  the  captor  on  a  voy- 
age undertaken  for  the  peculiar  accommodation  and  relief  of  the 
enemy,  under  the  distress  to  which  the  successful  hostilities  of  the 
captor's  country  had  reduced  him?  Is  there  nothing  like  a  departure 
from  the  strict  duties  imposed  by  a  neutral  character  and  situation, 
in  stepping  in  to  the  aid  of  the  depressed  party,  and  taking  up  a 
commerce  which  so  peculiarly  belonged  to  himself,  and  to  extinguish 
which  was  one  of  the  principal  objects  and  proposed  fruits  of  victory? 
Is  not  this,  by  a  new  act,  and  by  an  interposition  neither  known  nor 
permitted  by  that  enemy  in  the  ordinary  state  of  his  affairs,  to  give 
a  direct  opposition  to  the  efforts  of  the  conqueror,  and  to  take  off 
that  pressure  which  it  is  the  very  purpose  of  war  to  inflict,  in  order 
to  compel  the  conquered  to  a  due  sense  and  observance  of  justice? 
Is  this  so  clearly  within  the  limits  of  impartial  and  indifferent  con- 
duct, that  if  a  neutral  ship  is  taken  in  an  office  of  this  kind,  she  is 
entitled  to  claim  against  the  captor,  whom  she  is  thus  counteracting 
and  almost  defrauding,  the  very  same  rights  which  she  possessed 
against  the  claimant,  to  whom  she  is  giving  this  extraordinary  and 
irregular  assistance?     *     *     * 

As  to  the  coasting  trade  (supposing  it  to  be  a  trade  not  usually 
opened  to  foreign  vessels),  can  there  be  described  a  more  effective  ac- 
commodation that  can  be  given  to  an  enemy  during  a  war  than  to 
undertake  it  for  him  during  his  own  disability?  Is  it  nothing  that  the 
commodities  of  an  extensive  empire  are  conveyed  from  the  parts 
where  they  grow  and  are  manufactured,  to  other  parts  where  they 
are  wanted  for  use?  It  is  said  that  this  is  not  importing  any  thing 
new  into  the  country,  and  it  certainly  is  not;  but  has  it  not  all  the 
effects  of  such  an  importation?  Suppose* that  the  French  navy 
had  a  decided  ascendant,  and  had  cut  off  all  British  communication 
between  the  northern  and  southern  parts  of  this  island,  and  that 
neutrals  interposed  to  bring  the  coals  of  the  north  for  the  supply 
of  the  manufactures,  and  for'  the  necessities  of  domestic  life,  in  this 
metropolis ;  is  it  possible  to  describe  a  more  direct  and  a  more  effectual 
opposition  to  the  success  of  French  hostility,  short  of  an  actual  mili- 


928  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   WAR         (Part  3 

tary  assistance  in  the  war  ?  What  is  the  present  case  ?  It  is  still  more 
— it  is  the  direct  conveyance  of  a  commodity  belonging  immediately  to 
the  king  of  Spain,  for  the  purpose  of  public  revenue.  The  vessel  is 
employed  not  merely  in  the  private  traffic  of  individuals,  but  in  the 
revenue  service  of  the  State.  The  king  of  Spain,  disabled  from  em- 
ploying Spanish  vessels  in  the  collection  of  his  revenues,  enlists  for- 
eign vessels  under  this  necessity.  Salt  is  a  royal  monopoly  in  Spain, 
as  it  formerly  was  in  France ;  and  it  is  distributed  on  the  government 
account  to  the  various  provinces.  This  foreign  ship  is  employed  in 
the  distribution,  and  by  the  employment  becomes  an  actual  revenue 
cutter  of  the  king  of  Spain.  It  should  seem  to  be  no  very  harsh 
treatment  of  such  a  vessel,  if,  on  the  capture,  she  is  restored,  and  is 
only  left  to  pursue  her  demand  of  freight  against  her  original  em- 
ployers 


5      4:      «      ♦ 


THE  IM  MANUEL. 

(High  Court  of  Admiralty,  1799.    2  C.  Rob.  186.) 

This  was  the  case  of  an  asserted  Hamburg  ship,  taken  14th  August, 
1799,  on  a  voyage  from  Hamburg  to  St.  Domingo,  having  in  her 
voyage  touched  at  Bordeaux,  where  she  sold  part  of  the  goods  brought 
from  Hamburg,  and  took  a  quantity  of  iron  stores  and  other  articles 
for  St.  Domingo.  A  question  was  first  raised  as  to  the  property  of 
the  ship  and  cargo ;  2dly,  supposing  it  to  be  neutral  property,  whether 
a  trade  from  the  mother  country  of  France  to  St.  Domingo,  a  French 
Colony,  was  not  an  illegal  trade,  and  such  as  would  render  the 
property  of  neutrals  engaged  in  it  liable  to  be  considered  as  the 
property  of  enemies,  and  subject  to  confiscation?  It  was  denied  that 
St.  Domingo  was  to  be  considered  in  its  present  state  as  a  French 
colony.  After  various  observations  on  these  points,  farther  proof 
was  directed  to  be  made  of  the  property;  and  permission  was  given 
to  both  parties  to  produce  information  as  to  the  state  and  condition  of 
St.  Domingo  at  that  time. 

On  the  5th  of  August,  1800,  the  cause  was  heard  on  farther  proof. 

Sir  W.  ScoTT.^  This  is  the  case  of  a  ship  taken  on  a  voyage  origin- 
ally from  Hamburg,  first  to  Bordeaux,  where  she  discharged  part  of 
her  cargo,  and,  having  taken  on  board  other  goods,  proceeded  to  the 

5  "A  neutral  ship  was  chartered  during  the  war  by  a  Russian  company,  who 
acted  in  so  doing  with  the  permission  of  the  Russian  Government,  for  the 
purpose  of  carrying  on  a  trade  which  was  closed  in  time  of  peace  to  foreign 
vessels.  Held  that  these  facts  were  sufficient  to  constitute  her  a  ship  sailing 
with  a  special  license  from  the  enemy.  Ship  and  cargo  condemned."  The 
Montara,  2  Hurst  and  Bray's  Rtisslan  and  Japanese  Prize  Cases  (1913)  403. 
headnote  (1906). 

«  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Gh.  17)         NEUTRAL  TRADE  WITH  BELLIGERENTS  929 

colony  of  St.  Domingo,  and  was  taken  in  this  period  of  the  voyage. 
*     *     * 

Upon- the  mere  question  of  property,  as  it  respects  all  the  goods  as 
well  as  the  ship,  I  see  no  reason  to  entertain  a  legal  doubt.  Consid- 
ering them  as  neutral  property,  I  shall  proceed  to  the  principal  ques- 
tion in  the  case,  namely,  whether  neutral  property,  engaged  in  a  direct 
traffic  between  the  enemy  and  his  colonies,  is  to  be  considered  by  this 
court  as  liable  to  confiscation.    And  first,  with  respect  to  the  goods. 

Upon  the  breaking  out  of  a  war,  it  is  the  right  of  neutrals  to  carry 
on  their  accustomed  trade,  with  an  exception  of  the  particular  cases 
of  a  trade  to  blockaded  places,  or  in  contraband  articles  (in  both 
which  cases  their  property  is  liable  to  be  condemned),  and  of  their 
ships  being  liable  to  visitation  and  search ;  in  which  case  however 
they  are  entitled  to  freight  and  expenses.  I  do  not  mean  to  say  that 
in  the  accidents  of  a  war  the  property  of  neutrals  may  not  be  variously 
entangled  and  endangered ;  in  the  nature  of  human  connections  it  is 
hardly  possible  that  inconveniences  of  this  kind  should  be  altogether 
avoided.  Some  neutrals  will  be  unjustly  engaged  in  covering  the  goods 
of  the  enemy,  and  others  will  be  unjustly  suspected  of  doing  it ;  these 
inconveniences  are  more  than  fully  balanced  by  the  enlargement  of 
their  commerce;  the  trade  of  the  belligerents  is  usually  interrupted  in 
a  great  degree,  and  falls  in  the  same  degree  into  the  lap  of  neutrals. 
But  without  reference  to  accidents  of  the  one  kind  or  other,  the 
general  rule  is,  that  the  neutral  has  a  right  to  carry  on,  in  time  of 
war,  his  accustomed  trade  to  the  utmost  extent  of  which  that  ac- 
customed trade  is  capable. 

Very  different  is  the  case  of  a  trade  which  the  neutral  has  never 
possessed,  which  he  holds  by  no  title  of  use  and  habit  in  times  of 
peace,  and  which,  in  fact,  can  obtain  in  war  by  no  other  title,  than 
by  the  success  of  the  one  belligerent  against  the  other,  and  at  the 
expense  of  that  very  belligerent  under  whose  success  he  sets  up  his 
title ;   and  such  I  take  to  be  the  colonial  trade,  generally  speaking. 

What  is  the  colonial  trade  generally  speaking?  It  is  a  trade  gener- 
ally shut  up  to  the  exclusive  use  of  the  mother  country,  to  which  the 
colony  belongs,  and  this  to  a  double  use — that,  of  supplying  a  market 
for  the  consumption  of  native  commodities,  and  the  other  of  furnishing 
to  the  mother  country  the  peculiar  commodities  of  the  colonial  regions ; 
to  these  two  purposes  of  the  mother  country,  the  general  policy  respect- 
ing colonies  belonging  to  the  states  of  Europe,  has  restricted  them. 
With  respect  to  other  countries,  generally  speaking,  the  colony  has  no 
existence ;  it  is  possible  that  indirectly  and  remotely  such  colonies  may 
affect  the  commerce  of  other  countries. 

The  manufactures  of  Germany  may  find  their  way  into  Jamaica  or 
Guadaloupe,  and  the  sugar  of  Jamaica  or  Guadaloupe  into  the  interior 
parts  of  Germany ;  but,  as  to  any  direct  communication  or  advantage 
Scott  Int. Law— 59 


930  RIGHTS   AND   DUTIES   OP   NATIONS   IN  TIME   OP   WAR         (Part  3 

resulting  therefrom,  Guadaloupe  and  Jamaica  are  no  more  to  Germany 
than  if  they  were  settlements  in  the  mountains  of  the  moon;  to  com- 
mercial purposes,  they  are  not  in  the  same  planet.  If  they  were  anni- 
hilated, it  would  make  no  chasm  in  the  commercial  map  of  Hamburg. 
If  Guadaloupe  could  be  sunk  in  the  sea,  by  the  effect  of  hostility,  at 
the  beginning  of  a  war,  it  would  be  a  mighty  loss  to  France,  as 
Jamaica  would  be  to  England,  if  it  could  be  made  the  subject  of  a 
similar  act  of  violence.  But  such  events  would  find  their  way  into 
the  chronicles  of  other  countries  as  events  of  disinterested  curiosity, 
and  nothing  more. 

Upon  the  interruption  of  a  war,  what  are  the  rights  of  belligerents 
and  neutrals  respectively  regarding  such  places?  It  is  an  indubitable 
right  of  the  belligerent  to  possess  himself  of  such  places,  as  of  any 
other  possession  of  his  enemy.  This  is  his  common  right,  but  he 
has  the  certain  means  of  carrying  such  a  right  into  effect,  if  he  has  a 
decided  superiority  at  sea:  Such  colonies  are  dependent  for  their 
existence,  as  colonies,  on  foreign  supplies ;  if  they  cannot  be  sup- 
plied and  defended  they  must  fall  to  the  belligerent  of  course — 
and  if  the  belligerent  chooses  to  apply  his  means  to  such  an  object, 
what  right  has  a  third  party,  perfectly  neutral,  to  step  in  and  prevent 
the  execution?  No  existing  interest  of  his  is  affected  by  it;  he  can 
have  no  right  to  apply  to  his  own  use  the  beneficial  consequences  of 
the  mere  act  of  the  belligerent;  and  say:  "True  it  is,  you  have,  by 
force  of  arms  forced  such  places  out  of  the  exclusive  possession  of 
the  enemy,  but  I  will  share  the  benefit  of  the  conquest,  and  by  sharing 
its  benefits  prevent  its  progress.  You  have  in  effect,  and  by  lawful 
means,  turned  the  enemy  out  of  the  possession  which  he  had  exclusive- 
ly maintained  against  the  whole  world,  and  with  whom  we  had  never 
presumed  to  interfere;  but  we  will  interpose  to  prevent  his  absolute 
surrender,  by  the  means  of  that  very  opening,  which  the  prevalence 
of  your  arms  alone  has  affected ;  supplies  shall  be  sent  and  their 
products  shall  be  exported ;  you  have  lawfully  destroyed  his  monopoly, 
but  you  shall  not  be  permitted  to  possess  it  yourself  ;  we  insist  to  share 
the  fruits  of  your  victories,  and  your  blood  and  treasure  have  been 
expended,  not  for  your  own  interest,  but  for  the  common  benefit  of 
others," 

Upon  these  grounds,  it  cannot  be  aontended  to  be  a  right  of  neu- 
trals, to  intrude  into  a  commerce  which  had  been  uniformly  shut 
against  them,  and  which  is  now  forced  open  merely  by  the  pressure 
of  war ;  for  when  the  enemy,  under  an  entire  inability  to  supply  his 
colonies  and  to  export  their  products,  affects  to  open  them  to  neu- 
trals, it  is  not  his  will  but  his  necessity  that  changes  his  system ;  that 
change  is  the  direct  and  unavoidable  consequence  of  the  compulsion 
of  war,  it  is  a  measure  not  of  French  councils,  but  of  British  force. 

Upon  these  and  other  grounds,  which  I  shall  not  at  present  enumer- 

SCOTT  Int.Law 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  931 

ate,  an  instruction  issued  at  an  early  period  for  the  purpose  of  pre- 
venting the  communication  of  neutrals  with  the  colonies  of  the  enemy, 
intended,  I  presume,  to  be  carried  into  effect  on  the  same  footing,  on 
which  the  prohibition  had  been  legally  enforced  in  the  war  of  1756; 
a  period  when,  Mr.  Justice  Blackstone  observes,  the  decisions  on  the 
law  of  nations  proceeding  from  the  Court  of  Appeals,  were  known 
and  revered  by  every  state  in  Europe.     *     *     * 

Upon  the  whole  view  of  the  case  as  it  concerns  the  goods  shipped 
at  Bordeaux,  I  am  of  opinion  that  they  are  liable  to  confiscation.  I 
do  not  know  that  any  decision  has  yet  been  pronounced  upon  this 
subject;  but  till  I  am  better  instructed  by  the  judgment  of  a  superior 
tribunal,  I  shall  continue  to  hold  that  I  am  not  authorized,  either  by 
general  legal  principles  applying  to  this  commerce,  or  by  the  letter 
of  the  king's  instructions,  to  restore  goods,  although  neutral  property, 
passing  in  direct  voyages  between  the  mother  country  of  the  enemy 
and  its  colonies.  I  see  no  favorable  distinction  between  an  outward 
voyage  and  a  return  voyage.  I  consider  the  intent  of  the  instruction  to 
apply  equally  to  both  communications,  though  the  return  voyage  is 
the  only  one  specifically  mentioned. 

The  only  remaining  question  respects  the  ship;  it  belongs  to  the 
same  proprietors,  and  if  the  goods  could  be  considered  as  properly 
contraband,  would  on  that  account  be  liable  to  confiscation,  for  in  the 
case  of  clear  contraband  this  is  the  clear  rule.  I  incline  to  apply  a 
more  favorable  one  in  the  present  case.  It  is  a  case  in  which  a  neutral 
might  more  easily  misapprehend  the  extent  of  his  own  rights ;  it  is  a 
case  of  less  simplicity,  and  in  which  he  acted  without  the  notice  of 
former  decisions  upon  the  subject.  The  ship  came  from  Hamburg  in 
the  commencement  of  the  voyage;  she  was  not  picked  up  for  this 
particular  occasion,  but  was  intended  to  be  employed  in  her  owner's 
general  commerce.  Attending  to  these  considerations,  I  shall  go  no 
further  than  to  pronounce  for  a  forfeiture  of  freight  and  expenses, 
with  a  restitution  of  the  vessel. 

Cargo,  taken  in  at  Bordeaux,  condemned.  Ship  restored,  without 
freight.' 

7  The  Atlas,  3  C.  Rob.  299  (ISOl),  was  an  American  ship  carrying  a  car?:o  of 
tobacco  from  America  to  Vigo,  in  Spain,  or  a  market,  consigned  to  the  master 
for  sale;  at  Vigo  it  was  sold  to  the  administration  of  the  revenue  of  tobacco, 
under  a  contract  of  the  master  to  deliver  it  at  Seville,  at  his  own  risk,  and 
there  to  receive  payment.  The  ship  was  taken  in  the  voyage  from  Vigo  to 
Seville. 

The  cargo  was  condemned  as  Spanish  property.  The  ship  was  restored,  but 
freight  v.as  refused  "as  on  a  voyage  in  the  coasting  trade  of  the  enemy." 

In  The  Rendsborg,  4  C.  Rob.  121  (1802),  Sir  WiUiara  Scott  found  that 
foreign  ships  had  beon  permitted  to  import  and  export  from  Batavia  during 
the  war  between  Great  Britain  and  Holland.  He  held  contracts  illegal  by 
which  the  trade  of  the  Dutch  East  India  Company,  in  whole  or  in  large  part, 
was  transferred  to  neutrals.     In  the  course  of  his  opinion  he  said: 

"It  is  not  the  case  of  an  individual  merchant,  nor  of  a  company  going  to 
trade  on  the  general  permission,  in  an  ordinary  character,  or  on  a  common 


932  RIGHTS  AND  DUTIES  OF  NATIONS   IN   TIME  OF   "WAR         (Part  3 


SECTION   3.— BLOCKADE* 


THE  BETSEY. 

(High  Court  of  Admiralty,  179S.  1  C.  Rob.  93.) 
This  was  a  case  of  a  ship  and  cargo,  taken  by  the  English,  at  the 
capture  of  Guadaloupe,  April  13,  1794,  and  retaken,  together  with  that 
island,  by  the  French,  in  June  following.  The  ship  was  claimed  for 
Mr.  Patterson  of  Baltimore,  and  the  cargo  as  American  property. 
The  captors,  being  served  with  a  monition  to  proceed  to  adjudication, 

footing.  It  is  a  trade  carried  on  to  an  enormous  extent.  Invested  with  partic- 
ular privileges,  secured  by  peculiar  contracts,  and  transferred  from  the  pub- 
lic company  to  vphich  it  exclusively  belonged,  to  these  individuals,  upon  an 
express  acknowledgment  understood  and  acted  upon,  on  both  sides,  that  it 
was  so  transferred,  in  order  to  relieve  the  goods  which  were  confined  there 
by  the  pressure  of  war,  and  could  not  be  delivered  by  any  other  practicable 
mode.  The  question  is.  Whether  a  commerce  formed  with  such  views,  and 
so  conducted,  can  be  entitled  to  a  neutral  character?  I  will  take  it  that  there 
is  no  difficulty  upon  the  particular  facts  of  the  adventure,  and  that  there  is 
no  objection  to  the  sufficiency  of  the  proofs  of  property.  Taking  the  goods  to 
be  the  property  of  T>e  Coninck,  is  the  commerce  neutral?  It  is  a  possible 
thing  that  the  commerce  may  not  be  neutral,  although  the  property  is;  and 
if  that  is  the  case,  the  mere  neutral  ownership  will  not  be  a  sufficient  title  to 
restitution."    Pages  123,  124. 

This  is  one  of  Sir  William  Scott's  very  elaborate  and  closely  reasoned  opin- 
ions, and  although  affirmed  on  appeal,  in  1S03,  it  has  not  had  the  good  fortune 
of  almost  all  of  his  judgments.  Thus,  in  The  Ariel,  11  Moore,  P.  C.  119,  130 
(1857),  Sir  John  Patteson  delivering  the  judgment  of  the  Privy  Council,  ques- 
tioned and  refused  to  be  bound  by  that  decision,  saying: 

"One  other  argument  was  pressed,  arising  from  the  number  of  vessels 
bought  by  the  claimant,  and  the  magnitude  of  the  transaction  was  insisted 
on :  and  the  case  of  The  Rendsborg,  4  Rob.  121  (1802) ,  was  particularly  ad- 
verted to.  That  case  was  such,  that  Loi-d  Stowell  held  it  to  amount  to  an 
adhering  to  and  assisting  the  enemy,  and  it  was  of  a  very  peculiar  character. 
Their  Lordships  are  unable  to  see  why,  if  the  transfer  of  one  ship  was  legal, 
under  the  circumstances  which  have  here  occurred,  if  it  had  stood  alone,  such 
transfer  should  be  rendered  illegal  because  six  other  ships  were  purchased, 
under  similar  circumstances,  at  the  same  time ;  unless,  indeed,  as  affording 
ground  to  believe  that  all  the  purchases  were  fraudulent  and  collusive." 

8  Regarding  Intent  coupled  with  delictum.  Chief  Justice  Marshall,  speaking 
for  the  unanimous  court  in  the  case  of  Fitzsimmons  v.  Newport  Insurance 
Company,  4  Cranch,  185,  199  (1808),  said : 

"Neither  the  law  of  nations  nor  the  treaty  admits  of  the  condemnation  of 
the  neutral  vessel,  for  the  intention  to  enter  a  blockaded  port,  unconnected 
with  any  fact.  Sailing  for  a  blockaded  port,  knowing  it  to  be  blockaded,  has 
been,  in  some  English  cases,  construed  into  an  attempt  to  enter  that  port, 
and  has,  therefore,  been  adjudged  a  breach  of  the  blockade,  from  the  depar- 
ture of  the  vessel.  Without  giving  any  opinion  on  that  point,  it  may  be  ob- 
served, that  in  such  cases,  the  fact  of  sailing  is  coupled  with  the  intention, 
and  the  sentence  of  condemnation  is  founded  on  an  actual  breach  of  blockade." 

In  the  World  War,  1914-1918,  the  belligerents  did  not  re.sort  to  blockade  in 
the  technical  sense  of  the  word,  as  in  past  wars.  Changes  in  the  method  of 
warfare  through  mines,  submarines,  and  air-craft  made  it  difficult  for  vessels 
to  maintain  position  within  the  blockaded  areas. 

By  the  British  Order  in  Council  of  March  11,  1915,  and  the  French  Decree 
of  March  13,  1915,  all  neutral  vessels  destined  to  an  enemy  port  or  neutral 


Ch.  17)  NEUTRAL   TRADE   "WITH   BELLIGERENTS  038 

appeared  under  protest,  and  the  cause  now  came  on  upon  the  question, 
Whether  the  claimants  were  entitled  to  demand  of  the  first  British 
captors,  restitution  in  value,  for  the  property  which  had  passed  from* 
them  to  the  French  recaptors?  The  first  seizure  was  defended  on  a 
suggestion  that  The  Betsey  had  broken  the  blockade  at  Guadaloupe. 

Sir  W.  Scott.*  This  is  a  case  which  it  will  be  proper  to  consider 
under  two  heads.  I  shall  first  dispose  of  the  question  of  blockade ; 
and  then  proceed  to  inquire  on  whom  the  loss  of  the  recapture  by  the 
French  ought  to  fall,  under  all  the  circumstances  of  the  case. 

On  the  question  of  blockade  three  things  must  be  proved:  1st, 
the  existence  of  an  actual  blockade ;  2dly,  the  knowledge  of  the  party ; 
and,  3dly,  some  act  of  violation,  either  by  going  in,  or  by  coming 
out  with  a  cargo  laden  after  the  commencement  of  blockade.  The 
time  of  shipment  would  on  this  last  point  be  very  material,  for  al- 
though it  might  be  hard  to  refuse  a  neutral  liberty  to  retire  with  a 
cargo  already  laden,  and  by  that  act  already  become  neutral  prop- 
erty; yet,  after  the  commencement  of  a  blockade,  a  neutral  cannot,  I 
conceive,  be  allowed  to  interpose  in  any  way  to  assist  the  exportation 
of  the  property  of  the  enemy.  After  the  commencement  of  the 
blockade,  a  neutral  is  no  longer  at  liberty  to  make  any  purchase  in 
that  port.*<> 

It  is  necessary,  however,  that  the  evidence  of  a  blockade  should  be 
clear  and  decisive;  but  in  this  case  there  is  only  an  affidavit  of  one  of 
the  captors,  and  the  account  which  is  there  given  is,  "that  on  the 
arrival  of  the  British  forces  in  the  West  Indies,  a  proclamation  issued, 
inviting  the  inhabitants  of  Martinique,  St.  Lucie,  and  Guadaloupe  to 

port  in  Elurope,  and  all  neutral  vessels  sailing  from  such  an  enemy  or  neutral 
port,  on  or  after  March  1,  1915.  could  be  stopped;  conducted  to  an  Allied  port, 
and  their  cargoes  sequestrated  or  requisitioned,  unless  they  received  a  pass 
enabling  them  to  proceed.  Both  vessels  and  cargoes  might  be  confiscated  for 
other  offenses,  but  they  were  not  confiscated  under  these  orders  or  decrees. 
The  vessels  and  cargoes,  or  proceeds  thereof,  were  to  be  returned  at  the  end 
of  the  war. 

On  the  law  as  it  stood  at  the  time,  the  belligerents  were  not  entitled  thus 
to  treat  vessels  or  cargoes  destined  to  neutral  ports,  unless  they  fell  within 
the  rule  of  continuous  voyage,  and  they  did  not  possess  the  right  thus  to  treat 
property  of  enemy  origin  exported  from  a  neutral  port,  except  by  a  rule 
which  necessity  suggested,  and  force  maintained. 

For  the  text  of  the  Order  in  Council  of  March  11,  1915,  and  of  that  of 
February  16,  1917,  in  pari  materia,  see  Appendix,  post,  pp.  1175,  1179. 

In  The  Pericles,  the  Italian  Prize  Commission  held,  in  1916,  according  to  the 
headnote  of  the  report  of  the  case,  that: 

"A  neutral  vessel  with  its  cargo  cannot  legally  be  seized  for  violation  of 
blockade  and  should  be  released,  although  it  has  passed  the  line  of  blockade 
without  having  provided  with  the  obligatory  safe-conduct,  if  it  is  proved  as  a 
fact  that  the  conditions  of  weather  and  sea,  as  well  as  damages  suffered  by 
the  ship,  that  is  to  say  cases  of  force  majeure,  have  not  permitted  it  to  stop 
in  the  port  where  it  should  have  called  to  ol)tain  the  necessary  safe-conduct." 
Paul  Fauchille,  Jurisprudence  italienne  en  matiere  de  prises  maritimes  (1918) 
152. 

9  Part  of  the  opinion  is  omitted. 

10  See  the  Vrow'  Judith,  1  C.  Rob.  152,  note  (1799). 


934  RIGHTS   AND   DUTIES   OF  NATIONS   IN  TIME   OF   WAR         (Part  3 

put  themselves  under  the  protection  of  the  English ;  that  on  a  refusal, 
hostile  operations  were  commenced  against  them  all ;"  but  it  cannot 
be  meant  that  they  began  immediately  against  all  at  once;  for  it  is 
notorious  that  they  were  directed  against  them  separately  and  in 
succession.  It  is  farther  stated,  "that  in  January,  1794  (but  without 
any  more  precise  date),  Guadaloupe  was  summoned,  and  was  then 
put  into  a  state  of  complete  investment  and  blockade." 

The  word  "complete"  is  a  word  of  great  energy ;  and  we  might  ex- 
pect from  it  to  find,  that  a  number  of  vessels  were  stationed  round 
the  entrance  of  the  port  to  cut  off  all  communication ;  but,  from  the 
protest,  I  perceive  that  the  captors  entertained  but  a  very  loose  notion 
of  the  true  nature  of  a  blockade;  for  it  is  there  stated,  "that  on 
the  1st  of  January,  after  a  general  proclamation  to  the  French  islands, 
they  were  put  into  a  state  of  complete  blockade."  It  is  a  term,  there- 
fore, which  w^s  applied  to  all  those  islands  at  the  same  time,  under 
the  first  proclamation. 

The  Lords  of  Appeal  have  determined  that  such  a  proclamation 
was  not  in  itself  sufficient  to  constitute  a  legal  blockade.  It  is  clear, 
indeed,  that  it.  could  not  in  reason  be  sufficient  to  produce  the  effect, 
which  the  captors  erroneously  ascribed  to  it ;  but  from  the  misapplica- 
tion of  these  phrases  in  one  instance,  I  learn  that  we  must  not  give  too 
much  weight  to  the  use  of  them  on  this  occasion;  and,  from  the 
generality  of  these  expressions,  I  think,  we  must  infer,  that  there  was 
not  that  actual  blockade  which  the  law  is  now  distinctly  understood  to 
require. 

But  it  is  attempted  to  raise  other  inferences  on  this  point,  from 
the  manner  in  which  the  master  speaks  of  the  difficulty  and  danger 
of  entering;  and  from  the  declaration  of  the  municipality  of  Guada- 
loupe, which  states  "the  island  to  have  been  in  a  state  of  siege."  It  is 
evident  that  the  American  master  speaks  only  of  the  difficulty  of  avoid- 
ing the  English  cruisers  generally  in  those  seas ;  and  as  to  the  other 
phrase,  it  is  a  term  of  the  new  jargon  of  France,  which  is  sometimes 
applied  to  domestic  disturbances ;  and  certainly  is  not  so  intelligible 
as  to  justify  me  in  concluding,  that  the  island  was  in  that  state  of  invest- 
ment, from  a  foreign  enemy,  which  we  require  to  constitute  blockade. 
I  cannot,  therefore,  lay  it  down,  that  a  blockade  did  exist,  till  the 
operations  of  the  forces  were  actually  directed  against  Guadaloupe  in 
April. 

It  would  be  necessary  for  me,  however,  to  go  much  farther,  and  to 
say  that  I  am  satisfied  also  that  the  parties  had  knowledge  of  it;  but 
this  is  expressly  denied  by  the  master.  He  went  in  without  obstruc- 
tion. Mr.  Incledon's  statement  of  his  belief  of  the  notoriety  of  the 
blockade  is  not  such  evidence  as  will  alone  be  sufficient  to  convince 
me  of  it.  With  respect  to  the  shipment  of  the  cargo,  it  does  not  appear 
exactly  under  what  circumstances  or  what  time  it  was  taken  in.  I 
shall  therefore  dismiss  this  part  of  the  case.     *     ♦     ♦ 


Ch.  17)         NEUTRAL  TRADE  WITH  BELLIGERENTS  935 

THE  NEPTUNUS. 

(High  Covirt  of  Admiralty,  1799.    2  C.  Rob.  110.) 

This  was  a  case  of  a  vessel  sailing  on  a  voyage  from  Dantzick  to 
Havre,  26th  October,  1798,  and  taken  in  attempting  to  enter  that  port 
on  26th  November.     *     *     * 

Sir  Wm.  Scott.  This  is  a  case  of  a  ship  and  cargo  seized  in  the  act 
of  entering  the  port  of  Havre  in  pursuance  of  the  original  intention 
under  which  the  voyage  began.  The  notification  of  the  blockade  of 
that  port  was  made  on  the  23d  February,  1798,  and  this  transaction 
happened  in  November  in  that  year.  The  effect  of  a  notification  to  any 
foreign  government  would  clearly  be  to  include  all  the  individuals  of 
that  nation;  it  would  be  the  most  nugatory  thing  in  the  world,  if  indi- 
viduals were  allowed  to  plead  their  ignorance  of  it.  It  is  the  duty  of 
foreign  governments  to  com.municate  the  information  to  their  sub- 
jects, whose  interests  they  are  bound  to  protect.  I  shall  hold,  there- 
fore, that  a  neutral  master  can  never  be  heard  to  aver  against  a 
notification  of  blockade,  that  he  is  ignorant  of  it.  If  he  is  really 
ignorant  of  it,  it  may  be  a  subject  of  representation  to  his  own  gov- 
ernment, and  may  raise  a  claim  of  compensation  from  them,  but  it 
can  be  no  plea  in  the  court  of  a  belligerent.  In  the  case  of  a  blockade 
de  facto  only,  it  may  be  otherwise,  but  this  is  the  case  of  a  blockade 
by  notification ;  another  distinction  between  a  notified  blockade  and 
a  blockade  existing  de  facto  only,  is  that  in  the  former  the  act  of 
sailing  to  a  blockaded  place  is  sufficient  to  constitute  the  offence.^^  It 
is  to  be  presumed  that  the  notification  will  be  formally  revoked,  and 
that  due  notice  will  be  given  of  it ;  till  that  is  done,  the  port  is  to  be 
considered  as  closed  up,  and  from  the  moment  of  quitting  port  to  sail 
on  such  a  destination,  the  offence  of  violating  the  blockade  is  com- 
plete, and  the  property  engaged  in  it  subject  to  confiscation.  It  may  be 
different  in  a  blockade  existing  de  facto  only;  there  no  presumption 
arises  as  to  the  continuance,  and  the  ignorance  of  the  party  may  be 
admitted  as  an  excuse  for  sailing  on  a  doubtful  and  provisional  destina- 
tion. But  this  is  a  case  of  a  vessel  from  Dantzick  after  the  notification, 
and  the  master  cannot  be  heard  to  aver  his  ignorance  of  it.  He  sails. 
Till  the  moment  of  meeting  Admiral  Duncan's  fleet,  I  should  have  no 
hesitation  in  saying,  that,  if  he  had  been  taken,  he  would  have  been 
taken  in  delicto,  and  have  subjected  his  vessel  to  confiscation ;  but  he 
meets  Admiral  Duncan's  fleet,  and  is  examined  and  liberated  by  the 
captain  of  an  English  frigate  belonging  to  that  fleet,  who  told  him  that 
he  might  proceed  on  his  destination,  and  who,  on  being  asked  whether 
Havre  was  under  a  blockade?  said,  "It  was  not  blockaded,"  and 
wished  him  a  good  voyage.     The  question  is.  In  what  light  he  is  to 

11  Provided  it  is  witli  the  intention  to  break  the  blocliade  on  getting  there. 
Medeiros  v.  Hill,  8  Bing.  231  (1832). 


936  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   WAR         (Part  3 

be  considered  after  receiving  this  information?  That  it  was  bona  fide 
given  cannot  be  doubted,  as  they  would  otherwise  have  seized  the 
vessel.  The  fleet  must  have  been  ignorant  of  the  fact ;  and  I  have 
to  lament  that  they  were  so.  When  a  blockade  is  laid  on,  it  ought  by 
some  kind  of  communication  to  be  made  known  not  only  to  foreign 
governments,  but  to  the  King's  subjects,  and  particularly  to  the  King's 
cruisers ;  not  only  to  those  stationed  at  the  blockaded  port,  but  to 
others,  and  especially  considerable  fleets,  that  are  stationed  in  itinere, 
to  such  a  port  from  the  dififerent  trading  countries  that  may  be  sup- 
posed to  have  an  intercourse  with  it. 

Perhaps  it  would  have  been  safer  in  the  English  captain  to  have 
answered,  that  he  could  not  say  anything  of  the  situation  at  Havre ; 
but  the  fact  is  (and  it  has  not  been  contradicted),  that  the  British 
officer  told  the  master  "that  Havre  was  not  blockaded."  Under  these 
circumstances,  I  think  that  after  this  information  he  is  not  taken  in 
delicto.  I  do  not  mean  to  say  that  the  fleet  could  give  the  man  any 
authority  to  go  to  a  blockaded  port.  It  is  not  set  up  as  an  authority, 
but  as  intelligence  affording  a  reasonable  ground  of  belief ;  as  it  could 
not  be  supposed,  that  such  a  fleet  as  that  was,  would  be  ignorant  of 
the  fact. 

From  that  time  I  consider  that  a  state  of  innocence  commences. 
The  man  was  not  only  in  ignorance,  but  had  received  positive  infor- 
mation that  Havre  was  not  blockaded.  Under  these  circumstances, 
I  think  it  would  be  a  little  too  hard  to  press  the  former  offence 
against  him;  it  would  be  to  press  a  pretty  strong  principle  rather  too 
strongly.  I  think  I  cannot  look  retrospectively  to  the  state  in  which 
he  stood  before  the  meeting  with  the  British  fleet,  and,  therefore,  I 
shall  direct  this  vessel  and  cargo  to  be  restored. 


THE  OCEAN. 

(High  Ck»urt  of  Admiralty.  1801.    .3  C.  Rob.  297.) 

This  was  a  question  arising  on  the  blockade  of  Amsterdam,  re- 
specting a  cargo  shipped  for  America  at  Rotterdam.  It  appeared  that 
the  persons  ordering  the  shipment  had  ordered  it  of  their  agents  at 
Amsterdam,  as  a  shipment  to  be  made  there,  subsequent  to  the  date 
of  the  blockade  of  that  place,  but  previous  to  the  blockade  of  the 
ports  of  Holland.  It  was  argued  that  in  the  intention  of  the  claim- 
ants it  was  to  be  an  exportation  actually  from  Amsterdam,  and  that  in 
effect,  the  trade  was  the  same,  as  the  goods  were  ordered  and  pur- 
chased at  Amsterdam,  and  were  to  be  considered  as  part  of  the  com- 
merce of  that  place. 

Sir  W.  Scott.  I  am  inclined  to  consider  this  matter  favourably, 
as  an  exportation  from  Rotterdam  only,  the  place  in  which  the  cargo 
becomes  first  connected  with  the  ship.    In  what  course  it  had  travelled 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  937 

before  that  time,  whether  from  Amsterdam  at  all,  and  if  from  Am- 
sterdam, whether  by  land  carriage  or  by  one  of  their  inland  navigations, 
Rotterdam  being  the  port  of  actual  shipment,  I  do  not  think  it  material 
to  inquire.  On  this  view  of  the  case  it  would  be  a  little  too  rigorous 
to  say,  that  an  order  for  a  shipment  to  be  made  at  Amsterdam  should 
be  construed  to  attach  on  the  owner,  although  not  carried  into  effect. 
It  has  been  said  from  the  letter  of  the  correspondent  at  Amsterdam, 
that  the  agents  there  had  informed  their  correspondents  in  America 
that  the  blockade  was  not  intended  to  prevent  exportation.  The 
representation  of  the  enemy  shipper  could  not  have  availed  to  exon- 
erate the  neutral  merchants,  if  otherwise  liable.  Were  this  to  be  al- 
lowed, it  would  be  in  the  power  of  the  enemy  to  put  an  end  to  the 
blockade  as  soon  as  he  pleased.  If  the  general  law  is,  that  egress  as 
well  as  ingress  is  prohibited  by  blockade,  the  neutral  merchant  is 
bound  to  know  it;  and  if  he  entertains  any. doubt,  he  must  satisfy  him- 
self by  applying  to  the  country  imposing  the  blockade,  and  not  to  the 
party  who  has  an  interest  in  breaking  it. 

It  happens  in  this  case,  that  the  intended  exportation  did  not  take 
place.  The  only  criminal  act,  if  any,  must  have  been  the  conveyance 
from  Amsterdam  to  Rotterdam.  It  would  be  a  little  too  much  to 
say,  that  by  that  previous  act,  the  goods  shipped  at  Rotterdam  are 
afifected.  The  legal  consequences  of  a  blockade  must  depend  on  the 
means  of  blockade;  and  on  the  actual  or  possible  application  of  the 
blockading  force.  On  the  land  side  Amsterdam  neither  was  nor 
could  be  affected  by  a  blockading  naval  force.  It  could  be  applied  only 
externally.  The  internal  communications  of  the  country  were  out  of 
its  reach,  and  in  no  way  subject  to  its  operation.  If  the  exportation  of 
goods  from  Rotterdam  was  at  this  time  permitted,  it  could  in  no  de- 
gree be  vitiated  by  a  previous  inland  transmission  of  them  from  the 
city  of  Amsterdam. 

Restored.*^ 

5  2  See  also  other  early  cases  before.  Sir  Wm.  Scott:  The  Stert,  4  C. 
Rob.  65  (1801) ;  The  Jonge  Pieter,  4  C.  Rob.  79  (ISOl)  ;  The  Maria,  6  C.  Rob. 
201  (1805);  The  Lisette,  6  C.  Rob.  387  (1807);  The  Julia,  1  Dod.  169,  note 
(1811). 

"In  The  Prize  Cases,  2  Black,  635,  17  L.  Ed.  459  (1862),  it  was  held  that  it 
is  a  settled  rule  that  a  ves.sel  in  a  blockaded  port  is  presumed  to  have  notice 
of  a  blockade  as  soon  as  it  commences.  See  also  The  Vrouw  Judith,  1  C. 
Rob.  150  (1799).  In  this  case  a  de  facto  blockade  may  be  broken  without  no- 
tice, by  egress.  But  persons  entering  a  place  under  de  facto  blockade  are 
entitled  to  warning. 

"The  French  rule  in  respect  of  a  violation  of  blockade  differs  essentially 
from  that  of  the  United  States  and  England.  Notwithstanding  that  a  block- 
ade has  been  publicly  proclaimed,  a  ship  sailing  for  a  blockaded  port  is  en- 
titled to  a  warning,  entered  upon  her  papers,  and  is  only  liable  to  seizure  and 
condemnation  when  slie  subsequently  attempts  to  enter  or  leave  a  blockaded 
port.  See  the  cases  of  La  Louisa,  1  Pistoye  et  Duverdy,  382  (1847);  and  The 
Elisa  Cornish,  Id.  387  (1850). 

"As  to  the  blockades  established  by  the  orders  in  council  during  the  wars 
with  Napoleon  I,  see  Edwards'  Admiralty  Reports,  381-416,  and  the  appendix 
to  that  volume.     See  also  in  the  same  volume,  pages  249-251,  and  311-320; 


938  RIGHTS  AND   DUTIES   OF   NATIONS   IN  TIME   OF   WAU         (Part  3 

THE  FORTUNA. 

(High  Court  of  Admiralty,  1803.    5  C.  Rob.  27.) 
This  was  a  case  of  a  ship  bound  ostensibly  from  Stettin  to  Bremen, 
but  seized  and  proceeded  against  for  a  violation  of  the  blockade  of 
the  Weser. 

Sir  W.  Scott.  In  this  case  it  is  admitted  that  the  master  was  ap- 
prised of  the  blockade.  The  excuse  offered  is,  that  he  had  taken  a 
pilot  on  board  to  carry  him  into  the  Eems,  but  that  owing  to  want  of 
provisions,  and  a  strong  westerly  wind,  he  was  compelled  to  m.ake  for 
the  Weser.  The  want  of  provisions  is  an  excuse  which  will  not  on 
light  grounds  be  received ;  because  an  excuse,  to  be  admissible,  must 
show  an  imperative  and  overruling  compulsion  to  enter  the  particular 
port  under  blockade,  which  can  scarcely  be  said  in  any  instance  of 
mere  want  of  provisions.  It  may  induce  the  master  to  seek  a  neigh- 
boring port,  but  it  can  hardly  ever  force  a  person  to  resort  exclusively 
to  the  blockaded  port.  What  is  stated,  respecting  the  wind  is  of  a 
different  nature.  It  is  said  "that  there  had  been  a  strong  westerly 
wind  blowing  for  nine  days  together,  which  prevented  the  master  from 
making  his  course  to  the  Eems."  This  is  a  fact  that  may  admit  of 
specific  evidence,  and,  therefore,  I  shall  admit  affidavits  to  be  offered  on 
that  point.  In  some  late  cases,  I  have  seen  enough  to  induce  me  not 
to  admit  affidavits  on  mere  matters  of  conversation,  asserted  to  have 
passed  between  the  parties  at  the  time  of  capture.  All  that  is  offered 
from  such  sources  is  generally  represented .  so  vaguely,  and  with  so 
much  fluctuation,  as  to  disable  the  court  from  extracting  any  precise 
information  from  it.  Where  a  specific  fact  is  relied  on,  which  may  be 
capable  of  proof,  it  is  a  different  thing.  Considering  the  reference 
that  has  been  made  to  the  particular  state  of  the  winds,  in  the  present 
case,  to  be  of  that  nature,  I  shall  admit  evidence  to  be  introduced  on 
this  point. 

This  ship  was  finally  restored. 


THE  HOFFNUNG. 

(High  Court  of  Admiralty,  1805.    6  C.  Rob.  112.) 

This  was  a  case  of  a  Swedish  vessel,  which  had  sailed,  the  17th  of 
July,  from  Nantes,  with  a  cargo  of  corn  or  flour  for  the  port  of  Se- 
ville, which  was  claimed  under  his  Majesty's  instructions,  1st  Febru- 
ary, 1805.     *     *     * 

Sir  W.  ScOTT.^3  There  had  been  a  very  humane  order  issued  by  the 
British  government,   in   consideration   of   the   distress   to   which   the 

Tudor,  Mercantile  Cases  (3d  Ed.)  101&-1040."    Freeman  H.  Snow's  Cases  and 
Opinions  on  International  Law,  496  (1893). 
.13  Part  of  the  opinion  is  omitted. 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  939 

kingdom  of  Spain  was  reduced  by  famine,  to  permit  cargoes  of  corn 
to  be  carried  to  that  country,  without  exception  as  to  the  property, 
but  with  a  reservation,  "that  it  should  not  be  carried  to  blockaded 
ports."  This  was,  unquestionably,  a  very  beneficent  and  liberal  re- 
laxation of  the  rights  of  war,  since  an  enemy  has  a  right  to  avail 
himself  of  the  exigency  produced  by  famine,  as  well  as  by  any  other 
distress.  There  can  be  no  doubt  that  this  relaxation  was  received  by 
Spain  with  suitable  impressions;  and  it  was  incumbent  on  the  gov- 
ernment of  that  country  to  take  care  that  their  orders  were  properly 
carried  into  effect,  and  that  they  should  not  be  abused  to  cover  fraudu- 
lent attempts  to  violate  a  blockade  that  was  imposed  on  any  of  the 
ports  of  Spain. 

It  appears  that  the  ports  of  Cadiz  and  St.  Lucar  were  put  under 
blockade  by  a  notification  of  the  25th  of  April ;  but  it  unfortunately 
happened  that  the  notification  issued  at  a  time  when  it  became  equally 
notorious  that  no  blockade  actually  existed,  since  the  British  squadron 
had  been  recently  driven  off  by  a  superior  force.  In  a  former  case,^* 
a  question  was  raised,  whether  the  notification  which  had  issued,  was 
not  still  operative,  at  least  for  the  purpose  of  sustaining  the  effect  of 
these  instructions.  But  the  court  was  of  opinion  that  it  could  not  be  so 
considered,  and  that  a  neutral  power  was  not  obliged,  under  such 
circumstances,  to  presume  the  continuance  of  a  blockade,  nor  to  act 
upon  a  supposition  that  the  blockade  would  be  resumed  by  any  other 
competent  force. 

It  was  argued  on  that  occasion,  that  neutrals  were  bound  to  act 
upon  such  presumptions,  and  on  the  same  principle  on  which  it  has 
been  held  that  when  a  blockading  squadron  is  driven  off  by  adverse 
winds  they  are  bound  to  presume  that  it  will  return,  and  that  there  is 
no  discontinuance  of  the  blockade.  But  certainly  the  two  cases  are 
very  different.  When  a  squadron  is  driven  off  by  accidents  of  weather, 
which  must  have  entered  into  the  contemplation  of  the  belligerent  im- 
posing the  blockade,  there  is  no  reason  to  suppose  that  such  a  cir- 
cumstance would  create  a  change  of  system,  since  it  could  not  be 
expected  that  any  blockade  would  continue  many  months  without  be- 
ing liable  to  such  temporary  interruptions.  But  when  a  squadron  is 
driven  oft'  by  a  superior  force,  a  new  course  of  events  arises,  which 
may  tend  to  a  very  different  disposition  of  the  blockading  force,  and 
which  introduces,  therefore,  a  very  different  train  of  presumptions  in 
favor  of  the  ordinary  freedom  of  commercial  speculations.  In  such 
a  case,  the  neutral  merchant  is  not  bound  to  foresee  or  to  conjecture 
that  the  blockade  will  be  resumed,  and,  therefore,  if  it  is  to  be  re- 
newed, it  must  proceed  de  novo,  by  the  usual  course,  and  without  ref- 
erence to  the  former  state  of  facts,  which  has  been  so  effectually  in- 
terrupted.    On  this  principle  it  was  that  the  court  held  the  former 

14  The  Christina  Margaretha,  6  C.  Rob.  62  (1805). 


940  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

blockade  to  have  become  extinct,  and  intimated  an  opinion  that  there 
should  be  a  repetition  of  the  same  measures,  on  its  recommencement, 
to  bring  it  to  the  knowledge  of  neutral  states,  either  by  public  dec- 
laration, or  by  the  notoriety  of  the  fact. 

It  is  not  now  contended  that  any  new  declaration  has  issued,  and 
the  court  has  already  determined  that  the  former  notification  had  be- 
come extinct.  It  remains,  therefore,  to  be  considered,  whether  there 
has  been  that  notoriety  of  the  fact,  from  the  operation  of  time  or  from 
other  circumstances,  which  must  be  taken  to  have  brought  the  ex- 
istence of  the  blockade  to  the  knowledge  of  the  parties. 

Among  other  modes  of  ascertaining  that  fact,  a  prevailing  con- 
sideration undoubtedly  is,  the  length  of  time,  in  proportion  to  the  dis- 
tance of  the  country  from  which  the  vessel  sails.  What  I  have  to 
lament  in  this  instance  is,  that  we  labor  under  an  ignorance  of  the 
true  terminus  a  quo,  not  having  the  necessary  information  as  to  the 
time  when  Adm.iral  Collingwood  returned  to  that  station.  Although 
something  is  to  be  collected  from  the  letters,  to  which  a  reference  has 
been  made,  they  do  not,  I  think,  supply  sufficient  information,  or  with 
such  precision  as  can  enable  me  to  found  a  judicial  sentence  upon  it. 

With  regard  to  the  ship,  I  am  bound  to  advert  to  the  situation  of 
hardship  in  which  Swedish  vessels  were  placed  by  the  embargo  which 
was  imposed  upon  them  in  the  ports  of  France.  It  was  a  material  ob- 
ject with  the  French  government,  to  have  the  ports  of  Spain  sup- 
plied with  articles  of  provision.  To  effect  this  purpose,  it  was  not 
unlikely  that  means  of  imposition  and  force  would  be  employed,  more 
especially  against  Swedish  vessels,  who  were,  in  a  particular  manner, 
inopes  concilii,  owing  to  the  cessation  of  all  diplomatic  correspondence 
between  their  own  government  and  France.  They  had  been  put  under 
an  embargo,  and  were  released,  it  appears,  for  the  purpose  of  being 
made  the  instruments  of  conveying  these  supplies  to  the  ports  of  Spain. 
It  is  natural  to  suppose,  that  any  information  that  might  have  reached 
the  government  of  France,  as  to  the  actual  state  of  the  ports  of  Spain, 
would  be  withheld  from  them.  Unless  it  is  shown,  therefore,  in  the 
clearest  manner,  that  the  knowledge  of  the  actual  blockade  of  Cadiz 
and  Saint  Lucar,  which  is  said  to  have  existed,  had  reached  the  masters 
of  these  vessels,  I  shall  think  myself  bound  to  act  towards  them  with 
great  indulgence,  and  with  due  consideration  of  the  difficulties  under 
which  they  were  placed. 

Their  case  is  very  different  from  that  of  the  proprietors  of  the 
cargo.  For  who  are  they?  The ^  Spanish  government;  who  were 
bound  to  observe  the  most  perfect  candor  and  good  faith.  They  could 
not  but  know  the  fact,  if  Cadiz  was  actually  blockaded.  It  was  their 
duty  to  have  transmitted  the  earliest  information  to  their  agents  in 
France,  and  to  have  altered  the  destination  of  their  cargoes  to  other 
ports,  to  which  they  might  go  without  infringing  the  instructions  which 
had  issued  in  their  favor.     There  is,  therefore,  a  material  distinction 


Ch.  17)         NEUTRAL  TRADE  WITH  BELLIGERENTS  941 

between  the  ship  and  the  cargo.  Unless  it  is  proved  in  the  most  un- 
equivocal manner,  that  the  master  was  affected  with  the  knowledge  of 
the  alleged  blockade,  I  shall  hold  the  vessel  to  be  exonerated.  With 
respect  to  the  cargo,  if  it  is  shown  that  the  blockade  did  exist,  and 
that  there  had  been  time  for  communication  from  Spain,  those  in- 
terests will  not  be  entitled  to  the  same  indulgence.  I  shall,  therefore, 
at  present,  make  no  other  order,  but  to  require  the  recommencement 
of  the  blockade  to  be  distinctly  ascertained,  meaning  to  apply  the  infer- 
ences that  may  arise  from  the  interval  of  time,  very  differently  to  the 
case  of  the  ship  and  of  the  cargo. 

On  a  subsequent  day,^^  this  case  came  before  the  court  again  on 
the  information  required  to  be  produced,  of  the  time  when  Lord  Col- 
lingwood  resumed  the  blockade  of  Cadiz.  No  farther  information 
was  exhibited,  but  only  the  certificate  of  the  admiralty,  stating  "that 
Lord  ColHngwood  arrived  off  Cadiz  on  the  8th  of  June."  The  cause 
was  argued  on  the  sufficiency  of  that  act,  and  the  inferences  deducible 
from  it,  whether  they  were  such  as  could  be  held  to  reestablish  the 
blockade,  so  as  to  impose  on  the  government  of  Spain  an  obligation  of 
counteracting  this  shipment,  previous  to  the  sailing  of  the  vessel. 

Sir  W.  Scott.  What  the  court  has  already  decided,  on  the  best 
consideration,  is,  that  the  raising  of  the  former  blockade,  by  a  su- 
perior force,  was  a  total  defeasance  of  that  blockade  and  its  opera- 
tions. Whether  that  is  a  sound  opinion  or  not,  must  be  left  to  the 
determination  of  the  Superior  Court.  My  persuasion  is,  that  there 
could  not  be  a  more  effectual  raising  of  the  blockade ;  and  that  it 
should  be  renewed  again  by  notification,  before  foreign  nations  could 
be  affected  with  an  obligation  of  observing  it  as  a  blockade  of  that 
species  still  existing.  Under  this  view  I  have  already  intimated  my 
opinion  that  the  mere  appearance  of  another  squadron  would  not 
restore  it,  but  that  the  same  measures  would  be  necessary  for  the 
recommencement  that  had  been  required  for  the  original  imposition  of 
the  blockade,  and  that  foreign  merchants  were  not  bound  to  act  on 
any  presumption  that  it  would  be  de  facto  resumed.     *     *     * 

Restored  on  payment  of  the  captor's  expenses. 


THE  NANCY. 
(Privy  Council,  1S09.    1  Act.  57.) 

This  was  a  leading  case  of  several  appeals  from  Vice  Admiralty 
Courts  in  America  and  the  West  Indies,  condemning  the  ships  and 
cargoes  for  a  breach  of  the  blockade  of  the  island  of  Martinique,  in 
the  year  1804. 

The  attestation  of  the  master,  who  was  the  claimant  of  tlie  vessel  for 
himself  and  other  American  citizens,  and  of  the  cargo  as  the  property 

18  July  24,  1806. 


942  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OP   WAR         (Part  3 

of  John  Juhel,  also  of  New  York,  in  America,  proved  that  he  had, 
under  charter-party,  agreed  to  sail  with  a  cargo  from  New  York 
to  the  port  of  St.  Pierre's,  in  Martinique,  unless  the  same  should  be 
blockaded,  and  to  bring  from  thence  a  return  cargo  of  the  produce  of 
the  island,  for  the  sole  account  and  risk  of  Juhel  and  other  American 
citizens.  That  in  case  the  island  should  be  blockaded  he  had  agreed 
to  proceed  to  St.  Thomas's,  from  whence  he  had  orders  to  procure  a 
return  cargo  from  the  proceeds  of  the  outward.  In  pursuance  of  this 
agreement  he  arrived  off  Martinique  on  the  29th  of  March,  and 
finding  no  ships  of  war  there,  and  not  being  given  to  understand  that 
there  existed  any  blockade  at  that  time,  he,  in  consequence  of  the 
vessel's  having  sprung  a  leak,  repaired  to  the  port  of  Trinity  in  that 
island  to  refit,  from  whence  he  s€t  sail,  and  arrived  at  that  of  St, 
Pierre's  on  the  3d  of  April.  That  while  in  the  island  he  was  informed 
the  blockade  had  been  removed,  and  the  squadron  had  gone  on  an  ex- 
pedition to  Trinidad.  No  vessel  of  war,  whatever,  had  appeared  off 
the  island  during  his  stay ;  nor  was  there  any  notice  given  of  a  block- 
ade then  existing.  Having  completed  his  cargo  on  the  15th,  he  sailed 
for  New  York^  in  which  voyage  he  was  captured  and  carried  into  Hali- 
fax, in  Nova  Scotia,  when  the  vessel  and  cargo  were  condemned  as 
prize.  This  statement  was  supported  by  the  evidence  of  a  passenger 
on  board  the  vessel,  by  some  of  the  crew,  and  by  the  tenor  of  a  cor- 
respondence between  persons  in  France,  New  York,  and  Martinique, 
which  proved  that  the  blockade  was  at  that  time  removed,  or  at  least  so 
far  relaxed  that  no  armed  vessels  had  been  seen  off  these  ports  dur- 
ing the  period  the  vessel  remained  in  the  island. 

For  the  captors  it  was  contended — that  although  the  blockading  fleet 
had  been  despatched  to  Surinam,  a  force  had  been  left  off  the  island  to 
continue  the  blockade,  and  apprize  vessels  of  its  existence.  This  ap- 
peared even  by  the  correspondence  exhibited  by  the  claimants,  one  of 
the  letters  admitting,  that  a  British  fifty  gun  ship  continued  off  the 
island,  and  was  now  and  then  seen  by  the  inhabitants. 

Judgment.  The  covirt  held  that,  to  constitute  a  blockade,  the 
intention  to  shut  up  the  port  should  not  only  be  generally  made 
known  to  vessels  navigating  the  seas  in  the  vicinity,  but  that  it 
was  the  duty  of  the  blockaders  to  maintain  such  a  force  as  would  be 
of  itself  sufficient  to  enforce  the  blockade.  This  could  only  be  effected 
by  keeping  a  number  of  vessels  on  the  different  stations,  so  communi- 
cating with  each  other  as  to  be  able  to  intercept  all  vessels  attempting  to 
enter  the  ports  of  the  island.  In  the  present  instance  no  such  measures 
had  been  resorted  to,  and  this  neglect  necessarily  led  neutral  vessels 
to  believe  these  ports  might  be  entered  without  incurring  any  risk.  The 
periodical  appearance  of  a  vessel  of  war  in  the  offing  could  not  be  sup- 
posed a  continuation  of  a  blockade,  which  the  correspondence  men- 
tioned had  described  to  have  been  previously  maintained  by  a  number 
of  vessels,  and  with  such  unparalleled   rigour,  that  no  vessel   what- 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  943 

ever  had  been  able  to  enter  the  island  during  its  continuance.  Their 
Lordships  were  therefore  pleased  to  order  that  the  ship  should  be  re- 
stored, the  proof  of  property  being  sufficient,  but  directed  further 
proof  as  to  the  cargo  claimed  for  the  American  citizens  mentioned. 


THE  JOHANNA  MARIA. 

(Privy  Council,  1855.     10  Moore,  P.  C.  70.) 

The  Rijjht  Hon.  T.  Pemberton  Lkigh.^^  This  vessel  entered  Riga 
on  the  20th  of  May,  after  all  difficulty  arising  from  the  Order  in 
Council  of  the  15th  of  April  had  been  removed.  She  came  out  again 
on  the  24th  of  May,  having  taken  on  board  a  cargo,  with  a  full  knowl- 
edge of  the  existence  of  the  blockade  at  the  time  of  loading,  and  in  the 
expectation,  as  it  is  said,  that  the  worst  that  could  happen  would  be 
that  she  would  be  sent  back  by  the  British  ships  forming  the  blockade, 
to  unload  her  cargo. 

The  only  ground  upon  which  she  could  ask  to  be  relieved  from  con- 
demnation would  be,  that  the  letter  of  Sir  Charles  Napier,  of  the  27th 
of  May,  1854  (10  Moo.  P.  C.  65),  and  the  subsequent  announce- 
ment by  the  British  government  in  the  Londpn  Gazette,  of  the  14th 
of  August,  would  be  sufficient  to  annul  all  that  has  previously  taken 
place,  and,  in  the  principles  laid  down  by  Lord  Stowell,  in  The  Rolla,  6 
Rob.  368,  to  postpone  all  penalties  for  breach  of  blockade  till  after 
the  28th  of  May. 

Their  Lordships,  however,  are  of  opinion  that  such  a  judgment 
would  carry  the  doctrine  referred  to  further  than  either  the  decision 
itself  or  sound  principle  would  warrant.  In  that  case,  Lord  Stowell 
observed  that  the  blockade  had  been  very  lax;  that  several  vessels 
had  been  permitted  by  the  blockading  squadron  to  enter,  and  the  obser- 
vations relied  on  must  be  understood  with  regard  to  the  circum- 
stances out  of  which  they  arose.  In  this  case,  from  the  5th  of  May, 
there  had.  been  an  uninterrupted  blockade ;  no  single  instance  has 
been  produced  in  which  any  vessel  had  been  permitted  by  any  of  the 
blockading  ships  to  enter  the  port;  nor  had  any  been  permitted  to 
come  out  after  the  15th  of  May,  with  cargoes  subsequently  loaded. 
There  is  clear  proof  of  a  de  facto  blockade ;  full  knowledge  of  it  by 
the  .master,  and  nothing  which  could  mislead  him  as  to  its  extent  or 
effect.  The  usual  consequences  must,  therefore,  follow,  and  the  sen- 
tence below  be  affirmed,  but  without  costs  of  the  appeal. 

By  respective  Orders  in  Council  the  sentences  in  these  cases,  as 
well  as  the  sentences  relating  to  the  condemnation  of  their  cargoes,  were 
reversed,  and  simple  restitution  decreed." 

18  The  statement  of  the  case  is  omitted. 

IT  In  addition  to  The  Kolla,  G  C.  Rob.  3G4  (1807),  the  following  cases  were 
referred  to  in  the  argument:  Tlie  Neptunus,  2  0.  Rob.  110  (1799) ;  The  Juf- 
frow  Maria  Schroeder,  3  C.  Rob.  147  (1800). 


944  EIGHTS  AND  DUTIES   OF  NATIONS   IN  TIME   OF   WAR         (Part  3 

THE  FRANCISKA. 
(Privy  Council,  1855.     10  Moore,  P.  C.  37.) 

On  the  15th  of  April,  1854,  the  commander  of  the  Baltic  fleet  block- 
aded, de  facto,  the  coast  of  Courland,  but  his  notice  to  the  British  Min- 
isters, including  the  British  Minister  at  Copenhagen,  was  of  that  char- 
acter, that  the  impression  was  that  all  the  Russian  ports  in  the  Baltic 
were  blockaded.  The  English  government  also  on  that  date  issued  an 
Order  in  Council,  giving  permission  up  to  the  15th  of  May,  for  Russian 
vessels  to  discharge  their  cargoes  from  Russian  ports  in  the  Baltic 
and  White  Sea  to  their  port  of  destination,  even  though  those  ports 
were  in  a  state  of  blockade.  A  similar  permission  was  granted  by  the 
French  government.  And  the  Russian  government  by  a  ukase  allowed 
the  same  indulgence  to  English  and  French  ships.  On  the  14th  of 
May,  1854,  a  neutral  vessel,  under  Danish  colours,  sailed  from  Copen- 
hagen for  Riga,  and  was  captured  off  Riga  by  an  English  ship  of  war 
on  the  22d  of  that  month,  for  a  breach  of  the  blockade  of  that  port. 
From  Dr.  Lushington's  decree  of  condemnation  an  appeal  was  taken 
to  the  Privy  Council.^* 

The  Right  Hon.  T.  Pbmberton  Lkich."  As  regards  export,  there- 
fore, from  the  Baltic  ports,  by  the  effect  of  these  several  ordinances 
all  restriction  up  to  the  i5th  of  May,  on  the  conveyance  of  cargoes  in 
Russian  vessels  to  British  and  French  ports,  was  removed ;  and  though 
British  and  French  vessels  would,  by  the  general  law  of  nations,  be 
liable  to  confiscation  for  breach  of  blockade,  by  sailing  from  block- 
aded ports  with  cargoes  taken  on  board  after  notice  of  the  blockade, 
and  the  permission  to  export  is,  by  the  orders,  in  terms,  confined  tp 
Russian  vessels,  it  seems  improbable  that  the  Allied  Powers  could  in- 
tend to  deprive  their  subjects  of  the  indulgence  granted  to  them  by 
the  Russian  government,  or  to  subject  their  property  to  confiscation 
for  doing  what  the  enemy  was  permitted  to  do  with  impunity. 

In  effect,  therefore,  neutrals  only  would  be  excluded  from  that  com- 
merce which  belligerents  might  safely  carry  on;  and  the  question  is; 
whether  by  the  law  of  nations  such  exclusion  be  justifiable ;  and,  if 
not,  in  what  manner  and  to  what  extent  neutral  powers  are  entitled 
to  avail  themselves  of  the  objection. 

That  such  exclusion  is  not  justifiable  is  laid  down  in  the  clearest  and 
most  forcible  language  in  the  following  passage  of  the  .judgment  now 
under  review :  "The  argument  stands  thus :  by  the  law  of  nations  a 
belligerent  shall  not  concede  to  another  belligerent,  or  take  for  himself, 
the  right  of  carrying  on  commercial  intercourse  prohibited  to  neutral 
nations ;  and,  therefore,  no-  blockade  can  be  legitimate  that  admits  to 
either  belligerent  a  freedom  of  commerce  denied  to  the  subjects  of 

18  This  statement  is  taken  from  the  head-note  of  the  case. 

18  Only  a  part  of  the  elaborate  opinion  of  this  very  learned  judge  is  given. 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  945 

States  not  engaged  in  the  war.  The  foundation  of  the  principle  is 
clear,  and  rooted  in  justice;  for  interference  with  neutral  cortimerce 
at  all  is  only  justified  by  the  right  which  war  confers  of  molesting  the 
enemy,  all  relations  of  trade  being  by  war  itself  suspended.  To  this 
principle  I  entirely  accede;  and  I  should  regret  to  think  if  any  au- 
thority could  be  cited  from  the  decisions  of  any  British  court  adminis- 
tering the  law  of  nations,  which  could  be  with  truth  asserted  to  main- 
tain a  contrary  doctrine." 

The  learned  judge,  after  discussing  the  question  how  far  licences  to 
enter  blockaded  ports  would  invalidate  a  blockade,  and  pointing  out 
the  important  distinctions  between  blockades  according  to  the  ordinary 
law  of  nations,  and  the  blockades  introduced  during  the  last  war  by 
the  Berlin  and  Milan  decrees  on  the  one  hand,  and  the  British  Orders 
in  Council  on  the  other,  and  between  special  licences  granted  for  a 
particular  occasion  and  licences  granted  indiscriminately,  proceeds,  "I 
think  that  if  the  relaxation  of  a  blockade  be,  as  to  belligerents,  entire, 
the  blockade  cannot  lawfully  subsist ;  if  it  be  partial,  and  such  as  to 
exceed  special  occasion,  that,  to  the  extent  of  such  partial  relaxation, 
neutrals  are  entitled  to  a  similar  benefit."  And  he  concludes  his  able 
discussion  of  this  part  of  the  case,  in  these  words :  "With  respect  to 
the  present  question  I,  therefore,  have  come  to  the  conclusion,  that  as 
Russian  vessels  might  have  left  the  ports  of  Courland  up  to  the  15th 
of  May,  the  subjects  of  neutral  states  ought  to  be  entitled  to  the  same 
advantages,  and  if  there  be  any  vessel  so  circumstanced  I  should  hold 
her  entitled  to  restitution.  I  think  the  remedy  should  be  commensurate 
with  the  grievance."  The  learned  judge  holds  that  such  relaxation 
does  not  affect  the  general  validity  of  the  blockade. 

In  order  to  judge  how  far  this  conclusion  can  be  maintained,  it  is 
necessary  to  consider  upon  what  principles  the  right  of  a  belligerent 
to  exclude  neutrals  from  a  blockaded  port  rests.  That  right  is  found- 
ed, not  on  any  general  unlimited  right  to  cripple  the  enemy's  com- 
merce with  neutrals  by  all  means  effectual  for  that  purpose,  for  it  is 
admitted  on  all  hands  Lliat  a  neutral  has  a  right  to  carry  on  with  each 
of  two  belligerents  during  war  all  the  trade  that  was  open  to  him  in 
times  of  peace,  subject  to  the  exceptions  of  trade  in  contraband  goods 
and  trade  with  blockaded  ports.  Both  these  exceptions  seem  founded 
on  the  same  reason,  namely,  that  a  neutral  has  no  right  to  interfere 
with  the  military  operations  of  a  belligerent  either  by  supplying  his 
enemy  with  materials  of  war,  or  by  holding  intercourse  with  a  place 
which  he  has  besieged  or  blockaded. 

Grotius  expresses  himself  upon  the  subject  in  these  terms: — "Si 
juris  mei  executionem  rerum  subvectio  impedierit,  idque  scire  potuerit, 
qui  advexit,  ut  si  oppidum  obsessum  tenebam,  si  portus  clausos,  et 
jam  deditio  aut  pax  expectabatur,  tenebitur  ille  mihi  de  damno  culpa 
dato."  De  Jure  Belli  ac  Pacis,  lib.  Ill,  c.  I,  s.  V. 
Scott  Int. Law— 00 


946  RIGHTS   AND   DUTIES   OF  NATIONS   IN  TIME   OF   WAR         (Part  3 

Bynkershoek's  commentary  on  this  passage  is  to  the  effect  that  it 
is  unlawful  to  carry  anything,  whether  contraband  or  not,  to  a  place 
thus  circumstanced,  since  those  who  are  within  may  be  compelled  to 
surrender,  not  merely  by  the  direct  application  of  force,  but  aiso  by 
the  want  of  provision^  and  other  necessaries.  "Sola  obsidio  m  causa 
est,  cur  nihil  obsessis  subvehere  liceat,  sive  contrabandum  sit,  sive  non 
sit,  nam  obsessi  non  tantum  vi  coguntur  ad  deditionem,  sed  et  fame, 
et  alia  aliarum  rerum  penuria."    Quae.  Jur.  Pub.,  lib.  I.  c.  11. 

Wheaton  in  his  Elements  of  International  Law,  Vol.  II,  p.  228-230, 
justly  observes  that  this  passage  in  Bynkershoek  goes  too  far,  and 
that  a  blockade  is  not  confined  to  the  case  where  there  is  a  siege  or 
blockade  with  a  view  to  the  capture  of  a  place  or  the  expectation  of 
peace.  But  these  passages  seem  to  point  to  the  reason  on  which  this 
interference  with  the  ordinary  rights  of  neutrals  was  originally  justi- 
fied. 

Vattel  lays  down  the  same  doctrine:  "Quand  je  tiens  une  place 
assiegee,  ou  seulement  bloquee,  je  suis  en  droit  d'empecher  que  per- 
sonne  n'y  entre,  et  de  traiter  en  ennemi  quiconque  entreprend  d'y 
entrer  sans  ma  pennission,  ou  d'y  porter  quoi  que  ce  soit;  car  il 
s'oppose  a  mon  entreprise,  il  peut  contribuer  a  la  faire  echouer,  et  par 
la  me  faire  tomber  dans  tous  les  maux  d'une  guerre  malheureuse." 
B.  Ill,  c.  VII,  s.  1,  17. 

These  passages  refer  only  to  ingress  and  the  importation  of  goods, 
but  it  is  clear  that  the  operations  of  the  siege  or  blockade  may  be 
interrupted  by  any  communication  of  the  blockaded  or  besieged  place 
with  foreigners ;  and  Lord  Stowell,  when  he  defines  a  blockade,  always 
speaks  of  it  as  the  exclusion  of  the  blockaded  place  from  all  commerce, 
whether  by  egress  or  ingress.  In  The  Frederick  Molke,  1  Rob.  87, 
he  says :  "What  is  the  object  of  a  blockade  ?  not  merely  to  prevent 
an  importation  of  supplies ;  but  to  prevent  export  as  well  as  import ; 
and  to  cut  off  all  communication  of  commerce  with  the  blockaded 
place."  In  The  Betsey,  1  Rob.  93 :  "After  the  commencement  of  a 
blockade  a  neutral  cannot,  I  conceive,  be  allowed  to  interpose  in  any 
way  to  assist  the  exportation  of  the  property  of  the  enemy."  In  the 
Vrouw  Judith,  1  Rob.  151:  "A  blockade  is  a  sort  of  circumvallation 
round  a  place  by  which  all  foreign  connection  and  correspondence  is, 
as  far  as  human  force  can  effect  it,  to  be  entirely  cut  off.  It  is  in- 
tended to  suspend  the  entire  commerce  of  that  place ;  and  a  neutral  is 
no  more  at  liberty  to  assist  the  traffic  of  exportation  than  of  importa- 
tion." In  The  Rolla,  6  Rob.  372 :  "What  is  a  blockade  but  a  uniform 
universal  exclusion  of  all  vessels  not  privileged  by  law?"  In  The 
Success,  1  Dods.  134:  "The  measure  which  has  been  resorted  to,  being 
in  the  nature  of  a  blockade,  must  operate  to  the  entire  exclusion  of 
British  as  well  as  of  neutral  ships ;  for  it  would  be  a  gross  violation  of 
neutral  rights,  to  prohibit  their  trade,  and  to  permit  the  subjects  of  this 

Scott  Int.Law 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  947 

country  to  carry  on  an  unrestricted  commerce  at  the  very  same  ports 
from  which  neutrals  are  excluded." 

It  is  contended  that  the  objection  of  a  neutral  to  the  validity  of  a 
blockade,  on  the  ground  of  its  relaxation  by-  a  belligerent  in  his  own 
favour,  is  removed  if  a  court  of  admiralty  allows  to  the  neutral  the 
same  indulgence  which  the  belligerent  has  reserved  to  himself  or 
granted  to  his  enemy.  But  their  lordships  have  great  difficulty  in 
assenting  to  this  proposition.  In  the  first  place,  the  particular  relaxa- 
tion, which  may  be  of  the  greatest  value  to  the  belligerents,  may  be  of 
little  or  no  value  to  the  neutral.  In  the  instance  now  before  the  court 
it  may  have  been  of  the  utmost  importance  to  Great  Britain  that  there 
should  be  brought  into  her  ports  cargoes  which,  at  the  institution  of 
the  blockade,  were  in  Riga ;  and  it  may  have  been  for  her  advantage, 
with  that  view,  to  relax  the  blockade.  But  a  relaxation  of  the  blockade 
to  that  extent,  and  a  permission  to  neutrals  to  bring  such  cargoes  to 
British  ports  may  have  been  of  little  or  no  value  to  neutrals. 

The  counsel  on  both  sides  at  their  Lordships'  bar  understood  that 
the  learned  judge  in  this  case  intended  thus  to  limit  the  rights  of 
neutrals,  and  to  place  neutral  vessels  only  in  the  same  situation  as 
Russians,  under  the  Order  in  Council.  Their  Lordships  would  be 
inclined  to  give  a  more  liberal  interpretation  to  the  language  of  the 
judgment;  yet  if  this  be  done,  the  allowance  of  a  general  freedom  of 
commerce,  by  way  of  export,  to  all  vessels  and  to  all  places  from  a 
blockaded  port,  seems  hardly  consistent  with  the  existence  of  any 
blockade  at  all. 

Again,  it  is  not  easy  to  answer  the  objections  a  neutral  might  make, 
that  the  condition  of  things  which  alone  authorizes  any  interference 
with  his  commerce  does  not  exist,  namely,  the  necessity  of  interdict- 
ing all  communication  by  way  of  commerce  with  the  place  in  question ; 
that  a  belligerent,  if  he  inflicts  upon  neutrals  the  inconvenience  of  ex- 
clusion from  commerce  with  such  place,  must  submit  to  the  same 
inconvenience  himself ;  and  that  if  he  is  to  be  at  liberty  to  select  par- 
ticular points  in  which  it  suits  his  purpose  that  the  blockade  should  be 
violated  with  immunity,  each  neutral,  in  order  to  be  placed  on  equal 
terms  with  the  belHgerent,  should  be  at  liberty  to  make  such  selection 
for  himself. 

But  the  ambiguity  in  which  all  these  questions  are.  left  by  the  Order 
in  Council  of  the  15th  of  April;  the  doubt  whether  the  liberty  ac- 
corded to  enemies'  vessels  extends  to  neutrals,  and,  if  so,  whether  such 
liberty  is  subject  to  the  same  restrictions,  or  to  any  other  and  what 
restrictions,  affords,  in  the  opinion  of  their  Lordships,  another  strong 
argument  against  the  legality  of  the  blockade  in  this  case.  If  a  par- 
tial, modified  blockade  is  to  be  enforced  against  neutrals,  justice  seems 
to  require  that  the  modifications  intended  to  be  introduced  should  be 
notified  to  neutral  states,  and  that  they  should  be  fully  apprized  what 
acts  their  subjects  may  or  may  not  do.     They  cannot  reasonably  be 


948  RIGHTS  AND   DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

exposed  to  the  hardship  of  either  abstaining  from  all  commerce  with  a 
place  in  such  a  state  of  uncertain  blockade,  or  of  having  their  ships 
seized  and  sent  to  the  country  of  the  belligerent,  in  order  to  learn 
there,  from  the  decision  of  its  Court  of  Admiralty,  whether  the  con- 
duct they  have  pursued  is,  or  is  not,  protected  by  an  equitable  inter- 
pretation of  an  instrument  in  which  they  are  not  expressly  included. 

If  these  views  of  the  law  be  correct,  this  ship  cannot  be  considered 
to  have  had  notice  of  any  blockade  of  Riga  at  the  time  when  she  sailed 
for  that  port;  for,  in  truth,  no  legal  blockade  was  then  in  existence, 
and  it  would  be  hard  to  require  a  neutral  to  speculate  on  the  proba- 
bility, however  great,  of  a  legal  blockade  de  facto  being  established  at 
a  future  time,  when  he  is  not  permitted  to  speculate  on  the  chance  of 
its  discontinuance  after  he  has  once  had  notice  of  its  existence.   *  *   * 

Supposing,  however,  the  blockade  in  this  case  to  be  open  to  no  ob- 
jections in  point  of  law  during  the  interval  between  the  15th  of  April 
and  the  15th  of  May,  it  remains  to  be  inquired  whether  the  notice 
which  this  ship  received  of  its  existence  was  of  such  a  character  as  to 
subject  her  to  the  penalty  of  confiscation  for  disregarding  it.  Notice 
has  been  imputed  to  the  claimant  in  the  court  below  from  the  alleged 
notoriety  of  the  blockade  on  the  14th  of  May,  at  Elsinore,  where  the 
ship  touched,  and  at  Copenhagen,  where  the  owner  resided. 

It  is  contended  by  the  appellant  that  in  a  case  of  ingress  of  a  port 
subject  to  a  blockade  only  de  facto  of  which  there  has  not  been  any 
official  notification,  guilty  knowledge  cannot  be  inferred  in  an  individ- 
ual from  general  notoriety,  and  that  a  ship  is  always  entitled  under 
such  circimistances  to  warning  from  the  blockading  squadron  before 
she  is  exposed  to  seizure. 

To  this  proposition  their  Lordships  are  unable  to  accede.  If  a  block- 
ade de  facto  b^  good  in  law  without  notification,  and  a  wilful  violation 
of  a  known  legal  blockade  be  punishable  with  confiscation — ^proposi- 
tions which  are  free  from  doubt — the  mode  in  which  the  knowledge  has 
been  acquired  by  the  offender,  if  it  be  clearly  proved  to  exist,  cannot  be 
of  importance.  Nor  does  there  seem  for  this  purpose  to  be  much  dif- 
ference between  ingress,  in  which  a  warning  is  said  to  be  indispensa- 
ble, and  egress,  in  which  it  is  admitted  to  be  unnecessary. 

The  fact  of  knowledge  is  capable  of  much  easier  proof  in  the  one 
case  than  in  the  qther;  but  when  once  the  fact  is  clearly  proved,  the 
consequences  must  be  the  same.  The  reasoning  of  the  learned  judge 
of  the  court  below  in  this  case,  and  the  language  of  Lord  Stowell  in 
The  Adelaide,  reported  in  the'note  to  The  Neptunus,  2  Rob.  Ill,  and 
The  Hurtig  Hane,  3  Rob.  324,  are  conclusive  upon  this  point. 

But  while  their  Lordships  are  quite  prepared  to  hold  that  the  exist- 
ence and  extent  of  a  blockade  may  be  so  well  and  so  generally  known, 
that  knowledge  of  it  in  an  individual  may  be  presumed  without  distinct 
proof  of  personal  knowledge,  and  that  knowledge  so  acquired  may  sup- 
ply the  place  of  a  direct  communication  from  the  blockading  squadron, 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  94& 

yet  the  fact,  with  notice  of  which  the  individual  is  so  to  be  fixed,  must 
be  one  which  admits  of  no  reasonable  doubt.  "Any  communication 
which  brings  it  to  the  knowledge  of  the  party,"  to  use  the  language  of 
Lord  Stowell  in  The  Rolla,  6  Rob.  367,  "in  a  way  which  could  leave 
no  doubt  in  his  mind  as  to  the  authenticity  of  the  information." 

Again,  the  notice  to  be  inferred  from  general  notoriety,  must  be  of 
such  a  character  that  if  conveyed  by  a  distinct  intimation  from  a  com- 
petent authority  it  would  have  been  binding.  The  notice  cannot  be 
more  effectual  because  its  existence  is  presumed,  than  it  would  be  if  it 
were  directly  established  in  evidence.  The  notice  to  be  inferred  from 
the  acts  of  a  belligerent,  which  is  to  supply  the  place  of  a  public  notifi- 
cation, or  of  a  particular  warning,  must  be  such  as,  if  given  in  the 
form  of  a  public  notification  or  of  a  particular  warning,  would  have 
been  legal  and  effectual. 

For  this  purpose  the  notice  of  the  blockade  must  not  be  more  exten- 
sive than  the  blockade  itself.  A  belligerent  cannot  be  allowed  to  pro- 
claim that  he  has  instituted  a  blockade  of  several  ports  of  the  enemy, 
when  in  truth  he  has  only  blockaded  one ;  such  a  course  would  intro- 
duce all  the  evils  of  what  is  termed  a  paper  blockade,  and  would  be 
attended  with  the  grossest  injustice  to  the  commerce  of  neutrals.  Ac- 
cordingly a  neutral  is  at  liberty  to  disregard  such  a  notice,  and  is  not 
liable  to  the  penalties  attending  a  breach  of  blockade,  for  afterwards 
attempting  to  enter  the  port  which  really  is  blockaded. 

This  was  distinctly  laid  down  by  Lord  Stowell  in  the  case  of  The 
Henrick  and  Maria,  1  Rob.  148,  where  an  officer  of  the  blockading 
squadron  had  informed  a  neutral  that  all  the  Dutch  ports  were  in  a 
state  of  blockade,  whereas  the  blockade  was  confined  to  Amsterdam. 
The  ship  was  afterwards  captured  for  an  alleged  attempt  to  enter 
Amsterdam,  and  Lord  Stowell,  in  decreeing  restitution,  observed: 
"The  notice  is,  I  think,  in  point  of  authority,  illegal ;  at  the  time  when 
it  was  given  there  was  no  blockade  which  extended  to  all  Dutch  ports. 
A  declaration  of  blockade  is  a  high  act  of  sovereignty;  and  a  com- 
mander of  a  king's  ship  is  not  to  extend  it.  The  notice  is,  also,  I 
think,  as  illegal  in  effect  as  in  authority :  it  cannot  be  said  that  such  a 
notice,  though  bad  for  other  ports,  is  good  for  Amsterdam.  It  takes 
from  the  neutral  all  power  of  election  as  to  what  other  port  of  Holland 
he  should  go,  when  he  found  the  port  of  his  destination  under  block- 
ade. A  commander  of  a  ship  must  not  reduce  a  neutral  to  this  kind 
of  distress;  and  I  am  of  opinion,  that  if  the  neutral  had  contravened 
the  notice,  he  would  not  have  been  subjept  to  condemnation." 

The  authority  of  this  case  is  fully  recognized  by  Dr.  Lushington  in 
the  present  case,  who  observes  that  such  an  administration  of  the  law, 
in  protecting  the  parry  misled,  was  most  just. 

Applying  these  principles  to  the  evidence  before  them,  their  Lord- 
ships can  have  no  doubt  that  the  master  and  owner  in  this  case  are  to 
be  fixed  with  notice  of  all  that  was  publicly  known  at  Copenhagen  on 


950  RIGHTS  AND   DUTIES   OF  NATIONS   IN  TIME   OF   WAR         (Part  3 

the  14th  of  May,  on  the  subject  of  the  blockade ;  that  it  was  known 
there  that  merchant  vessels  had  been  turned  back  from  ports  on 
the  coast  of  Courland,  and  that  a  general  impression  prevailed  that 
vessels  seeking  to  enter  Russian  ports  ran  great  risk  of  seizure;  and 
that  the  owner  in  this  case  shared  that  impression,  and  that  to  this 
cause  are  to  be  attributed  the  want  of  proper  ships'  papers,  which  has 
been  already  alluded  to,  and  the  absence,  on  the  further,  proof,  of  any 
affidavit  on  the  part  of  the  owner  denying  knowledge  of  the  blockade. 
But  it  is  contended  by  the  appellant  that  the  impression  which  thus 
prevailed  at  Copenhagen  (if,  in  fact,  there  existed  any  general  impres- 
sion) on  the  14th  of  May  was,  and  of  necessity  from  the  acts  of  the 
belligerent  powers  must  have  been,  not  that  the  ports  of  Libau, 
Windau,  and  the  gulf  of  Riga  were  blockaded  (which  they  really  were), 
but  that  all  the  Russian  ports  in  the  Baltic  were  blockaded,  which  they 
certainly  were  not ;  and  that  a  notice  to  be  gathered  from  such  errone- 
ous impressions,  was,  on  the  principles  already  referred  to,  of  no  ef- 
fe(.^  20     *     *     * 

It  is  clear,  therefore,  that  the  real  state  of  the  blockade  could  not 
have  been  known  at  Copenhagen  on  the  14th  of  May,  and  that  the  only 
notice  which  the  master  could  receive  at  that  port,  at  that  time,  would 
be,  that  he  must  not  sail  for  any  of  the  Russian  ports ;  a  notice  which, 
if  he  had  received  it  from  a  British  officer,  he  could  not,  on  the  princi- 
ples already  stated,  be  punished  for  disregarding.     *     *     * 

The  view  which  their  Lordships  have  taken  of  this  part  of  the  case 
makes  it  unnecessary  for  them  to  advert  to  the  many  other  important 
points  which  were  argued  at  their  bar.  They  must  advise  a  restitution 
of  the  ship  (or  rather  of  the  proceeds,  for  it  appears  to  have  been  sold) 
and  of  the  freight,  but  certainly  without  any  costs  or  damages  to  the 
claimant.  There  will  be  simple  restitution,  without  costs  or  expenses 
to  either  party. 


THE  GERASIMO. 

(Privy  Council,  1857.    11  Moore,  P.  C.  88.) 
See  ante,  p.  696,  for  a  report  of  the  case. 

2  0  The  learned  judge's  examination  of  the  evidence  of  knowledge  in  Copen- 
hagen of  the  blockade  in  question  is  omitted. 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  951 

THE  PANAGHIA  RHOMBA. 

(Privy  Council,  1858.    12  Moore,  P.  C.  168.) 

The  Right  Hon.  T.  Ptjmberton  Lkigh.^i  This  case  involves  a  gen- 
eral principle  of  so  much  importance  that  their  lordships  thought  it 
desirable  to  take  time  for  its  consideration,  although  they  had  a  strong 
impression  at  the  hearing  as  to  the  decision  at  which  they  must  arrive. 

The  Panaghia  Rhomba  took  in  a  cargo  of  wheat  at  Galatz,  in  the 
month  of  September,  1855,  to  be  conveyed  to  the  Piraeus  or  Syra,  on 
the  joint  account  of  Signor  Cuppa,  an  Ionian  merchant,  resident, in 
Constantinople,  and  of  Messrs.  Baltazzi,  British  merchants,  resident 
in  London. 

In  the  month  of  November  following,  the  vessel  was  captured  by 
her  Majesty's  ship  Dauntless,  for  an  attempt  to  violate  the  blockade  of 
the  port  of  Odessa,  which  had  subsisted  from  the  month  of  February, 
1855,  and  was  then  continuing. 

The  ship  has  been  condemned  by  the  court  below  upon  evidence 
which  quite  satisfies  their  Lordships  of  the  propriety  of  the  sentence ; 
and  the  question  now  raised  is,  whether  it  is  competent  to  the  claim- 
ants of  the  cargo  to  protect  their  property  from  condemnation  by 
showing  their  innocence  in  the  transaction ;  or  whether,  under  the 
circumstances  of  this  case,  the  owners  of  the  cargo  are  concluded  by 
the  illegal  act  of  the  master,  though  it  may  have  been  done  without 
their  privity,  and  even  contrary  to  their  wishes. 

It  has  been  held  by  the  court  below,  that  the  owners  are  so  con- 
cluded, and  that  the  rule  upon  the  subject  is  established  by  authority 
not  now  to  be  questioned. 

The  first  case  to  which  we  have  been  referred  is  The  Mercurius,  1 
Rob.  80,  which  came  before  Lord  Stowell  in  1798.  There  a  cargo  had 
been  put  on  board  the  Mercurius  in  America,  at  a  time  when  it  could 
not  have  been  known  in  that  country  that  a  blockade  of  the  Texel  had 
been  established.  The  master,  after  warning,  attempted  to  enter  the 
Texel.  and  the  ship  was  condemned,  because  the  owner  was  bound  by 
the  act  of  the  master;  but  the  cargo  was  restored,  because,  as  Lord 
Stowell  observes,  the  shippers  at  the  time  of  shipment  could  not  have 
known  of  the  blockade,  and  the  master,  though  he  was  the  agent  of 
owner  of  the  vessel,  and  could  bind  him  by  his  contract  or  his  mis- 
conduct, was  not  the  agent  of  the  owners  of  the  cargo,  unless  expressly 
so  constituted  by  them.  Lord  Stowell,  in  that  case,  addressed  himself 
to  the  argument  of  the  captors,  that  to  exempt  the  cargo  from  condem- 
nation would  open  a  door  to  fraud,  if  neutrals  were  allowed  to  trade 
with  blockaded  ports  with  impunity,  by  throwing  the  blame  upon  the 
carrier-master;  and,  in  answer  to  that  objection,  he  observed,  that  "if 
such  an  artifice  could  be  proved,  it  would  establish  that  mens  rea  in  tlie 

21  Facts  omitted,  as  the  .iudgrnent  sufficiently  states  the  case. 


952  RIGHTS   AND   DUTIES   OF  NATIONS   IN   TIME   OF   WAR         (Part  3 

neutraf  merchant  which  would  expose  his  property  to  confiscation,  and 
it  would  be  at  the  siame  time  sufficient  to  clause  th6  master  to  be  con- 
sidered in  the  character  of  agent,  as  well  for  the  cargo  as  for  the  ship." 

In  that  case  Lord  Stowell  seems  to  have  thought  that  the  owners 
of  the  cargo  were  not  bound  by  the  act  of  the  master  without  their 
authority,  and  the  judgment  seems  rather  to  warrant  the  marginal 
note  which  the  very  learned  reporter  has  stated  as  the  effect  of  it, 
namely,  "Violation  of  blockade  by  the  master  affects  the  ship,  but 
not  the  cargo,  unless  the  property  of  the  same  owner,  or  unless  the 
owner  is  cognizant  of  the  intended  violation." 

Now,  in  the  present  case.  Dr.  Lushington  has  stated  his  conviction 
that  the  owners  of  the  cargo  were  innocent  of  all  knowledge  of  the 
intended  violation;  and  if,  therefore,  the  law  remained  as  it  is  to  be 
collected  from  the  case  of  the  Mercurius,  1  Rob.  80,  their  Lordships 
would  have  great  difficulty  in  assenting  to  the  decision  now  under  re- 
view. 

But  the  subsequent  cases  appear  to  have  carried  the  rule  much  fur- 
ther, and  to  have  established,  that  when  the  blockade  was  known,  or 
might  have  been  known,  to  the  owners  of  the  cargo  at  the  time  when  the 
shipment  was  made,  and  they  might,  therefore^  by  possibility  be  privy 
to  an  intention  of  violating  the  blockade,  such  privity  shall  be  assumed 
as  an  irresistible  inference  of  law,  and  it  shall  not  be  competent  to 
them  to  rebut  it  by  evidence ;  that  in  cases  of  blockade,  for  the  pur- 
pose of  affecting  the  cargo  with  the  rights  of  the  belligerent,  the  master 
shall  be  treated  as  the  agent  for  the  cargo  as  well  as  for  the  ship. 
This  is  the  result  of  the  cases  cited  by  Dr.  Lushington  in  his  judgment, 
and  the  additional  authorities  mentioned  at  the  bar. 

In  the  case  of  The  Alexander,  4  Rob.  94,  which  occurred  in  1801, 
Lord  Stowell  held  that,  in  cases  of  breach  of  blockade,  the  court  must 
infer  "that  a  ship  going  in  fraudulently,  is  going  in  the  service  of  the 
cargo,  with  the  knowledge  and  by  the  direction  of  the  owner." 

In  the  case  of  The  Adonis,  5  Rob.  259,  which  occurred  in  1804,  he 
went  a  step  further,  and  held  not  only  that  such  inference  must  be 
made,  but  that  (with  the  exception  to  which  we  have  already  referred) 
the  owners  could  not  be  let  in  to  prove  a  contrary  intention.  This  case 
was  affirmed  upon  appeal,  and  it  possesses,  therefore,  all  the  authority 
which  the  decisions  of  the  tribunal  of  a  single  country  can  give  in  a 
law  in  which  all  civilized  countries  are  concerned. 

The  same  doctrine  is  laid  down  by  the  same  great  judge  in  the  case 
of  The  Exchange,  1  Edwards  Rep.  42,  in  1808,  and  in  The  James 
Cook,  1  Edwards,  261,  in  1810. 

We  find,  therefore,  a  series  of  authorities  establishing  a  general  rule, 
which,  like  all  general  rules,  may  in  its  applicartion  to  particular  cases 
be  occasionally  attended  with  hardship,  but  which,  nevertheless,  may 
be  necessary  to  prevent  fraud,  and  may,  on  the  whole,  promote  the 
purposes  of  justice.    It  is  a  rule  not  applicable  exclusively  to  neutrals. 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  953 

but  applies  with  equal  force  to  all  persons  attempting  to  violate  a 
blockade,  though  they  may  be  the  subjects  or  the  allies  of  the  country 
which  has  established  it.  In  the  present  case,  indeed,  Messrs.  Baltazzi, 
the  claimants,  are  British  subjects. 

The  propriety,  or  rather  the  necessity,  of  acting  upon  these  rules,  is 
rested  by  Lord  Stowell  on  the  notoriety  of  the  fact  that  in  almost  all 
cases  of  breach  of  blockade,  the  attempt  is  made  for  the  benefit  and 
with  the  privity  of  the  owners  of  the  cargo;  that  if  they  were  at 
liberty  to  allege  their  innocence  of  the  act  of  the  master,  it  would 
always  be  easy  to  manufacture  evidence  for  the  purpose,  which  the 
captors  would  have  no  means  of  disproving;  and  that,  in  order  to 
make  a  blockade  effectual,  it  is  essential  to  hold  the  cargo  responsible 
to  the  blockading  power  for  the  act  of  the  master,  to  whom  the  control 
over  it  has  been  entrusted,  leaving  the  owners  to  seek  their  remedy 
against  the  master  or  the  owners  of  the  ship,  if,  in  reality,  the  penalty 
was  incurred  without  any  privity  on  their  part. 

It  is  impossible  not  to  feel  the  force  of  this  reasoning;  it  rests  on 
the  same  grounds  with  another  rule  of  the  Prize  Courts,  which  treats 
as  invalid  the  sale  of  a  ship  in  transitu,  a  point  upon  which  we  have 
had  very  recently  to  examine  the  law  (in  The  Baltica,  11  Moore's  P. 
C.  Cases,  141). 

Against  a  rule,  acted  upon  and  promulgated  to  the  world  for  so  many 
years,  the  counsel  for  the  appellants,  though  challenged  to  do  so  by 
the  respondents,  have  not  produced  a  single  decision  or  dictum  by  any 
one  judge  or  jurist  in  any  part  of  the  world.  Under  these  circum- 
stances, their  Lordships  must  consider  it  as  a  settled  principle  of  prize 
law  by  which  they  are  bound. 

Holding  themselves  to  be  precluded  by  the  rule  of  law  from  looking 
into  the  evidence  in  this  case  in  order  to  judge  of  the  guilt  or  inno- 
cence of  the  claimants,  they  can  express  no  opinion  upon  this  subject. 
But  they  think  that,  as  the  learned  judge  in  the  court  below  has  de- 
clared his  conviction  of  their  entire  innocence,  and  his  reluctance  to 
pronounce  the  sentence  complained  of,  the  claimants  may  fairly  be 
considered  to  have  been  invited  to  bring  this  appeal,  and  that  in  af- 
firming the  sentence,  her  Majesty  should  be  advised  to  make  the  order 
without  awarding  costs  against  the  appellants.'^* 

-2  The  gist  of  blockado  is  to  prevent  trade  with  the  enemy.  Where  this 
feature  is  wanting,  courts  are  not  over  stringent  in  applying  the  .strict  rule 
of  condemnation.  Thus,  in  U.  S.  v.  Guillem,  11  How.  47,  13  L.  Bd.  599  (1850), 
a  Frenchman  was  permitted  to  leave  Vera  Cruz,  a  blockaded  port,  on  board 
a  French  vessel,  for  France.  Mr.  Chief  Justice  Taney,  in  a  brief  and  careful 
opinion,  made  the  following  points :  (1)  That  a  neutral  leaving  a  belligerent 
country,  in  which  he  was  domiciled  at  the  beginning  of  the  war,  is  entitled  to 
the  rights  of  a  neutral  in  his  person  and  property,  as  soon  as  he  sails  from 
the  hostile  port ;  (2)  the  property  he  takes  with  him  is  not  liable  to  con- 
demnation for  a  breach  of  blockade  by  the  vessel  in  which  he  embarks,  when 
entering  or  departing  from  the  port,  unless  he  knew  of  the  intention  of  the 
ves.sel  to  break  it  in  going  out. 

Neutral  ves.sels,  lying  in  the  enemy  harbor  at  the  outbreak  of  war,  are  logal- 


954  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

THE  WREN. 

(Supreme  Court  of  the  United  States,  1867.    6  Wall.  5S2,  18  L.  Ed.  876.) 

Appeal  from  the  District  Court  for  the  Southern  District  of  Florida, 
condemning  as  prize  of  war  The  Wren.     *     *     * 

Mr.  Justice  Nelson  delivered  the  opinion  of  the  court.^' 

The  court  below  condemned  the  vessel  on  the  ground  that  she  was 
the  property  of  the  enemies  of  the  United  States.  And  this  is  the 
only  question  in  the  case.  For,  although  it  was  insisted  on  the  argu- 
ment that  the  condemnation  might  have  been  placed  on  the  ground 
that  the  vessel  was  taken  in  contemplation  of  law  in  delicto,  for  violat- 
ing the  blockade  of  the  port  of  Galveston,  Texas,  the  position  is  found- 
ed in  a  clear  misapprehension  of  the  law.  The  doctrine  on  this  subject 
is  accurately  stated  by  Chancellor  Kent.^*  "If  a  ship,"  he  observes, 
"has  contracted  guilt  by  a  breach  of  blockade,  the  offence  is  not  dis- 
charged until  the  end  of  the  voyage.  The  penalty  never  travels  on  with 
the  vessel  further  than  to  the  end  of  the  return  voyage ;  and,  if  she  is 
taken  in  any  part  of  that  voyage,  she  is  taken  in  delicto.  This  is 
deemed  reasonable,  because  no  other  opportunity  is  afforded  to  the  bel- 
ligerent force  to  vindicate  the  law."  And  the  modern  doctrine  is  now 
well  settled,  that  the  only  penalty  annexed  to  the  breach  of  a  block- 
ade is  the  forfeiture  of  vessel  and  cargo  when  taken  in  delicto.  The 
earlier  doctrine  was  much  more  severe,  and  inflicted  imprisonment  and 
other  personal  punishment  on  the  master  and  crew. 

As  respects  the  ownership.     *     *     * 

Our  conclusion  is,  that  the  decree  below  must  be  reversed,  and 
the  vessel  restored,  but  without  costs.^® 

ly  and  innocently  there.  They  are,  therefore,  permitted  to  depart  in  peace 
before  applying  the  blockade.  "The  period,"  says  Mr.  Hall  (Int.  Law  [4th  Ed. 
1895]  73.3),  "which  is  allowed  for  the  exit  of  ships  is  usually  fixed  at  fifteen 
days,  and  during  this  time  ve-ssels  may  issue  freely  in  ballast  or  with  a  cargo 
bona  fide  bought  and  shipped  before  the  commencement  of  the  blockade.  This 
time  was  given  in  1S48  and  1864  by  Denmark ;  by  England  and  France  during 
the  Crimean  war ;  by  the  United  States  during  the  Civil  War,  and  by  France 
in  the  war  of  1870."  By  proclamation  of  .A.pril  22,  1898,  the  late  President 
McKinley  generously  doubled  this  period.  10  Richardson's  Messages  and 
Papers  of  the  Presidents,  1789-1897,  202. 

23  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 

24  1  Commentaries,  151. 

2  5  The  Olinde  Rodrigues,  174  U.  S.  510,  19  Sup.  Ct.  851,  43  L.  Ed.  1065  (1899), 
lays  down  what  may  be  considered  the  Anglo-American  practice.  The  deci- 
sion in  this  case  is  thus  summarized  in  the  headnote: 

"A  blockade  to  be  binding  must  be  known  to  exist.  There  is  no  rule  of  law 
determining  that  the  presence  of  a  particular  force  is  necessary  in  order  to 
render  a  blockade  effective,  but  on  .the  contrary,  the  test  is  whether  it  is 
practically  effective,  and  that  is  a  mixed  question,  more  of  fact  than  of  law. 

"While  it  is  not  practicable  to  define  what  degree  of  danger  shall  constitute 
a  test  of  the  efiiciency  of  a  blockade,  it  is  enough  if  the  danger  is  real  and 
apparent. 

"An  effective  blockade  is  one  which  makes  it  dangerous  for  vessels  to  at- 
tempt to  enter  the  blockaded  port;    and  the  question  of  effectiveness  is  not 


Ch.  17)         NEUTRAL  TRADE  WITH  BELLIGERENTS  955 


SECTION  4.— CONTRABAND  28 


JURGAN  V.  LOGAN. 

(Court  of  Sessions  of  Scotland,  1667.    1  Stair,  477.) 

Captain  Logan  a  Privateer  having  taken  Hans  Jurgan  Citizen  of 
Lubeck  obtained  his  Ship  and  Goods,  adjudged  Prize  by  the  Ad- 
miral, upon  this  ground  that  he  had  carried  in  Prohibit,  or  Counterband 
Goods  to  the  Danes,  being  then  the  Kings  Enemies,  viz.  Hemp  and 
Victual,  and  that  he  was  taken  in  the  return  of  that  Voyage,  which 
was  instructed  by  the  Oaths  of  the  said  Hans  and  Sailers. 

Hans  raises  a  Reduction  of  the  Admirals  Decreet  on  these  reasons : 
First,  That  the  Victual  was  no  Counterband  Goods,  but  such  Goods  as 
the  King  allowed  his  own  Subjects  to  Export  out  of  England,  and 

controlled  by  the  number  of  the  blockading  forces,  but  one  modern  cruiser 
is  enough  as  matter  of  law,  if  it  is  sufficient  in  fact  for  the  purpose,  and  ren- 
ders it  dangerous  for  other  craft  to  enter  the  port. 

"The  blockade  in  this  case  was  practically  effective,  and,  until  it  should  be 
raised  by  an  actual  driving  away  by  the  enemy,  it  was  not  open  to  a  neutral 
trader  to  ask  whether,  as  against  a  possible  superiority  of  the  enemy's  fleet, 
it  was  or  was  not  effective  in  a  military  sense." 

2  6  "There  has  been  a  recent  tendency  to  extend  widely  the  list  of  articles 
to  be  treated  as  contraband ;  and  it  is  probable  that,  if  the  belligei-ents  them- 
selves are  to  determine  at  the  beginning  of  a  war  what  shall  be  conti-aband, 
this  tendency  will  continue  until  the  list  of  contraband  is  made  to  include 
a  large  proportion  of  all  the  articles  which  are  the  subject  of  commerce,  upon 
the  ground  that  they  will  be  useful  to  the  enemy.  When  this  result  is  reached, 
especially  if  the  doctrine  of  continuous  voyages  is  applied  at  the  same  time, 
the  doctrine  that  free  ships  make  free  goods  and  the  doctrine  that  blockades 
in  order  to  be  binding  must  be  effective,  as  well  as  any  rule  giving  immunity  to 
the  property  of  belligerents  at  sea,  will  be  deprived  of  a  large  part  of  their 
effect,  and  we  shall  find  ourselves  going  backward  instead  of  forward  in  the 
effort  to  prevent  every  war  from  becoming  universally  disastrous.  The  ex- 
ception of  contraband  of  war  in  the  Declaration  of  Paris  will  be  so  expanded 
as  to  very  largely  destroy  the  effect  of  the  declaration.  On  the  other  hand, 
resistance  to  this  tendency  toward  the  expansion  of  the  list  of  contraband 
ought  not  to  be  left  to  the  neutrals  affected  by  it  at  the  very  moment  when 
war  exists,  because  that  is  the  process  by  which  neutrals  become  themselves 
involved  in  war.  You  should  do  all  in  your  power  to  bring  about  an  agree- 
ment upon  what  is  to  constitute  contraband ;  and  it  is  very  desirable  that 
the  list  should  be  limited  as  narrowly  as  possible."  Elihu  Root,  Secretary  of 
State,  to  the  American  Delegates  to  the  Hague  Conference  of  1907.  Foreign 
Relations  of  the  United  States,  1907,  pt.  2,  p.  1138. 

''The  distinction — more  specious  than  real — between  absolute  and  condi- 
tional contraband  practically  disappeared  in  the  Great  War  by  the  adoption 
of  the  practice  of  considering  goods  of  conditional  contraband  either  to  be 
subject  to  State  control  in  the  enemy  country,  or  else  bound  for  a  port  of 
naval  or  military  equipment  or  a  base  of  supply,  all  enemy  ports  being  of  this 
character."  C.  J.  Colombos,  "Cargoes  in  the  Prize  Courts  of  Great  Britain, 
France,  Italy  and  Germany,"  The  Journal  of  Comparative  T^egislation  and  In- 
ternational Lav/,  od  series,  vol.  Ill,  part  IV,  p.  2S6  (October,  1921). 


956  RIGHTS   AND   DUTIES   OP   NATIONS   IN   TIME   OF   WAR         (Part  3 

declared  that  there  should  be  no  question  thereupon,  nor  upon  any 
Goods,  not  enumerat  in  an  Act  of  Council,  produced,  all  which  are 
bellicus  Instruments  and  Furniture,  and  hath  nothing  of  Victual ;  and 
albeit  Hemp  be  Prohibit  by  that  Act,  and  commonly  counted  Counter- 
band  Goods,  yet  the  quantity  Deponed  was  only  sixteen  Stones,  which 
is  an  unconsiderable  quantity,  and  necessar  for  Calfing  the  Ship  and 
Sowing  the  Sails,  21y,  The  Pursuer  produced  the  Duke  of  York  his 
Pass,  Warranting  this  Ship  to  come  from  Bergen,  and  therefore  she 
could  not  have  been  taken  in  her  return  by  any  Privateer.  31y,  What- 
ever might  have  been  alleadged,  if  the  ship  had  been  taken,  having  un- 
iree  Goods  in  her,  there  is  neither  Law  nor  Custom  to  sease  upon  the 
Ship  in  her  return,  when  these  goods  are  not  in  her,  for  the  Ship  might 
have  been  sold  to  another,  then  he  that  did  the  wrong;  and  it  can- 
not appear  whether  the  return  was  made  out  of  the  price  of  the  former 
Fraught,  and  though  it  were,  it  might  be  of  a  hundreth  times  more 
value.  And  albeit  such  seasures  in  return  were  allowable,  yet  they 
could  only  be  sustained  when  it  is  evident,  at  the  time  of  the  Seasnre 
at  Sea,  that  the  Counterband  Goods  had  been  in  the  Ship  that  Voyage, 
either  by  Bills  of  Loading,  Charter  parties,  or  other  Writs  taken  in 
the  Ship,  or  by  the  Oaths,  or  Acknowledgements  of  the  Company,  oth- 
erwise upon  that  pretence  Freedom  of  Commerce  would  be  altogether 
stopped,  seing  every  Ship  might  be  brought  in,  that  they  may  be  tryed 
by  the  Admiral,  whether  or  not,  they  had  in  Counterband  Goods 
that  Voyage.  41y,  These  Strangers  could  not  be  in  culpa  before  the 
Indiction  of  the  War  could  come  to  their  Ears,  but  the  Indiction  of 
War,  was  by  the  Kings  manifesto  of  the  Date  the  ninteen  of  Sep- 
tember, 1666.  and  this  Ship  Loosed  from  Lubeck  the  24.  of  Sep- 
tember, within  five  days  after,  and  so  could  not  possibly  know  the 
Indiction,  and  they  Trading,  bona  fide,  as  they  were  formerly  ac- 
customed, cannot  be  seased  as  injuring  the  King,  in  assisting  his  Ene- 
mies, and  they  did,  nor  could  not  know  they  were  such.  It  was  an- 
swered for  the  Defender,  that  he  had  walked  exactly  according  to  his 
Commission,  bearing  expressly  all  kind  of  Grain  to  be  Counterband 
Goods,  and  being  impowered  to  sease  upon  any  Ship  in  return,  that 
had  carried  in  Counterband  Goods,  and  that  it  was  in  the  Kings 
power  leges  imponere  bello,  and  that  Victual  is  Counterband  Goods 
it  is  evident,  not  only  because  it  is  the  first  necessary  in  War,  es- 
pecially for  Victualling  of  Ships,  Norway  being  a  barren  Countrey 
that  hath  little  Grain  of  its  own,  and  produced  a  Treaty  betwixt  the 
King,  and  the  Crown  of  Sweden,  wherein  the  Swede  hath  a  liberty 
to  carry  Counterband  Goods ;  bearing  expressly  in  the  Latin  Annona, 
in  the  Dutch  Proviant,  which  shows,  what  Goods  are  accounted  Coun- 
terband Goods,  not  only  by  the  King,  but  other  Nations,  and  for  this 
Seasure  in  the  return,  it  is  not  only  warranted  by  the  Commission,  but 
upon  evident  Reason,  because  the  Kings  Allies  have  free  Trade,  both 
with  Him,  and  his  Enemies,  so  that  they  partake  not  with  his  Enemies 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  957 

against  Him,  by  furnishing  them  Instruments,  or  Furniture  of  War ; 
and  any  privat  Party  transgressing  the  same,  might,  de  rigore  juris, 
be  seased  upon  as  an  Enemie.  and  it  is  favour  and  benignity,  that  the 
seasure  is  allowed  only  in  that  very  Voyage,  in  which  the  wrong  is 
done.  As  to  the  Duke  of  Yorks  Passe,  Scotland  being  a  free  King- 
dom, and  the  Duke  not  Admiral  of  Scotland,  his  Passe,  or  passing 
from  any  Delinquents,  can  only  be  Operative  in  Englpind;  and  that 
which  is  produced  is  only  an  Extract  out  of  the  Admiralty  Court,  bear- 
ing that  such  a  Ship  was  Cognosced  to  be  a  Lubeck  Ship,  and  so  that 
she  might  freely  passe,  which  cannot  import  the  Dukes  knowledge, 
much  lesse  his  passing  frae  her  carrying  of  Counterband  Goods,  as  to 
the  pretence  of  Trading,  bona  fide,  and  the  ignorance  of  the  War,  no 
respect  ought  to  be  had  to  the  alleadgeance,  because  the  War  was  be- 
gun, and  flagrant  long  before  the  Lousing  of  the  Ship,  and  there  is 
no  necessity  of  Manifesto's  to  indict  War,  but  Acts  of  Hostility  and 
publick  fame  of  a  War,  are  sufficient  to  hinder  Allies  of  either  Par- 
ties, or  Neuters  to  assist  against  their  friends :  and  here  its  offered 
to  be  proven,  that  six  Moneths  before  this  Ship  Loused,  many  Com- 
missions were  granted  against  the  Danes,  Prizes  taken,  and  the  Kings 
Subjects  taken  by  the  Danes,  and  declared  Pryze  at  Bergen,  upon  the 
account  of  the  War,  which  must  be  presumed  to  be  known  by  the 
Pursuer:  and  the  City  of  Lubeck  being  a  Hanse  Town  of  Trade, 
which  keeps  Intercourse  with  London,  and  other  Towns  of  Trade : 
and  as  to  the  Act  of  Council,  permitting  the  Kings  subjects  to  Trade, 
even  in  Com  with  his  Enemies,  it  is  a  special  Indulgence  in  Favours 
of  England  only,  and  could  not  be  effectual  as  to  Scotland,  and  much 
lesse  to  Strangers. 

The  Pursuer  answered,  that  there  Was  nothing  alleadged  to  show  by 
Law  or  custom,  that  Victual  is  Counterband  Goods,  unlesse  it  were 
carried  in  to  an  Enemy  for  Relieving  a  Besieged  place,  but  not  when 
it  is  but  in  common  Commerce,  and  if  the  Lubeckers  be  hindered  to 
Trade  in  Corn,  or  the  like,  being  the  only  Growth  of  their  Country, 
their  Trade  is  altogether  marred,  contrary  to  the  Kings  Interest  and 
Intention,  who  has  written  to  the  Emperour  most  favorably  in  behalf 
of  the  Hanse  Towns,  for  the  freedom  of  their  Trade,  and  acknowledges 
them  his  good  Allies,  and  not  meerly  Neuters,  which  Letter  is  pro- 
duced, neither  is  the  palpable  inconvenience  answered,  if  Privatteers 
may  bring  in  all  the  Ships,  whether  they  carried  Counterband  Goods 
in  that  Voyage,  though  they  find  none  in  them,  neither  is  there  any- 
thing alleadged  sufficient  to  instruct,  that  the  Pursuers  knew,  or  were 
obliged  to  know  of  the  War  betwixt  the  King  and  Denmark,  before 
they  Loused  from  Lubeck  for  any  Acts  of  Hostility,  before  the  solemn 
Indiction  produced,  were  such  Deeds  as  the  Pursuers  were  not  obliged 
to  notice,  for  the  taking  and  declaring  of  Prizes  doth  not  "include 
Enimity  or  War,  but  may  be  for  reparation  of  privat  injuries  with- 
out intention  to  make  an  open  War,  although  a  Pryze  of  the  King  of 


958  RIGHTS   AND   DUTIES   OP   NATIONS   IN   TIME   OF   WAR         (Part  3 

Britains  Subjects  had  been  declared  at  Buirran,  it  does  not  infer, 
that  Lubeck  being  a  free  State,  at  so  far  distance,  behoved  to  know 
the  same ;  much  lesse,  that  thereby  there  was  a  War  betwixt  the  King 
and  Denmark. 

The  Lords  having  considered  the  whole  Debate,  were  of  different 
opinions,  whether  the  Victual  could  be  called  Counterband  Goods 
simply,  or  only  when  imported  for  relieving  of  Sieges,  or  for  the  like 
War-like  use,  and  whether  Ships  could  be  seised  in  their  return,  not 
having  actually  Counterband  Goods  in,  but  especially  whether  they 
could  be  seised  without  evidence  at  the  time  of  the  seisure  at  Sea,  that 
in  that  Voyage  they  had  in  Counterband  Goods,  but  they  did  only  De- 
termine the  first  Reason,  and  found  it  relevant,  to  infer  that  the 
Lubeckers  was  in  bona  fide  to  continue  the  Commerce,  having  Loused 
within  so  few  days  of  the  Kings  Manifesto;  and  that  no  other  Act 
of  Hostility  before,  were  to  be  presumed  to  have  come  to  the  knowl- 
edge of  Lubeck,  or  that  thereby  they  were  obliged  to  know,  that  there 
was  an  actual  War,  unless  these  Strangers'  knowledge  were  instruct- 
ed by  their  own  Oaths,  or  that  it  was  the  common  Fame  notour  at 
Lubeck  before  they  Loused,  that  there  was  War  betwixt  the  King 
and  Denmark,  and  the  Defenders  offering  to  prove  the  same. 

The  Lords  granted  Commission  to  the  Kings  Resident  at  Hamburg 
to  receive  Witnesses  above  exception,  and  in  the  mean  time,  ordains  the 
Strangers  Ship  and  Goods  to  be  inventared,  and  Estimate,  and  de- 
livered again  to  the  Strangers.  Upon  Caution  to  make  the  same  or 
price  forthcoming,  in  case  the  Defender  prov'd,  and  prevail'd,  and  with 
the  burden  of  the  Strangers  damnage  and  expences,  if  they  betook 
themselves  to  this  manner  of  Probation,  and  not  to  the  Oaths  of  the 
Strangers  who  were  present,  reserving  to  the  Lords  the  remanent 
Points  to  be  Decided,  if  the  Strangers  knowledge  of  the  War  were 
known. 

In  this  Processe  the  Lords  found  also  that  competent,  and  emitted 
before  the  Admiral,  could  not  operat  against  thir  Strangers,  qui  utun- 
tur  communi  jure  gentium. 


THE  HAABET." 

(High  Court  of  Admiralty,  ISOO.    2  C.  Rob.  174.) 

Sir  W.  Scott. '^^  This  is  a  question  on  a  report  of  the  registrar  and 
merchants  respecting  an  allowance  of  insurance  on  a  cargo  of  corn, 
seized  and  brought  into  this  country.  The  cargo  was  decreed  to  be 
restored,  and  the  registrar  and  merchants  were  directed  to  make  a  re- 
port on  the  value  due  to  the  claimant;  such  reports  are  in  their  na- 
ture partly  legal  and  partly  mercantile.     It  is  a  report  proceeding 

2  7AfRi-med  on  appeal  August  10,  1803. 

28  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  959 

from  persons  qualified,  in  both  these  respects,  to  form  a  sound  judg- 
ment on  the  subject  before  them;  one  of  them  being,  from  his  con- 
nection with  courts  of  justice,  supposed  capable  of  forming  his  own 
opinion,  and  of  assisting  his  associates  on  all  questions  of  law,  in  the 
first  instance  subject  to  the  inspection  and  correction  of  the  court, 
whilst  the  other  part  of  this  domestic  forum,  as  I  may  call  it,  consists 
of  persons  acquainted  with  trade,  and  exercising  their  judgment  on 
matters  relative  to  commerce.  It  is  from  the  report  of  a  commission  so 
constituted,  that  the  question  is  now  brought  before  the  court  on  a 
subject  partly  legal  and  partly  mercantile.     *     *     * 

The  question  is.  Whether  there  is  any  reasonable  ground  for  me  to 
pronounce  that  the  registrar  and  merchants  have  disallowed  a  just 
demand,  in  disallowing  a  charge  of  insurance  which  had  not  been  made. 
It  has  been  argued  that  this  charge  ought  to  have  been  allowed,  because 
it  is  usually  so  allowed  in  the  dealings  of  merchants  with  each  other. 
I  am  not  clear  that  this  is  a  necessary  consequence,  for  it  is  surely  no 
certain  rule  that  in  all  cases  where  a  cargo  is  taken  jure  belli  but  for 
the  mere  purpose  of  preemption,  that  it  is  to  receive  a  price  calculated 
exactly  in  the  same  manner,  and  amounting  precisely  to  the  same  val- 
ue, as  it  would  have  done,  if  it  had  arrived  at  its  port  of  destination  in 
the  ordinary  course  of  trade. 

The  right  of  taking  possession  of  cargoes  of  this  description,  "com- 
meatus,"  or  provisions,  going  to  the  enemy's  ports,  is  no  peculiar  claim 
of  this  country;  it  belongs  generally  to  belligerent  nations.  The  an- 
cient practice  of  Europe,  or  at  least  of  several  maritime  states  of  Eu- 
rope, was  to  confiscate  them  entirely;  a  century  has  not  elapsed  since 
this  claim  has  been  asserted  by  some  of  them.  A  more  mitigated  prac- 
tice has  prevailed  in  later  times,  of  holding  such  cargoes  subject  only  to 
a  right  of  preemption,  that  is,  to  a  right  of  purchase  upon  a  reasonable 
compensation,  to  the  individual  whose  property  is  thus  diverted.  I 
have  never  understood  that,  on  the  side  of  the  belligerent,  this  claim 
goes  beyond  the  case  of  cargoes  avowedly  bound  to  the  enemy's  ports, 
or  suspected,  on  just  grounds,  to  have  a  concealed  destination  of  that 
kind ;  or  that,  on  the  side  of  the  neutral,  the  same  exact  compensation 
is  to  be  expected  which  he  might  have  demanded  from  the  enemy  in 
his  own  port.  The  enemy  may  be  distressed  by  famine,  and  may  be 
driven,  by  his  necessities,  to  pay  a  famine  price  for  the  commodity  if 
it  gets  there ;  it  does  not  follow  that  acting  upon  my  rights  of  war  in 
intercepting  such  supplies,  I  am  under  the  obligation  of  paying  that 
price  of  distress.  It  is  a  mitigated  exercise  of  war  on  which  my  pur- 
chase is  made,  and  no  rule  has  established,  that  such  a  purchase  shall 
be  regulated  exactly  upon  the  same  tenns  of  profit  which  would  have 
followed  the  adventure,  if  no  such  exercise  of  war  had  intervened ; 
it  is  a  reasonable  indemnification  and  a  fair  profit  on  the  commodity 
that  is  due,  reference  being  had  to  the  original  price  actually  paid  by 
the  exporter,  and  the  expenses  which  he  has  incurred.    As  to  what  is  to 


960  RIGHTS  AND  DUTIES   OF  NATIONS  IN  TIME  OF   WAR         (Part  3 

be  deemed  a  reasonable  indemnification  and  profit,  I  hope  and  trust 
that  this  country  will  never  be  found  backward  in  giving  a  liberal 
interpretation  to  these  terms.  But  certainly  the  capturing  nation  does 
not  always  take  these  cargoes  on  the  same  terms  on  which  an  enemy 
would  be  content  to  purchase  them ;  much  less  are  cases  of  this  kind  to 
be  considered  as  cases  of  costs  and  damages,  in  which  all  loss  of  pos- 
sible profit  is  to  be  laid  upon  unjust  captors,  for  these  are  not  unjust 
captures,  but  authorized  exercises  of  the  rights  of  war. 

Two  or  three  considerations  have  been  urged,  which  may,  with  all 
propriety,  be  dismissed.  One  is,  that  it  was  understood  between  the 
King's  government  and  the  parties,  that  this  charge  should  be  allowed. 
Certainly  if  it  were  made  out  by  any  credible  proof,  that  the  faith  of 
government  had  been  in  the  slightest  manner  pledged  to  such  an  under- 
standing, there  is  no  principle  which  this  court  would  hold  more  sacred, 
than  that  the  faith  of  government  should  be  held  inviolate  in  transac- 
tions of  this  kind ;  but  no  sort  of  proof  is  offered  of  this,  and  the  fact 
has  in  no  way  come  to  my  knowledge.  It  is  said,  likewise,  that  in  the 
cases  of  this  kind  which  occurred  last  war,  and  which  were  then 
settled  by  the  navy  board,  the  charge  of  insurance  was  allowed,  but 
the  policy  of  insurance  was  never  called  for.  How  this  practice  came 
to  prevail  there,  whether  under  a  notion  that  the  insurances  had  been 
really  made  whenever  they  were  charged,  whether  under  any  order  of 
government,  or  how  otherwise,  I  am  not  informed.  The  persons  who 
had  to  settle  those  accounts  were  not  mercantile  men,  and  might  be 
led  by  the  charge  to  suppose  that  it  had  actually  been  incurred.  Un- 
der whatever  circumstances  such  a  practice  grew  up,  if  it  did  obtain, 
it  is  no  binding  rule  upon  the  registrar  and  merchants  here.  It  might 
be  simple  mistake,  and  at  best,  it  is  no  deciding  authority. 

I  have  already  said  that  the  expected  payment  at  the  port  of  delivery, 
is  not  the  necessary  measure  of  compensation  at  the  port  of  the  bellig- 
erent. It  is  not  so  with  reference  to  any  constituent  of  price.  With 
respect  to  insurance  considered  as  such,  it  would  be  peculiarly  improp- 
er. It  is  reasonably  to  be  charged  at  the  port  of  delivery,  although  it 
has  never  been  paid,  because  the  merchant  has  stood  his  own  risk,  and 
has  purchased  the  insurance  at  the  expense  of  his  own  danger.  But  is 
that  the  case  where  the  voyage  has  been  interrupted  almost  in  its  com- 
mencement, where  the  cargo  has  been  carried  into  a  neighboriTig  port? 
In  the  present  case,  the  voyage  was  from  Altona  to  Cadiz,  from  the 
north  to  the  south  of  Europe,  and  the  cargo  is  seized  upon  its  entrance 
into  the  British  Channel  very  soon  after  quitting  its  port.  Most  of 
the  cargoes  taken  have  a  similar  destination,  and  are  taken  under  sim- 
ilar circumstances.  What  pretence  is  there  to  say  that  all  risks  of  the 
voyage  have  been  incurred?  The  utmost  that  could  be  claimed  is  an 
insurance  pro  rata  itineris  peracti,  amounting  to  a  very  small  propor- 
tion of  the  whole,  hardly  deserving  a  particular  consideration.  As  to 
what  is  said,  that  in  the  case  of  capture  of  ships,  you  allow  the  full 


Ch.  IT)  NEUTRAL  TRADE  WITH  BELLIGERENTS  961 

freight  of  the  whole  voyage;  that  allowance  is  made  on  another  ac- 
count ;  you  take  the  ship  in  that  case  on  account,  not  of  itself,  but  of  its 
cargo.  You  interrupt  its  occupation  which  was  legal  and  innocent,  and 
it  is  therefore  not  unjust  to  allow  it  the  benefit  of  its  original  contract,, 
which  you  alone  have  prevented  from  being  carried  into  execution. 
Very  different  is  the  consideration  of  risk  respecting  a.  cargo  which 
has  never  been  incurred,  and  of  a  payment  which  is  due  only  on  the 
event  of  that  risk  having  been  actually  incurred,  no  contract  subsisting, 
and  the  cargo  being,  in  its  own  nature,  liable  to  this  species  of  inter- 
ception. 

Upon  the  whole,  I  see  no  sufficient  reason  to  pronounce  that  the 
registrar  and  merchants  have  adopted  a  wrong  measure  of  value  in 
disallowing  the  charge  of  insurance.  They  have  allowed  what,  upon 
their  own  experience,  they  pronounce  to  be  a  reasonable  indemnification 
and  profit,  and  I  do  not  understand  that  the  sufficiency  of  this  indem- 
nification and  profit  is  impeached,  on  any  other  ground,  than  that  an 
insurance  would  have  been  added  in  the  ordinary  course  of  a  mercantile 
account,  if  the  cargo  had  reached  its  intended  destination.  Being  of 
opinion  that  the  ordinary  terms  of  a  mercantile  account,  to  be  settled 
on  the  completion  of  the  voyage,  do  not  furnish,  (all  circumstances  be- 
ing duly  weighed,)  the  necessary  or  just  measure  of  value  to  be  applied 
in  transactions  of  this  kind,  I  do  not  find  myself  enabled  to  sustain  the 
objection.  If,  as  it  has  been  repeatedly  urged,  an  understanding  to  a 
different  effect  has  subsisted  between  the  king's  government  and  the 
parties,  there  can  be  no  doubt  that  on  their  resort  to  a  superior  tribunal, 
better  acquainted  with  any  communications  that  may  have  passed  upon 
the  subject,  they  will  have  the  full  benefit  of  any  such  engagement. 

Report  confirmed.^® 

2  9  "In  strictness,"  says  Hall  (Int.  Law,  690,  691  [4th  Ed.,  1895]),  "every 
article  which  is  either  necessarily  contraband,  or  which  has  become  so  from 
the  special  circumstances  of  the  war,  is  liable  to  confiscation ;  but  it  is  usual 
for  those  nations  who  vary  their  list  of  contraband,  to  subject  the  latter  class 
to  pre-emption  only,  which  by  the  English  practice  means  piu'chase  of  the 
merchandise  at  its  mercantile  value,  together  with  a  reasonable  profit  usually 
calculated  at  ten  per  cent  on  the  amount.  This  mitigation  of  extreme  bellig- 
erent privilege  is  also  introduced  in  the  case  of  products  native  to  the  ex- 
porting country,  even  when  they  are  affected  by  an  inseparable  taint  of  con- 
traband." 

Scott  Int.Law— dl 


962  RIGHTS  AND   DUTIES   OF   NATIONS   IN  TIME   OF   WAR         (Part  3 

In  re  Arbitration  Between  OSAKA  S  HO  SEN  KAISHA  and 

Owners  of  Steamship  PROMETHEUS. 
(Supreme  Court  of  Hongkong,  1906.    2  Hongkong  Law  Reports,  207.) 

TpiS  Chiei^  Justice;.  This  is  a  special  case  stated  for  the  opinion 
of  this  court  by  the  arbitrator  acting  under  a  submission  to  arbitration 
contained  in  a  certain  charter  party  made  at  Hongkong  on  the  10th  of 
February,  1904,  between  Messrs.  Sander,  Wieler  &  Co.,  "agents  for  the 
steamship  Prometheus,  under  Norwegian  colours,"  on  the  one  part, 
and  "the  Osaka  Shosen  Kaisha,  Osaka,  by  their  Hongkong  Office, 
Charterers"  on  the  other  part,  by  which  that  ship  was  chartered  to  the 
Osaka  Shosen  Kaisha  for  six  months  subject  to,  inter  alia,  a  special 
stipulation  that  she  was  not  to  carry  any  contraband  of  war.     *     *     * 

The  charter  party  was  signed  at  Hongkong  on  the  10th  of  February, 
1904,  subsequent  to  the  outbreak  of  hostilities  between  Russia  and 
Japan.  The  fact  that  Russia  and  Japan  were  at  war  was  unknown  to 
the  parties  at  the  time  they  signed  the  charter  party,  but  the  charter 
party  was  made  in  anticipation  of  war,  and  the  fact  that  war  had 
broken  out  became  known  to  the  parties  immediately  after  the  charter 
party  had  been  signed.  The  owners  of  the  Prometheus  are  Norwegians, 
subjects  of  a  power  neutral  in  the  war  between  Russia  and  Japan.  The 
charterers,  the  Osaka  Shosen  Kaisha,  a  Japanese  steamship  company, 
are  subjects  of  Japan,  one  of  the  belligerent  powers.  The  Osaka  Sho- 
sen Kaisha  is  a  well-known  company  engaged  prior  to  the  outbreak 
of  war  in  running  a  regular  line  of  steamers  carrying  cargo  and  pas- 
sengers from  Japan  to  Formosa  and  back,  calling  at  Japanese  inter- 
ports  each  way,  and  carrying  ordinarily  and  regularly  as  part  of  such 
cargo  sugar,  rice,  and  foodstuffs  generally.  The  fact  was  known  to 
Messrs.  Sander,  Wieler  &  Co.  at  the  time  of  the  negotiations  for  the 
charter  of  the  Prometheus,  and  the  Prometheus  was  chartered  for  the 
express  purpose  of  being  employed  in  that  line,  so  running  between 
Japan  and  Formosa,  to  replace  certain  steamers  regularly  theretofore 
so  employed  which  had  been  taken  up  by  the  Japanese  Government. 
*  *  *  On  the  19th  of  March  the  master  of  the  Prometheus  receiv- 
ed at  Kobe  a  telegram  from  his  owners  directing  him  to  "decline  rice 
and  provisions  between  Japanese  ports"  and  further  directing  him  to 
"try  cancel"  the  charter  party.  The  direction  to  decline  to  load  rice 
and  provisions  was  communicated  by  the  master  to  the  Osaka  Shosen 
Kaisha.  A  correspondence  ensued  between  the  charterers,  and  the 
master,  in  which  the  charterers  denied  and  the  master  asserted  that 
rice,  sugar  and  provisions  generally  were  contraband  of  war,  ending 
by  the  master  declining  to  load  "rice,  sugar  and  provisions"  for  car- 
riage between  Japanese  ports  unless  an  increased  amount  was  paid  for 
the  hire  of  the  ship,  alleging  as  the  ground  for  this  refusal  that  pro- 

ScoTT  Int.Law 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  963 

visions  were  contraband  of  war,  which,  by  an  express  term  of  the  char- 
ter party,  was  not  to  be  loaded  on  his  ship.     *     *     * 

In  consequence  of  the  refusal  of  the  master  to  load  this  cargo  the 
whole  purpose  of  the  charter  party  was  frustrated.  The  intended  voy- 
age for  which  the  Prometheus  was  loading  at  the  time  was  on  the  regu- 
lar line  between  Kobe  and  Formosa,  and  the  ports  to  which  it  vvas 
proposed  to  send  the  Prometheus  were  not  ports  of  military  or  naval 
equipment,  but  ordinary  commercial  ports.  *  *  *  Qf  the  remain- 
ing clauses  of  the  charter  party  the  37th  only  seems  to  bear  upon  the 
matters  in  dispute  between  the  charterers  and  the  owners  of  the  Pro- 
metheus. 

That  clause  is  as  follows :  "In  case  of  war  steamer  not  to  be  directed 
to  any  blockaded  port  nor  to  carry  any  contraband  of  war."  In  the 
"London  Gazette"  of  the  1st  March,  1904,  a  notification  from  his 
Majesty's  Secretary  of  State  for  Foreign  Affairs,  dated  29th  Febru- 
ary, 1904,  appeared,  the  material  portion  of  which  is  as  follows :  "His 
Majesty's  Secretary  of  State  for  Foreign  Affairs  has  received  the  fol- 
lowing telegram  from  his  Majesty's  Ambassador  at  St.  Petersburg — 
"Regulation  affecting  neutrals  to  be  applied  by  Russia  during  war  with 
Japan,  published  to-day.  Declared  Contraband  of  War."  Here  follows 
a  detailed  statement  of  specific  articles,  which  are  to  be  considered  un- 
conditional contraband  of  war,  and  the  declaration  concludes  as  fol- 
lows: "Generally  all  objects  intended  for  war  by  sea  or  land  including 
rice,  provisions,"  etc.     *     *     * 

It  is  on  the  above  briefly  summarized  facts  that  the  arbitrator  has  ad- 
dressed to  me  his  questions,  three  in  number,  as  follows:  Firstly, 
whether  under  the  terms  of  Russia's  declaration  the  cargo  intended  for 
shipment,  from  Yokohama  and  Kobe  to  Kagoshima,  Okinawa,  Anping 
and  Takao  by  the  Prometheus  was  contraband?  If  so,  whether  Rus- 
sia's declaration  in  this  respect  is  binding  upon  neutrals,  or  whether 
it  is  ultra  vires.     *     *     * 

Now,  bearing  that  rule  in  mind  I  proceed  to  determine  what  is  the 
primary  sense  of  the  expression  "contraband  of  war,"  and  to  enquire 
whether  there  is  anything  in  the  charter  party  to  warrant  me  in  setting 
aside  the  primary  meaning  of  that  expression,  and  in  attaching  a  pe- 
culiar meaning  thereto.  *  *  *"  The  expression  "contraband  of 
war,"  as  used  in  the  agreement  between  the  Osaka  Shosen  Kaisha  and 
the  owners  of  the  Prometheus,  must,  therefore,  be  given  the  primary 
sense  attached  thereto  at  the  time  of  the  signing  of  the  charter  party, 
and  not  any  other  and  particular  meaning  which  it  might  suit  either 
party  in  the  light  of  subsequent  events  to  attach  thereto ;  for  I  cannot 
see  anything  in  the  document  itself  which  would  justify  me  in  depriv- 
ing that  expression  of  its  primary  meaning.  The  expression  contra- 
band of  war  only  appears  once  in  the  charter  party,  and  its  meaning 
is  in  no  way  affected  by  anything  in  the  context.  What  then  is  the 
meaning  of  expression  "contraband  of  war"  in  its  primary  sense?    Mr. 


964  RIGHTS   AND   DUTIES   OF  NATIONS   IN  TIME   OF  WAR         (Part  3 

Wharton,  in  his  "Law  Lexicon"  defines  contraband  of  war  as  mean- 
ing in  its  primary  sense  that  which  according  to  international  law  can- 
not be  supplied  to  a  hostile  belligerent  except  at  the  risk  of  seizure  and 
condemnation  by  the  aggrieved  belligerent.  That  seems  to  me  a  sound 
definition  if  you  understand  the  word  "risk"  to  mean  that  risk  which 
is  contemplated  and  recognized  by  the  law  of  nations.  Broadly  stated 
then  "contraband  of  war"  is  that  which  is  so  considered  by  the  law  of 
nations.  The  question  which  naturally  follows  is,  "What  do  you  mean 
by  the  law  of  nations?"  I  answer  that  the  law  of  nations  is  that  system 
of  rules  respecting  belligerent  and  neutral  rights  established  by  consent 
among  the  civilised  and  commercial  nations  of  the  world,  partly  written 
and  partly  arising  out  of  custom  and  rendered  stable  by  judicial  de^ 
cisions  from  time  to  time. 

In  my  opinion,  the  expression  contraband  of  war  has  a  well-known 
and  accepted  meaning  among  the  civilised  commercial  powers  of  the 
world.  If  that  were  not  so  we  should  not,  as  we  do,  find  that  expression 
used  without  definition  in  solemn  treaties  between  the  powers.  The 
expression  "contraband  of  war"  is  used  without  any  definition  of  its 
meaning  in  the  Treaty  of  Paris  of  the  16th  April,  1856.  The  inference 
from  that  fact  is,  to  my  mind,  irresistible  that  there  was  no  definition 
needed,  because  the  expression  had  the  same  definite  meaning  in  the 
minds  of  all  the  plenipotentiaries  of  the  Powers  parties  to  that  treaty. 

The  Treaty  of  Paris,  to  which  Russia  is  a  party,  and  to  which  she 
still  adheres,  commences  with  the  following  preamble :  "Considering 
that  maritime  law  in  time  of  war  has  long  been  the  subject  of  deplora- 
ble disputes ;  that  uncertainty  of  the  law  and  of  the  duties  in  such  a 
matter  gives  rise  to  difference  of  opinion  between  neutrals  and  bellig- 
erents which  may  occasion  serious  difficulties,  and  even  conflicts ;  that 
it  is  consequently  advantageous  to  establish  a  uniform  doctrine  on  so 
important  a  point;  that  the  plenipotentiaries  assembled  in  congress 
at  Paris  cannot  better  respond  to  the  intention  by  which  their  Govern- 
ments are  animated  than  by  seeking  to  introduce  into  international  re- 
lations fixed  principles  in  this  respect."  Then  immediately  follows  this 
declaration: 

"The  above-mentioned  plenipotentiaries  being  duly  authorised  re- 
solved to  concert  among  themselves  as  to  the  means  of  attaining  this 
object;  and  having  come  to  an  agreement  have  adopted  the  following 
solemn  declaration: 

"(1)  Privateering  is,  and  remains  abolished. 

"(2)  The  neutral  flag  covers  enemy's  goods,  with  the  exception  of 
contraband  of  war. 

"(3)  Neutral  goods,  with  the  exception  of  contraband  of  war,  are 
not  liable  to  capture  under  the  enemy's  flag. 

"(4)  Blockades  in  order  to  be  binding,  must  be  effective,  that  is  to 
say  maintained  by  a  force  sufficient  really  to  prevent  access  to  the 
coast  of  the  enemy." 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  965 

I  draw  special  attention  to  the  fact  that  the  expression  "contraband 
of  war"  is  twice  used  in  this  declaration  without  being  in  any  way  de- 
fined. This  declaration  was  designed  to  give  effect  to  the  opinion  of 
the  plenipotentiaries  expressed  in  the  preamble,  viz.  that  it  was  to 
the  advantage  of  the  civilized  world  to  establish  a  uniform  doctrine 
on  the  subject  of  maritime  law  in  time  of  war;  and  with  that  object 
in  view  to  introduce  certain  "fixed  principles."  At  the  same  sitting  of 
the  plenipotentiaries  the  following  resolution  was  adopted  (Protocol 
No.  24) : 

"On  the  proposition  of  Count  Walewski,  and  recognizing  that  it  is 
for  the  general  interest  to  maintain  the  indivisibility  of  the  four  princi- 
ples mentioned  in  the  declaration  signed  this  day,  the  plenipotentiaries 
agree  that  the  powert  which  shall  have  signed  it,  or  which  shall  have 
acceded  to  it,  cannot  hereafter  enter  into  any  arrangement  in  regard 
to  the  application  of  the  right  of  neutrals  in  time  of  war  which  does 
not  at  the  same  time  rest  on  the  four  principles  which  are  the  object 
of  the  said  declaration." 

It  will  be  observed  that  by  this  protocol  the  plenipotentiaries  of 
Russia  biijd  that  power  not  thereafter  to  adopt  any  attitude  towards 
neutrals  in  time  of  war  which  does  not  rest  upon  the  four  principles 
enunciated  in  the  declaration.  This  protocol  has  an  important  bearing 
upon  the  contention  at  the  bar  that  Russia  as  an  independent  sovereign 
state  possesses,  as  a  concomitant  to  the  right  to  make  war,  the  right  to 
declare  what  shall  or  shall  not  be  considered  contraband  of  war. 

I  dwell  here  upon  the  fact  that  the  expression  "contraband  of  war" 
occurs  twice  in  the  declaration  in  the  Treaty  of  Paris ;  that  the  ex- 
pressions "privateering"  and  "blockade"  occur  each  once;  and  that 
there  is  in  that  declaration  no  definition  of  the  meaning  of  any  of  those 
expressions.  Why  was  there  this  omission  to  define  these  expressions  ? 
Was  it  not  because  they  each  had  in  the  minds  of  the  plenipotentiaries 
of  the  powers  a  recognized  meaning  at  the  time  when  the  treaty  was 
signed?  and  because  the  expression  "contraband  of  war"  no  more 
needed  definition  than  the  expressions  "blockade"  or  "privateering" 
did  ?  What  then  was  the  meaning  which  it  must  fairly  be  assumed  the 
plenipotentiaries  attached  to  the  expression  "contraband  of  war"  as 
used  by  them  in  the  Treaty  of  Paris?  It  seems  to  me  that  the  pleni- 
potentiaries had  in  their  minds  the  meaning  which  at  that  time  at- 
tached to  the  expression  "contraband  of  war"  resulting  from  the  de- 
cisions of  the  courts  of  law  of  the  nations  of  Europe  and  America : 
principally  indeed  the  decisions  in  the  English  courts  on  cases  arising 
during  the  Napoleonic  War.  What  then  is  the  result  of  those  decisions? 
What  meaning  has  been  thereby  attached  to  the  expression  "contraband 
of  war"  ?  The  result  has  been  to  attach  to  that  expression  the  follow- 
ing twofold  meaning:  (1)  Absolute  contraband  of  war — which  in- 
cludes everything  useful  for  war  only ;  (2)  that  which  is  conditional 
contraband  of   war — which   includes  all  things  which  though   useful 


966  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF  WAR         (Part  3 

for  both  peace  and  war  become  contraband  if  destined  for  the  purposes 

of  war excluding  from  the  meaning  of  contraband  of  war  such  things 

as  are  useful  for  the  purposes  of  peace  only.  "Provisions,"  conse- 
quently, come  within  the  definition  of  conditional  contraband  only,  if 
and  when  destined  for  the  enemy's  forces;  otherwise  they  are  ex- 
cluded from  the  definition. 

That  is,  in  my  opinion,  the  true  meaning  to  be  attached  to  the  ex- 
pression "contraband  of  war,"  and  that  is  the  sense  which,  in  my 
opinion,  that  expression  bears  on  a  true  construction  of  the  declara- 
tion of  the  plenipotentiaries  who  signed  the  Treaty  of  Paris  of  1856. 
That  is,  in  my  opinion,  the  sense  in  which  the  parties  to  the  charter  of 
the  ship  Prometheus  must  be  taken  to  have  understood  the  expression 
"contraband  of  war"  when  they  agreed  by  clause  37,  that  the  ship 
Prometheus  was  not  to  "carry  any  contraband  of  war."  To  construe 
that  expression  as  meaning  whatever  might  at  any  time,  that  is  to 
say  from  time  to  time,  be  declared  by  Russia  to  be  contraband,  as  the 
learned  coimsel  for  the  owner  contended  I  should,  would  be  to  import 
into  the  contract  between  the  parties  an  element  of  uncertainty  where 
none  need  exist.  The  contract  was  made  in  Hongkong,  and  therefore 
in  the  absence  of  evidence  to  the  contrary  which  I  could  act  upon  the 
parties  must  be  taken  to  have  used  the  expression  "contraband  of  war" 
in  the  sense  in  which  it  is  understood  in  British  courts  of  law,  which 
is  its  sense  in  international  law.  It  cannot  be  successfully  contended 
that  provisions  would  be  regarded  by  British  courts  of'  law  as  uncon- 
ditional contraband  of  war,  or  that  there  is  any  likelihood  that  they  will 
ever  take  that  view.  Had  this  court  been  asked  at  any  time  between 
the  signing  of  the  charter  party  on  the  10th  February  1904  and  the 
issuing  of  the  Russian  declaration  to  construe  the  meaning  of  the 
words  contraband  of  war  it  cannot  be  doubted  that  it  would  have  ex- 
cluded provisions  from  the  category  of  unconditional  contraband. 

It  is  contended,  however,  that  the  court  ought  to  place  a  different 
meaning  on  that  expression,  after,  and  in  view  of,  the  terms  of  the 
Russian  declaration,  inasmuch  as  Russia  being  a  sovereign  independent 
power  has  a  prerogative  right  to  declare  whatever  she  pleases  to  be  con- 
traband of  war  in  any  war  in  which  she  may  be  engaged,  and  that  the 
effect  of  the  Russian  declaration  hiaving  been  to  make  provisions  un- 
conditionally contraband  the  master  of  the  ship  Prometheus  was  ex- 
cused from  loading  them  on  his  ship.  In  this  contention  I  am  unable  to 
concur.  In  the  view  which  I  take  of  the  effect  of  the  declaration  un- 
der the  Treaty  of  Paris  of  1856,  and  of  the  undertaking  by  the  several 
powers  signatory  thereto,  given  in  the  protocol  No.  24,  not  to  depart 
from  the  principles  enunciated  in  the  declaration,  I  think  that  Russia 
was  not  at  liberty  to  declare  provisions  unconditional  contraband  of 
war;  and  that  her  declaration  in  that  respect  could  not  affect  the  con- 
tract between  the  parties  to  this  charter  party,  even  supposing  it  could 
be  held  that  contraband  of  war  means,  as  used  in  the  charter  party, 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  967 

whatever  Russia  may  consider  as  such:  for  Russia  having  been  a 
party  to  the  solemn  declaration  of  "fixed  principles"  under  the  Treaty 
of  Paris  was  not  at  liberty  to  disregard  those  principles  and  was  there- 
fore bound  to  recognize,  and  act  upon,  the  generally  accepted  rule  of 
international  law  that  provisions  are  not  unconditional  contraband. 
In  this  view  I  am  supported  by  the  decision  in  the  case  of  Pollard  v. 
Bell,  8  T.  R.  434,  where  it  was  laid  down  that  it  is  not  competent  to 
one  nation  to  add  to  the  law  of  nations  by  its  own  arbitrary  ordinances 
without  the  concurrence  of  other  nations,     *     *     * 

In  Pollard  v.  Bell,  8  T.  R.  434,  decided  in  1800,  a  French  Prize 
Court,  France  then  being  at  war  with  Great  Britain,  and  Denmark  be- 
ing neutral,  condemned  a  Danish  ship  on  the  ground  that  she  was  at 
the  time  of  capture  carrying  a  Scotchman  as  supercargo  in  violation  of 
an  ordinance  by  which  it  was  declared  that  all  ships  should  be  con- 
fiscated "wherever  there  shall  be  found  on  board  a  supercargo,  mer- 
chant, commissary,  or  chief  officer  being  an  enemy."  In  dealing  with 
the  ground  assigned  by  the  French  court  condemning  the  ship  Chief 
Justice  Lord  Kenyon  said :  "This  is  one  of  the  numberless  questions 
that  have  arisen  in  consequence  of  the  extraordinary  sentences  of  con- 
demnation passed  by  the  courts  of  admiralty  in  France  during  this 
^g^j.  *  *  *  ^Q  g^  question  asked  in  the  course  of  the  argument, 
what  are  the  rules  on  which  the  courts  of  admiralty  profess  to  pro- 
ceed, I  answer,  the  l^w  of  nations,  and  such  treaties  as  particular  states 
have  agreed  shall  be  engrafted  on  that  law.  It  was  said  by  the  de- 
fendant's counsel  that  an  ordinance  has  the  same  force  as  a  treaty,  but 
without  stopping  to  enlarge  on  the  difference  between  them  it  is  suffi- 
cient to  say  that  the  one  is  a  contract  made  by  the  contracting  parties 
and  that  the  other  is  an  ex  parte  ordinance  made  by  one  nation  only,  to 
which  no  other  state  is  a  party ;  and  I  concur  with  Lord  Mansfield  in 
opinion  that  it  is  not  competent  to  one  nation  to  add  to  the  law  of  na- 
tions by  its  own  arbitrary  ordinances  without  the  concurrence  of  other 
nations."     *     *     * 

Applying  the  principle  of  that  case  to  the  present  case,  I  say  that  the 
Russian  declaration  including  provisions  among  the  list  of  articles  ab- 
solutely contraband  and  as  departing  from  the  recognised  custom  of 
nations  had  no  binding  eft'ect  upon  other  nations,  and  consequently 
could  not  excuse  the  nonperformance  of  the  contract  under  the  char- 
ter party  between  the  Osaka  Shosen  Kaisha  and  the  owners  of  the 
steamship  Prometheus.  It  was  contended  on  behalf  of  the  owners  of 
the  Prometheus  that  the  terra  "law"  as  applied  to  this  recognised  sys- 
tem of  principles  and  rules  known  as  international  law  is  an  inexact 
expression,  that  there  is,  in  other  words,  no  such  thing  as  international 
law ;  that  there  can  be  no  such  law  binding  upon  all  nations  inasmuch 
as  there  is  no  sanction  for  such  law,  that  is  to  say  that  there  is  no  means 
by  which  obedience  to  such  law  can  be  imposed  upon  any  given  nation 


968  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

refusing  obedience  thereto.  I  do  not  concur  in  that  contention.  In  my 
opinion  a  law  may  be  established  and  become  international,  that  is  to  say 
binding  upon  all  nations,  by  the  agreement  of  such  nations  to  be  bound 
thereby,  although  it  may  be  impossible  to  enforce  obedience  thereto 
by  any  given  nation  party  to  the  agreement.  The  resistance  of  a 
nation  to  a  law  to  which  it  has  agreed  does  not  derogate  from  the 
authority  of  the  law  because  that  resistance  cannot,  perhaps,  be  over- 
come. Such  resistance  merely  makes  the  resisting  nation  a  breaker 
of  the  law  to  which  it  has  given  its  adherence,  but  it  leaves  the  law, 
to  the  establishment  of  which  the  resisting  nation  was  a  party,  still 
subsisting.  Could  it  be  successfully  contended  that  because  any  giv- 
en person  or  body-  of  persons  possessed  for  the  time  being  power  to 
resist  an  established  municipal  law  such  law  had  no  existence?  The 
answ^er  to  such  a  contention  would  be  that  the  law  still  existed,  though 
it  might  not  for  the  time  being  be  possible  to  enforce  obedience  to 
it.  My  answer  to  the  first  question  put  to  me  by  the  arbitrator  must 
therefore,  for  the  reasons  I  have  given,  be  (1)  that  the  cargo  intend- 
ed to  be  loaded  by  the  charterers  on  the  steamship  Prometheus  was 
not  contraband  of  war  within  the  meaning  of  the  charter  party;  (2) 
that  the  Russian  declaration  constituting  provisions  unconditional  con- 
traband was  not  binding  upon  neutrals  who  were  no  party  thereto,  and 
consequently  has  no  bearing  upon  the  construction  of  the  charter  party 
between  the  Osaka  Shosen  Kaisha  and  the  owners  of  the  ship  Prome- 
theus.    *     *     * 

The  special  case  will  now  be  remitted  to  the  arbitrator,  who  will 
guide  himself  in  making  his  award  by  the  answers  which  I  have  given 
to  the  questions  put  by  him  to  me. 


THE  HAKAN. 

(Privy  Council,  1917.    L.  R.  [1918]  App.  Cas.  148.) 

The  judgment  of  their  Lordships  was  delivered  by 
Lord  Parker  of  Waddixgton.^®  The  Swedish  steamship  Hakan, 
the  subject  of  this  appeal,  was  captured  at  sea  by  H.  M.  S.  Nonsuch 
on  April  4,  1916,  having  sailed  the  same  day  from  Haugesund  in  Nor- 
way on  a  voyage  to  Liibeck  in  Germany  with  a  cargo  of  salted  herrings. 
Foodstuffs  had  as  early  as  August  4.  1914,  been  declared  to  be  con- 
ditional contraband.  The  writ  in  the  present  proceedings  claimed 
condemnation  of  both  ship  and  cargo,  the  former  on  the  ground  that 
it  was  carrying  contraband  goods  and  the  latter  on  the  ground  that  it 
consisted  of  contraband  goods. 

It  should  be  observed  that  the  cargo,  being  on  a  neutral  ship,  was, 

80  The  statement  of  facts  and  parts  of  the  opinioa  are  omitted. 


Cb.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  969 

even  if  it  belonged  to  enemies,  exempt  from  capture  unless  it  consisted 
of  contraband  goods.    See  the  Declaration  of  Paris. 

The  cargo  owners  did  not  appear  or  make  any  claim  in  the  action,  al- 
though, according  to  the  usual  practice  of  the  Prize  Court,  even 
enemies  may  appear  and  be  heard  in  defence  of  their  rights  imder  an 
international  agreement.  The  question  whether  the  goods  were  contra- 
band was,  however,  fully  argued  by  counsel  for  the  owners  of  the 
ship,  a  Swedish  firm  carrying  on  business  at  Gothenburg.  The  Presi- 
dent condemned  the  cargo  as  contraband.  He  also  condemned  the  ship 
for  carrying  contraband.  The  owners  of  the  ship  have  now  appealed 
to  his  Majesty  in  Council.  Under  these  circumstances  the  first  ques- 
tion to  be  decided  is  whether  the  cargo  was  rightly  condemned  as  con- 
traband, for  if  it  was  not  there  could  be  no  case  against  the  ship. 

In  their  Lordships'  opinion,  goods  which  are  conditional  contraband 
can  be  properly  condemned  whenever  the  court  is  of  opinion,  under  all 
the  circumstances  brought  to  its  knowledge,  that  they  were  probably 
intended  to  be  applied  for  warlike  purposes:  The  Jonge  Margaretha, 
1  C.  Rob.  189.  The  fact  alone  that  the  goods  in  question  are  on  the 
way  to  an  enemy  base  of  naval  or  military  equipment  or  supply  would 
justify  an  inference  as  to  their  probable  application  for  warlike  pur- 
poses: But  the  character  of  the  place  of  destination  is  not  the  only  cir- 
cumstance from  which  this  inference  can  be  drawn.  All  the  known 
facts  have  to  be  taken  into  account.  The  fact  that  the  goods  are  con- 
signed to  the  enemy  gOA^ernment.  and  not  to  a  private  individual,  would 
be  material.  The  same  would  be  the  case  if,  though  the  goods  are 
consigned  to  a  private  individual,  such  individual  is  in  substance  or  in 
fact  the  agent  or  representative  of  the  enemy  Government. 

In  the  present  case  Liibeck,  the  port  of  destination  of  the  goods,  is 
undoubtedly  a  port  used  largely  for  the  importation  into  Germany  of 
goods  from  Norway  and  Sweden;  but  it  does  not  appear  whether  it 
is  used  exclusively  or  at  all  as  a  base  of  naval  or  military  equipment. 
On  the  other  hand,  it  is  quite  certain  that  the  persons  to  whom  the 
goods  were  consigned  at  Liibeck  were  bound  forthwith  to  hand  them 
over  to  the  Central  Purchasing  Company,  of  Berlin,  a  company  appoint- 
ed by  the  German  government  to  act  under  the  direction  of  the  Imperial 
Chancellor  for  purposes  connected  with  the  control  of  the  food  supplies 
rendered  necessary  by  the  war.  The  proper  inference  seems  to  be  that 
the  goods  in  question  are  in  effect  goods  requisitioned  by  the  govern- 
ment for  the  purposes  of  the  war.  It  may  be  quite  true  that  their 
ultimate  application,  had  they  escaped  capture,  would  have  been  to 
feed  civilians,  and  not  the  naval  or  military  forces  of  Germany ;  but 
the  general  scarcity  of  food  in  Germany  had  made  the  victualling  of 
the  civil  population  a  war  problem.  Even  if  the  military  or  naval  forces 
of  Germany  are  never  supplied  with  salted  herrings,  their  rations  of 
bread  or  meat  may  well  be  increased  by  reason  of  the  possibility  of 


970  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

supplying  salted  herrings  to  the  civil  population.  Under  these  cir- 
cumstances, the  inference  is  almost  irresistible  that  the  goods  were  in- 
tended to  be  applied  for  warlike  purposes,  and,  this  being  so,  their 
Lordships  are  of  opinion  that  the  goods  were  rightly  condemned. 

The  second  question  their  Lordships  have  to  determine  relates  to  the 
condemnation  of  the  ship  for  carrying  the  goods  in  question.     *     *     * 

It  seems  quite  clear  that  at  one  time  in  our  history  the  mere  fact 
that  a  neutral  ship  was  carrying  contraband  was  considered  to  justify 
its  condemnation,  but  this  rule  was  subsequently  modified.  Lord 
Stowell  deals  with  the  matter  in  The  Neutralitet  (1801)  3  C.  Rob.  295. 
"The  modern  rule  of  the  law  of  nations  is,  certainly,"  he  says,  "that 
the  ship  shall  not  be  subject  to  condemnation  for  carrying  contraband 
articles.  The  ancient  practice  was  otherwise ;  and  it  cannot  be  denied, 
that  it  was  perfectly  defensible  on  every  principle  of  justice.  If  to 
supply  the  enemy  with  such  articles  is  a  noxious  act  with  respect  to  the 
owner  of  the  cargo,  the  vehicle  which  is  instrumental  in  effecting  that 
illegal  purpose  cannot  be  innocent.  The  policy  of  modern  times  has, 
however,  introduced  a  relaxation  on  this  point;  and  the  general  rule 
now  is,  that  the  vessel  does  not  become  confiscable  for  that  act.  But 
tl^is  rule  is  Hable  to  exceptions : — where  a  ship  belongs  to  the  owner 
of  the  cargo,  or  where  the  ship  is  going  on  such  service,  under  a  false 
destination  or  false  papers ;  these  circumstances  of  aggravation  have 
been  held  to  constitute  excepted  cases  out  of  the  modern  rule,  and  to 
continue  them  under  the  ancient  one." 

It  is  to  be  observed  that  Lord  Stowell  does  not  say  that  the  particular 
cases  he  refers  to  are  the  only  exceptions  to  the  modern  rule.  On  the 
contrary,  his  actual  decision  in  The  Neutralitet,  3  C.  Rob.  295,  creates 
a  third  exception.  It  should  be  observed,  too,  that  in  a  later  part  of 
his  judgment  he  states  the  reason  for  the  modification  of  the  ancient 
rule  to  be  the  supposition  that  noxious  or  doubtful  articles  might  be 
carried  without  the  personal  knowledge  of  the  owner  of  the  ship.  He 
held  in  the  case  before  him  that  this  ground  for  the  modification  of  the 
rule  entirely  failed,  so  that  the  ancient  rule  applied.  The  reasoning  is 
sound.  For  if  the  ancient  rule  was  modified  because  of  the  possible 
want  of  knowledge  on  the  part  of  the  shipowner,  it  is  perfectly  logical 
to  treat  actual  knowledge  on  the  part  of  the  shipowner  as  a  good 
ground  for  excepting  any  particular  case  from  the  modem  rule. 
Knowledge  will  also  explain  the  two  main  exceptions  to  which  Lord 
Stowell  refers.  If  the  shipowner  also  owns  the  contraband  cargo,  he 
must  have  this  knowledge ;  and  if  he  sails  under  a  false  destination  or 
with  false  papers,  it  is  quite  legitimate  to  infer  this  knowledge  from 
his  conduct.  In  his  earlier  decision  in  The  Ringende  Jacob  (1798)  1 
C.  Rob.  89,  Lord  Stowell  had  stated  the  modern  rule  to  be  that  the 
carrying  of  contraband  is  attended  only  with  loss  of  freight  and  ex- 
penses, except  where  the  ship  belongs  to  the  owner  of  the  contraband 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  971 

cargo  or  where  the  simple  misconduct  of  carrying  a  contraLmd  cargo 
has  been  connected  with  other  mahgnant  and  aggravating  circum- 
stances. If  by  malignant  and  aggravating  circumstances  Lord  Stowell 
meant  only  circumstances  from  which  knowledge  of  the  character  of 
the  cargo  might  be  properly  inferred,  the  rule  thus  stated  does  not 
differ  from  that  laid  down  in  the  subsequent  case  of  The  Neutralitet, 
3  C.  Rob.  295.  But  the  words  used  have  by  some  writers  been  taken 
as  indicating  that,  in  Lord  Stowell's  opinion,  besides  knowledge  of  the 
character  of  the  cargo,  there  must  be  on  the  part  of  the  shipowner  some 
intention  or  conduct  to  which  the  epithets  "malignant  or  aggravating" 
can  be  applied  in  a  real  as  opposed  to  a  rhetorical  sense.  Any  such 
hypothesis  seems,  however,  to  vitiate  the  reasoning  of  Lord  Stowell  in 
The  Neutralitet,  3  C.  Rob.  295.  Sailing  under  a  false  destination  or 
false  papers  may  possibly  be  called  malignant  or  aggravating.  There 
is  not  only  the  knowledge  of  guilt,  but  an  attempt  to  evade  its  con- 
sequences. But  in  the  case  of  the  shipowner  who  also  owns  the  con- 
traband on  board  his  ship  it  is  difficult  to  see  where  the  malignancy  or 
aggravation  lies,  if  it  be  not  in  the  knowledge  of  the  character  of  the 
goods,  on  board.  If  it  be  malignant  or  aggravating  on  the  part  of  the 
owner  of  the  goods  to  consign  them  to  the  enemy,  it  must  be  equally 
malignant  and  aggravating  on  the  part  of  the  shipowner  knowingly  to 
aid  in  the  transaction. 

Nevertheless,  it  was  this  construction  of  Lord  Stowell's  words  in 
The-  Ringende  Jacob,  1  C.  Rob.  89,  rather  than  the  reasoning  on  which 
his  decision  in  The  Neutralitet,  3  C.  Rob.  295,  case  was  based  that  was 
adopted  by  the  Supreme  Court  of  the  United  States  in  the  case  of  The 
Bermuda  (1865)  3  Wall.  514,  555,  18  L.  Ed.  200.  In  that  case  Chase, 
C.  J.,  in  delivering  the  opinion  of  the  Court,  says  as  to  the  relaxation  of 
the  ancient  rule :  "It  is  founded  on  the  presumption  that  the  contra- 
band shipment  was  made  without  the  consent  of  the  owner  given  in 
fraud  of  belligerent  rights,  or,  at  least,  without  intent  on  his  part  to 
take  hostile  part  against  the  countiy  of  the  captors ;  and  it  must  be 
recognized  and  enforced  in  all  cases  where  that  presumption  is  not 
repelled  by  proof.  The  rule,  however,  requires  good  faith  on  the  part 
of  the  neutral,  and  does  not  protect  the  ship  where  good  faith  is 
wanting.  *  *  *  Mere  consent  to  transportation  of  contraband 
will  not  always  or  usually  be  taken  to  be  a  violation  of  good  faith. 
There  must  be  circumstances  of  aggravation.  The  nature  of  the 
contraband  articles  and  their  importance  to  the  belligerent,  and  the 
general  features  of  the  transaction,  must  be  taken  into  consideration  in 
determining  whether  the  neutral  owner  intended  or  did  not  intend, 
by  consenting  to  the  transportation,  to  mix  in  the  war." 

Passing  from  the  English  and  American  decisions  to  the  views 
which  were  at  the  commencement  of  the  present  hostilities  entertained 
by  the  prize  courts  or  jurists  of  other  nations,  we  find  what  at  first 


972  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR  (Part  3 

sight  appears  to  be  considerable  divergence  of  opinion.  If,  however, 
the  true  principle  be  that  knowledge  of  the  character  of  the  cargo  is  a 
sufficient  ground  for  depriving  a  shipowner  of  the  benefit  of  the  modern 
rule,  this  divergence  is  more  apparent  than  real.  It  reduces  itself  to 
a  difference  of  opinion  as  to  the  circumstances  under  which  the  knowl- 
edge may  be  inferred,  and  if  it  be  remembered  that  knowledge  on 
the  part  of  the  shipowner  of  the  character  of  the  cargo  must  be  largely 
a  matter  of  inference  from  a  great  variety-  of  circumstances,  such  differ- 
ence of  opinion  is  readily  intelligible.     *     *     * 

Their  Lordships  consider  that  in  this  state  of  the  authorities  they 
ought  to  hold  that  knowledge  of  the  character  of  the  goods  on  the 
part  of  the  owner  of  the  ship  is  sufficient  to  justify  the  condemnation  of 
the  ship — at  any  rate,  where  the  goods  in  question  constitute  a  sub- 
stantial part  of  the  whole  cargo. 

In  the  light  of  what  has  been  said  as  to  the  rule  of  international  law 
their  Lordships  will  now  proceed  to  consider  the  special  facts  of  this 
case.  The  owners  of  the  ship  are  a  Swedish  firm  carrying  on  business 
at  Gothenburg.  On  January  8,  1916,  they  chartered  the  ship  to  a  Ger- 
man firm  of  fish  dealers  for  a  period  of  six  weeks  from  the  tioie  when 
the  vessel  was  placed  at  charterers'  disposal,  with  power  for  the  char- 
terers to  prolong  this  period  up  to  May  16,  1916.  The  voyages  under- 
taken by  the  charterers  were  to  be  from  Scandinavian  to  German  Baltic 
ports.  It  must  haVe  been  quite  evident  to  the  owners  that  the  ship 
would  be  used  for  the  importation  of  fish  into  Germany.  They  must 
also  have  known  that  foodstuffs  were  conditional  contraband.  It  is 
almost  inconceivable  that  they  did  not  also  know  of  the  food  diffi- 
culties in  Germany  and  of  the  manner  in  which  the  German  govern- 
ment had  in  effect  requisitioned  salted  herrings  to  meet  the  exigencies 
of  the  war.  They  had  an  opportunity  in  the  court  below  of  establishing 
their  want  of  knowledge  if  it  existed,  but  they  did  not  attempt  to  do 
so.  The  inference  that  they  did  in  fact  know  that  the  vessel  would 
b6  used  for  the  purpose  for  which  it  was  used  is  irresistible.  If  knowl- 
edge of  the  character  of  the  goods  be  the  true  criterion  as  to  confisca- 
bility,  the  vessel  was  rightly  condemned. 

Even  on  the  hypothesis  that  something  beyond  mere  knowledge  of 
the  character  of  the  cargo  is  required,  something  which  may  be  called 
"malignant  or  aggravating"  within  the  principles  of  The  Ringende 
Jacob,  1  C.  Rob.  89,  or  The  Bermuda,  3  Wall.  514,  18  L.  Ed.  200,  de- 
cisions, that  something  clearly  exists  in  the  present  case.  A  shipown- 
er who  lets  his  ship  on  time  charter  to  an  enemy  dealer  in  conditional 
contraband  for  the  purposes  of  his  trade  at  a  time  when  the  conditional 
contraband  is  vitally  necessary  to  and  has  been  requisitioned  by  the 
enemy  government  for  the  purpose  of  the  war  is,  in  their  Lordships 
opinion,  deliberately  "taking  hostile  part  against  the  country  of  the 
captors"  and  "mixing  in  the  war"  within  the  meaning  of  those  ex- 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  973 

pressions  as  used  by  Chase,  C.  J.,  in  The  Rermuda,  3  Wall.  514,  18 
L.  Ed.  200. 

In  their  Lordships'  opinion,  the  appeal  fails  and  should  be  dismissed 
with  costs.^^ 


THE  COMMERCEN. 

(Supreme  Court  of  the  United  States,  1816.  1  Wheat.  382,  4  L.  Ed.  116.) 
Appeal  from  the  Circuit  Court  for  the  District  of  Massachusetts. 
This  was  the  case  of  a  Swedish  vessel  captured  on  the  16th  of  April, 
1814,  by  the  private  armed  schooner  Lawrence,  on  a  voyage  from  Lime- 
rick, in  Ireland,  to  Bilboa,  in  Spain,  The  cargo  consisted  of  barley 
and  oats,  the  property  of  British  subjects,  the  exportation  of  which  is 
generally  prohibited  by  the  British  government;  and,  as  well  by  the 
official  papers  of  the  custom-house,  as  by  the  private  letters  of  the 
shippers,  it  appeared  to  have  been  shipped  under  the  special  permission 
of  the  government,  for  the  sole  use  of  his  Britannic  Majesty's  forces 
then  in  Spain.  Bonds  were  accordingly  given  for  the  fulfilment  of  this 
obiect.  At  the  hearing  in  the  District  Court  of  Maine,  the  cargo  was 
condemned  as  enemy's  property,  and  the  vessel  restored,  with  an 
allowance,  among  other  things,  of  the  freight  for  the  voyage,  accord- 
ing to  the  stipulation  of  the  charter  party.  The  captors  appealed  from 
so  much  of  the  sentence  as  decreed  freight  to  the  neutral  ship ;  and, 
upon  the  appeal  to  the  circuit  court  of  Massachusetts,  the  decree,  as  to 
freight,  was  reversed,  and  from  this  last  sentence  an  appeal  was  prose- 
cuted to  this  court.     *     *     * 

31  In  The  Zamora  No.  2,  L.  R.  [1921]  1  App.  Cas.  801,  804.  805  (1921),  Lord 
Sumner,  speaking  for  the  Privy  Council,  said : 

"It  is  clearly  settled  that  a  shipowner  who  carries  an  entire  cargo  of  con- 
traband knowingly  forfeits  his  ship  in  prize.  What  constitutes  knowledge 
and  what  suffices  as  evidence  of  it  may  be  matters  of  difficulty.  During  part 
of  the  eighteenth  century  the  rigorous  doctrine  still  prevailed  that  any  car- 
riage of  contraband  involved  as  a  penalty  the  confiscation  of  the  carrying 
ship.  Bv  the  end  of  that  time,  Sir  William  Scott  records,  in  the  Riugende  Jacob, 
1  C.  Rob.  89  (1798),  and  in  The  Neutralitet,  3  C.  Rob.  295  (1801),  that  the 
practice  of  the  great  powers  had  greatly  relaxed  that  rule.  *  *  *  Lord 
Parker  of  Waddington,  in  pronouncing  their  Lordships'  judgment  on  appeal 
in  The  Hakan.  A.  C.  148.  1.55  (1918),  pointed  out  that  the  common  element, 
which  unites  the  varying  practices  of  different  nations,  is  knowledge  on  the 
carriers'  part  of  the  character  of  the  cargo  carried,  and  that  a  presumption  of 
knowledge,  sometimes  rebuttable  and  sometimes  not,  is  the  feature  which 
makes  relevant  the  proportion  of  the  contraband  cargo  to  the  whole.  Some 
countries  attach  to  certain  proportions  a  presumption  of  knowledge  in  all 
cases,  irrespective  of  the  extent  to  which  the  mind  of  the  particular  carrier 
or  shipowner  may  consciously  have  been  privy  to  the  carriage  of  contraband. 
The  English  prize  courts,  at  any  rate,  have  long  held  that  if  a  shipowner 
knowingly  carries  a  cargo  which  is,  in  v.hole  or  in  large  part,  contraband,  he 
is  liable  to  forfeit  his  ship.  It  accordingly  becomes  necessary  to  examine  the 
facts  of  this  case  somewhat  at  length,  for  if  they  warrant  the  inference  that 
the  shipowners  knew  that  they  were  carrying  contraband,  the  decree  of  con- 
demnation should  be  affirmed  without  further  inquiry." 


974  .  RIGHTS   AND   DUTIES   OP   NATIONS   IN   TIME   OF   WAR         (Part  3 

Story,  J.,  delivered  the  opinion  of  the  court.^^ 

The  single  point  now  in  controversy  in  this  cause  is,  whether  the 
ship  is  entitled  to  the  freight  for  the  voyage.  The  general  rule  that  the 
neutral  carrier  of  enemy's  property  is  entitled  to  his  freight,  is  now  too 
firmly  established  to  admit  of  discussion.  But  to  this  rule  there  are 
many  exceptions.  If  the  neutral  be  guilty  of  fraudulent  or  unneutral" 
conduct,  or  has  interposed  himself  to  assist  the  enemy  in  carrying  on 
the  war,  he  is  justly  deemed  to  have  forfeited  his  title  to  freight. 
Hence,  the  carrying  of  contraband  goods  to  the  enemy ;  the  engaging 
in  the  coasting  or  colonial  trade  of  the  enemy;  the  spoliation  of  pa- 
pers, and  the  fraudulent  suppression  of  enemy  interests,  have  been 
held  to  affect  the  neutral  with  the  forfeiture  of  freight,  and  in  cases 
of  a  more  flagrant  character,  such  as  carrying  despatches  or  hostile  mil- 
itary passengers,  an  engagement  in  the  transport  service  of  the  enemy, 
and  a  breach  of  blockade,  the.  penalty  of  confiscation  of  the  vessel  has 
also  been  inflicted.^*  By  the  modern  law  of  nations,  provisions  are  not, 
in  general,  deemed  contraband;  but  they  may  become  so,  although 
the'  property  of  a  neutral,  on  account  of  the  particular  situation  of 
the  war,  or  on  account  of  their  destination.^*  If  destined  for  the  ordi- 
nary use  of  life  in  the  enemy's  country  they  are  not,  in  general,  con- 
traband ;  but  it  is  otherwise  if  destined  for  military  use.  Hence,  if 
destined  for  the  army  or  navy  of  the  enemy,  or  for  his  ports  of  naval 
or  military  equipment,  they  are  deemed  contraband.^**  Another  excep- 
tion from  being  treated  as  contraband  is,  where  the  provisions  are  the 
growth  of  the  neutral  exporting  country.  But  if  they  be  the  growth  of 
the  enemy's  country,  and  more  especially  if  the  property  of  his  sub- 
jects, and  destined  for  enemy's  use,  there  does  not  seem  any  good  rea- 
son for  the  exemption;  for,  as  Sir  William  Scott  has  observed,  in 
such  case  the  party  has  not  only  gone  out  of  his  way  for  the  supply 
of  the  enemy,  but  he  has  assisted  him  by  taking  off  his  surplus  com- 
modities.^** 

But  it  is  argued  that  the  doctrine  of  contraband  cannot  apply  to  the 
present  case,  because  the  destination  was  to  a  neutral  country;  and  it 
is  certainly  true  that  goods  destined  for  the  use  of  a  neutral  country 
can  never  be  deemed  contraband,  whatever  may  be  their  character,  or 
however  well  adapted  to  warlike  purposes.  But  if  such  goods  are 
destined  for  the  direct  and  avowed  use  of  the  enemy's  army  or  navy, 

82  Part  of  the  opinion  of  Story,  J.,  and  the  dissenting  opinions  of  Marshall, 
C.  J.,  and  Livingston  and  Johnson,  JJ.,  are  omitted. 

33  Bynk.  Quaest.  J.  Pub.  c.  14;  The  Sarah  Christina,  1  G.  Rob.  237  (1799) ; 
The  I-iaasp,  Id.  286  (1799) ;  The  Emanuel,  Id.  296  (1799) ;  The  Immanuel,  2 
C.  Rob.  18G  (1799) ;  The  Atlas,  3  C.  Rob.  299  (1801)  ;  The  Rising  Sun,  2  C. 
Rob.  104  (1799) :  The  Madonna  Del  Burso,  4  G.  Rob.  1(J9  (1.S02) ;  The  Neutral- 
itet,  3  G.  Rob.  29.>  (1801);  The  Weelvaart  Van  Pillaw,  2  C.  Rob.  128  (1799); 
The  Friendship.  6  C.  Rob.  420  (1807). 

3  4  The  Jonge  Margaretha,  1  G.  Rob.  189  (1799). 

35  Id.  30  Id. 


Ch.  17),  NEUTRAL  TRADE  WITH  BELLIGERENTS  975 

we  should  be  glad  to  see  an  authority  which  countenances  this  exemp- 
tion from  forfeiture,  even  though  the  property  of  a  neutral.  Suppose, 
in  time  of  war,  a  British  fleet  were  lying  in  a  neutral  port,  would  it  be 
lawful  for  a  neutral  to  carry  provisions  or  munitions  of  war  thither, 
avowedly  for  the  exclusive  supply  of  such  fleet?  Would  it  not  be  a 
direct  interposition  in  the  war,  and  an  essential  aid  to  the  enemy  in  his 
hostile  preparations?  In  such  a  case  the  goods,  even  if  belonging  to 
a  neutral,  would  have  had  the  taint  of  contraband  in  its  most  offensive 
character,  on  account  of  their  destination ;  and  the  mere  interposition 
of  a  neutral  port  would  not  protect  them  from  forfeiture.  Strictly 
speaking,  however,  this  is  not  a  question  of  contraband ;  for  that  can 
arise  only  when  the  property  belongs  to  a  neutral,  and  here  the  prop- 
erty belonged  to  an  enemy,  and,  therefore,  was  liable,  at  all  events,  to 
condemnation.     *     *     * 

On  the  whole,  the  court  are  of  opinion  that  the  voyage,  in  which 
this  vessel  was  engaged,  was  illicit,  and  inconsistent  with  the  duties  of 
neutrality,  and  that  it  is  a  very  lenient  administration  of  justice  to  con- 
fine the  penalty  to  a  mere  denial  of  freight.^' 


CARRINGTON  et  al.  v.  MERCHANTS'  INS.  CO. 
(Supreme  Court  of  the  .United  States,  1S34.    8  Pet.  495,  S  L.  Ed.  1021.) 

Mr.  Justice  Story  delivered  the  opinion  of  the  court.**  *  *  * 
This  cause  comes  before  the  court  upon  a  certificate  of  a  division  of 
opinion  of  the  judges  of  the  Circuit  Court  for  the  district  of  Massachu- 
setts. Upon  the  trial  of  the  cause  upon  the  evidence,  the  parties  pro- 
pounded certain  questions,  upon  which  the  Circuit  Court  (with  the 
assent  of  the  parties),  certified  a  division  of  opinion,  for  the  purpose 
of  obtaining  the  final  decision  of  this  court  in  regard  to  them. 

The  first  is,  whether  a  seizure  and  detention,  to  come  within  the 

37  In  the  Prins  der  Nederlanden,  L.  R.  [1921]  1  App.  Cas.  754,  760  (1921), 
Lord  Sumner,  speaking  for  the  Privy  Council,  said: 

"The  term  'penalty,'  however,  though  often  mentioned  (e.  g.  in  The  Com- 
mercen.  1  Wheaton.  3S2.  394  (1S16),  is  not  in  this  connection  really  one. 
which  implies  that  the  carriage  of  contraband  is  attended  with  the  usual  in- 
cidents of  the  commission  of  an  offence.  Neutrals  who  carry  contraband  do 
not  break  the  law  of  nations;  they  run  a  risk  for  adequate  gain  and,  if  they 
are  caught,  they  take  the  consequences.  If  they  know  what  they  are  doing. 
those  consequences  may  be  very  serious;  if  they  do  not,  they  may  get  off 
merely  with  some  inconvenience  or  delay.  This  must  suffice  them.  Having 
done  their  best  to  aid  one  belligerent  by  carrying  contraband  for  him,  they 
cannot  ask  that  the  other  shall  pay  the  penalty  for  his  own  success  in  de- 
feating the  attempt  by  rewarding  the  neutral  carrier  as  if  his  venture  had 
succeeded.  That  would  be  to  encourage  the  carrying  of  contraband,  whereas 
it  is  a  thing  to  be  deterred.  Nor  should  ignorance  of  what  he  is  doing  be  a  safe- 
guard to  the  carrier.  If  he  is  to  be  deterred,  it  must  be  made  worth  his  while 
to  know,  in  order  that  he  may  prefer  to  abstain." 

38  The  statement  of  facts  and  that  part  of  the  opinion  dealing  with  "the 
fourth  and  tilth  questions"  are  omitted. 


976  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   WAR         (Part  3 

exception  of  the  policy  relating  to  contraband  and  illicit  trade,  must 
be  for  a  legal  and  justifiable  cause.  The  question  here  propounded 
is  not  whether  there  must  be  a  legal  or  justifiable  cause  for  condemna- 
tion ;  but  simply,  whether  there  must  not  be  such  cause  for  the  seizure 
and  detention.  And  we  are  of  opinion  that  the  question  ought  to  be 
answered  in  the  affirmative.     *     *     * 

The  second  question  is,  whether,  assuming  the  other  facts  to  be  as 
stated  and  alleged  above,  and  taking  the  authority  of  the  seizing  ves- 
sel to  be  such  as  the  plaintiffs  allege  (that  is  to  say,  of  an  armed  vessel 
fitted  out  and  commissioned  at  Callao  by  Rodil),  there  was  a  legal  and 
justifiable  cause  for  the  seizure  of  the  General  Carrington  and  her 
cargo.  The  third  is  precisely  the  same  in  terms,  except  taking  the 
authority  of  the  armed  vessel  to  be  such  as  the  defendants  allege 
(that  is  to  say,  to  be  an  armed  vessel  sailing  under  the  royal  Spanish 
flag,  and  acting  by  the  royal  authority  of  Spain). 

Both  these  questions  present  the  same  general  point,  whether  there 
was,  under  the  circumstances  of  the  case,  a  legal  and  justifiable  cause 
for  the  seizure  and  detention  of  the  ship  and  her  cargo.  The  facts 
material  to  be  taken  into  consideration  in  ascertaining  this  point  are, 
that  the  ship,  when  seized,  had  not  landed  all  her  outward  cargo,  but 
was  still  in  the  progress  of  the  outward  voyage  originally  designated 
by  the  owners;  that  she  sailed  on  that  voyage  from  Providence  with 
contraband  articles  on  board,  belonging,  with  the  other  parts  of  the 
cargo,  to  the  owners  of  the  ship,  with  a  false  destination  and  false 
papers,  which  yet  accompanied  the  vessel ;  that  the  contraband  articles 
had  been  landed  before  the  policy,  which  is  a  policy  on  time,  designat- 
ing no  particular  voyage,  had  attached ;  that  the  underwriters,  though 
taking  no  risks  within  the  exception,  were  not  ignorant  of  the  nature 
and  objects  of  the  voyage ;  and  that  the  alleged  cause  of  the  seizure 
and  detention  was  the  trade  in  articles  contraband  of  war  by  the 
landing  of  the  powder  and  muskets  already  mentioned. 

If  by  the  principles  of  the  law  of  nations  there  existed  under  these 
circumstances  a  right  to  seize  and  detain  the  ship  and  her  remaining 
cargo,  and  to  subject  them  to  adjudication  for  a  supposed  forfeiture, 
notwithstanding  the  prior  deposit  of  the  contraband  goods;  then  the 
question  must  be  answered  in  the  affirmative,  that  there  was  a  legal 
and  justifiable  cause. 

According  to  the  modern  law  of- nations,  for  there  has  been  some 
relaxation  in  practice  of  the  strictness  of  the  ancient  rules,  the  car- 
riage of  contraband  goods  to  the  enemy  subjects  them,  if  captured,  in 
delicto,  to  the  penalty  of  confi'scation ;  but  the  vessel  and  the  remain- 
ing cargo,  if  they  do  not  belong  to  the  owner  of  the  contraband  goods, 
are  not  subject  to  the  same  penalty.  The  penalty  is  applied  to  the 
latter  only  when  there  has  been  some  actual  co-operation  on  their 
part  in  a  meditated  fraud  upon  the  belligerents,  by  covering  up  the 
voyage  under  false  papers  and  with  a  false  destination.     This  is  the 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  977 

general  doctrine  when  the  capture  is  made  in  transitu,  while  the  con- 
traband goods  are  yet  on  board.  But  when  the  contraband  goods 
have  been  deposited  at  the  port  of  destination,  and  the  subsequent  voy- 
age has  thus  been  disconnected  with  the  noxious  articles,  it  has  not 
been  usual  to  apply  the  penalty  to  the  ship  or  cargo  upon  the  return 
voyage,  although  the  latter  may  be  the  proceeds  of  the  contraband. 
And  the  same  rule  would  seem  by  analogy  to  apply  to  cases  where 
the  contraband  articles  have  been  deposited  at  an  intermediate  port 
on  the  outward  voyage,  and  before  it  had  terminated ;  although  there 
is  not  any  authority  directly  in  point. 

But  in  the  highest  prize  courts  of  England,  while  the  distinction  be- 
tween the  outward  and  homeward  voyage  is  admitted  to  govern,  yet 
it  is  established  that  it  exists  only  in  favor  of  neutrals  who  conduct 
themselves  with  fairness  and  good  faith  in  the  arrangements  of  the 
voyage.  If,  with  a  view  to  practice  a  fraud  upon  the  belligerent,  and  to 
escape  from  his  acknowledged  right  of  capture  and  detention,  the 
voyage  is  disguised,  and  the  vessel  sails  under  false  papers,  and  with  a 
false  destination,  the  mere  deposit  of  the  contraband  in  the  course 'of 
the  voyage  is  not  allowed  to  purge  away  the  guilt  of  the  fraudulent  con- 
duct of  the  neutral.  In  the  case  of  The  Franklin,  in  1801,  3  Rob.  217, 
Lord  Stowell  said,  "I  have  deliberated  upon  this  case  and  desire  it  to  be 
considered  as  the  settled  rule  of  law  received  by  this  court,  that  the 
carriage  of  contraband  with  a  false  destination  will  make  a  condemna- 
tion of  the  ship,  as  well  as  the  cargo."  Shortly  afterwards,  in  the 
case  of  The  Neutralitet,  1801,  3  Rob.  295,  he  added,  "The  modern  rule 
of  the  law  of  nations  is,  certainly,  that  the  ship  shall  not  be  subject  to 
condemnation  for  carrying  contraband  goods.  The  ancient  practice 
was  otherwise;  and  it  cannot  be  denied  that  it  was  perfectly  justifiable 
in  principle.  If  to  supply  the  enemy  with  such  articles  is  a  noxious 
act  with  respect  to  the  owner  of  the  cargo,  the  vehicle  which  is  in- 
strumental in  affecting  that  illegal  purpose  cannot  be  innocent.  The 
policy  of  modern  times  has,  however,  introduced  a  relaxation  on  this 
point;  and  the  general  rule  now  is,  that  the  vessel  does  not  become 
confiscated  for  that  act.  But  this  rule  is  liable  to  exceptions.  Where 
a  ship  belongs  to  the  owner  of  the  cargo,  or  where  the  ship  is  going 
on  such  service  under  a  false  destination  or  false  papers ;  these 
circumstances  of  aggravation  have  been  held  to  constitute  excepted 
cases  out  of  the  modern  rule,  and  to  continue  them  under  the  ancient 
rule."  The  cases  in  which  this  language  was  used  were  cases  of 
capture  upon  the  outward  voyage.    See  also  The  Edward,  4  Rob.  68. 

The  same  doctrine  was  afterwards  held  by  the  same  learned  judge 
to  apply  to  cases  where  the  vessel  had  sailed  with  false  papers,  and  a 
false  destination  upon  the  outward  voyage,  and  was  captured  on  the 
return  voyage.  See  The  Nancy,  3  Rob.  122;  The  Christianberg.  6 
Rob.  376.  And  finally  in  the  cases  of  The  Rosalie  and  The  Elizabeth, 
ScoiT  Int.Law— 62 


978  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

in  1802,  4  Rob.,  note  to  table  of  cases,  the  Lords  of  Appeal  in  prize 
cases  held  that  the  carriage  of  contraband  outward  with  false  papers 
will  affect  the  return  cargo  with  condemnation.  These  cases  are  not 
reported  at  large.  But  in  the  case  of  The  Baltic,  1  Acton,  25,  and 
that  of  The  Margaret,  1  Acton,  333,  the  Lords  of  Appeal  deliberately 
reaffirmed  the  same  doctrine.  In  the  latter  case  Sir  William  Grant,  in 
pronouncing  the  judgment  of  the  court  said,  "The  principle  upon 
which  this  and  other  prize  courts  have  generally  proceeded  to  adjudi- 
cation in  cases  of  this  nature  (that  is,  where  there  are  false  papers), 
appears  simply  to  be  this:  that  if  a  vessel  carried  contraband  on  the 
outward  voyage  she  is  liable  to  condemnation,  on  the  homeward  voyage. 
It  is  by  no  means  necessary  that  the  cargo  should  have  been  purchased 
by  the  proceeds  of  this  contraband.  Hence  we  must  pronounce  against 
this  appeal ;  the  sentence  (of  condemnation)  of  the  court  below  being 
perfectly  valid  and  consistent  with  the  acknowledged  principles  of  gen- 
eral law." 

We  cannot  but  consider  these  decisions  as  very  high  evidence  of  the 
law  of  nations,  as  actually  administered ;  and  in  their  actual  applica- 
tion to  the  circumstances  of  the  present  case,  they  are  not,  in  our  judg- 
ment, controlled  by  an  opposing  authority.  Upon  principle,  too,  we 
think,  that  there  is  great  soundness  in  the  doctrine,  as  a  reasonable 
interpretation  of  the  law  of  nations.  The  belligerent  has  a  right  to 
require  a  frank  and  bona  fide  conduct  on  the  part  of  neutrals  in  the 
course  of  their  commerce  in  times  of  war ;  and  if  the  latter  will  make 
use  of  fraud,  and  false  papers,  to  elude  the  just  rights  of  the  belliger- 
ents, and  to  cloak  their  own  illegal  purposes,  there  is  no  injustice  in 
applying  to  them  the  penalty  of  confiscation.  The  taint  of  the  fraud 
travels"  with  the  party  and  his  offending  instrument  during  the  whole 
course  of  the  voyage,  and  until  the  enterprise  has,  in  the  understanding 
of  the  party  himself,  completely  terminated.  There  are  many  analo- 
gous cases  in  the  prize  law  where  fraud  is  followed  by  similar  pen- 
alties. Thus,  if  a  neutral  will  cover  up  enemy's  property  under  false 
papers,  which  also  cover  his  own  property,  prize  courts  will  not  dis- 
entangle the  one  from  the  other,  but  condemn  the  whole  as  good  prize. 
That  doctrine  was  solemnly  affirmed  in  this  court  in  the  case  of  The 
St.  Nicholas,  1  Wheat.  417,  4  L.  Ed.  125.- 

Upon  the  whole,  our  opinion  is,  that  the  general  question  involved 
in  the  second  and  third  questions,  whether  there  was  a  legal  and  jus- 
tifiable cause  of  capture  under  the  circumstances  of  the  present  case, 
ought  to  be  answered  in  the  affirmative.  The  question  as  to  the  au- 
thority of  the  cruiser  to  seize,  so  far  as  it  depends  upon  her  commis- 
sion, can  only  be  answered  in  a  general  way.  If  she  had  a  commis- 
sion under  the  royal  authority  of  Spain,  she  was  beyond  question  en- 
titled to  make  the  seizure.  If  Rodil  had  due  authority  to  grant  the 
commission  the  same  result  would  arise.    If  he  had  no  such  authority, 

Scott  Int.Law 


Ch.  17)         NEUTRAL  TRADE  WITH  BELLIGERENTS  979 

then  she  must  be  treated  as  a  non-commissioned  cruiser,  entitled  to 
seize  for  the  benefit  of  the  crown ;  whose  acts,  if  adopted  and  acknowl- 
edged by  the  crown  or  its  competent  authorities,  become  equally  bind- 
ing. Nothing  is  better  settled  both  in  England  and  America  than  the 
doctrine  that  a  non-commissioned  cruiser  may  seize  for  the  benefit  of 
the  government;  and  if  his  acts  are  adopted  by  the  government,  the 
property,  when  condemned,  becomes  a  droit  of  the  government.  The 
Amiable  Isabella,  6  Wheat.  1,  5  L.  Ed.  191 ;  The  Dos  Hermanos,  10 
Wheat.  306,  6  L.  Ed.  328 ;  The  Melomane,  5  Rob.  41 ;  The  Elsebe,  5 
Rob.  174;  The  Maria  Erangoise,  6  Rob.  282.     *     *     * 

The  sixth  and  last  question  is  whether,  supposing  the  ship  to  have 
traded  in  articles  contraband  of  war  in  the  ports  of  Chili,  and  to  have 
been  seized  afterwards  in  a  port  of  Peru,  then  under  the  royal  author- 
ity, before  she  had  discharged  her  outward  cargo  for  and  on  account 
of  such  contraband  trade,  the  underwriters  be  not  discharged,  whether 
the  subsequent  proceedings  for  her  adjudication  were  regular  or  ir- 
regular. This  question  is  understood  to  raise  the  point  whether,  if  the 
seizure  and  detention  be  bona  fide  for  and  on  account  of  illicit  or  con- 
traband trade,  a  sentence  of  condemnation  or  acquittal,  or  other  regu- 
lar proceedings  to  adjudication,  are  necessary  to  discharge  the  under- 
•  writers.  We  are  of  opinion  that  they  are  not.  If  the  seizure  or  de- 
tention be  lawfully  made  for  or  on  account  of  illicit  or  contraband 
trade,  all  charges,  damages,  and  losses  consequent  thereon,  are  within 
the  scope  of  the  exception.  They  are  properly  attributable  to  such 
seizure  and  detention  as  the  primary  cause,  and  relate  back  thereto. 
If  the  underwriters  be  discharged  from  the  primary  hostile  act,  they 
are  discharged  from  the  consequences  of  it.  The  whole  reasoning  in 
Church  V.  Hubbart,  2  Cranch,  187,  2  L.  Ed.  249,  presupposes  that  if 
the  underwriters  be  exempted  from  the  risk  of  a  justifiable  seizure  for 
illicit  trade,  they  are  not  accountable  for  losses  consequent  thereon, 
whether  arising  from  a  sentence  of  condemnation  or  otherwise.^^   *    *    * 

3  9  This  consequence  does  not  atfcich  unless  false  papers  have  heen  used. 
"The  doctrine  of  these  cases  is  not  approved  of  by  Wheaton  or  by  foreign 
jurists;  and,  while  undoubtedly  severe,  it  does  not  appear  to  be  a  necessary 
deduction  from  the  general  principles  governing  the  forfeiture  of  contraband 
cariioes."  Hall,  Int.  Law,  p.  696  (4th  Ed.,  1S9.5).  But  see  1  Duer,  Marine  Ins., 
627.  note  c  (1845). 

The  enemy  property  is  often  fraudulently  blended  in  the  same  claim  with 
neutral  property.  In  such  a  case,  the  neutral  property  is  liable  to  the  fate  of 
the  guilty,  as  was  held  in  The  St.  Nicholas,  1  Wheat.  417,  4  L.  Ed.  125  (1S16). 
In  like  manner,  guilty  and  innocent  goods  may  belong  to  one  and  the  same 
party.  In  such  a  case,  the  innocent  goods  are  infected  by  the  guilty  to  such 
a  decree  that  they  share  its  fate. 

For  the  nature  and  origin  of  the  doctrine  of  infection,  see.  The  Kronprinses- 
san  Margareta.  The  Parana,  and  Other  Ships.  L.  K.  [1921]  1  App.  Cas.  486, 
491,  494,  495,  497,  in  which  Lord  Sumner,  speaking  for  the  Trivy  Council,  said: 

"These  appeals  are  brought  to  test  the  validity  of  the  doctrine  of  'infetrtion' 
and  its  applicability  to  the  conditions  and  forms  of  overseas  commerce  at  the 
present  time,  and  their  Lordships  think  it  right  to  deal  with  them  accordingly, 


080  RIGHTS  AND   DUTIES   OF  NATIONS   IN  TIME  OF  WAR         (Part  3 

THE  PETERHOFF. 

(Supreme  Court  of  the  United  States,  1866.    5  Wall.  28,  18  L.  Ed.  564.) 

Mr.  Chief  Justice  Chase.'»»  *  *  *  The  classification  of  goods 
as  contraband  or  not  contraband  has  much  pei-plexed  text-Writers  and 
jurists.  A  strictly  accurate  and  satisfactory  classification  is  perhaps 
impracticable ;  but  that  which  is  best  supported  by  American  and  Eng- 
lish decisions  may  be  said  to  divide  all  merchandise  into  three  classes. 
Of  these  classes,  the  first  consists  of  articles  manufactured  and  pri- 
marily and  ordinarily  used  for  military  purposes  in  time  of  war;  the 
second,  of  articles  which  may  be  and  are  used  for  purposes  of  war 
or  peace,  according  to  circumstances;  and  the  third,  of  articles  ex- 
clusively used  for  peaceful  purposes. 

Merchandise  of  the  first  class,  destined  to  a  belligerent  country  or 
places  occupied  by  the  army  or  navy  of  a  belligerent,  is  always  con- 
traband ;  merchandise  of  the  second  class  is  contraband  only  when 
actually  destined  to  the  military  or  naval  use  of  a  belligerent ;  while 
merchandise  of  the  third  class  is  not  contraband  at  all,  though  Hable 
to  seizure  and  condemnation  for  violation  of  blockade  or  siege. 

A  considerable  portion  of  the  cargo  of  the  Peterhoff  was  of  the  » 
third  class,  and  need  not  be  further  referred  to.    A  large  portion,  per- 
haps, was  of  the  second  class,  but  is  not  proved,  as  we  think,  to  have 

although,  as  will  appear,  they,  or  at  any  rate  some  of  them,  might  have  been 
disposed  of  on  narrower  grounds.     •     *     * 

'•For  about  one  hundred  and  tifty  years  at  least  the  law  of  prize  has  con- 
tained two  settled  rules,  one  which  refuses  to  recognize  transfers  of  the 
ownership  of  movables  afloat  from  an  enemy  transferor  to  a  neutral  trans- 
feree, when  unaccompanied  by  actual  delivery  of  the  goods;  and  the  other, 
which  condemns  as  if  contraband  any  goods  which,  though  not  condemnable 
in  themselves,  belong  or  are  deemed  to  belong  when  captured  to  the  same 
owner  as  other  cargo  in  the  same  vessel,  which  cargo  itself  is  liable  to  con- 
demnation as  contraband.     *     *     * 

"Their  Lordships  are  fully  aware  that  some  continental  jurists  have  criti- 
cized the  rule  of  infection  adversely,  and  that  continental  Prize  Courts  have 
not  always  accepted  it,  though  it  has  long  been  adopted  in  the  United  States 
and  more  recently  in  Japan.  They  are,  however,  bound  by  the  decisions  of 
their  predecessors,  which,  consistent  as  they  are,  it  is  too  late  to  overrule  and 
impracticable  to  distinguish.  They  would  observe  that,  valuable  as  the  opin- 
ions of  learned  and  distinguished  writers  must  always  be,  as  aids  to  a  full 
and  exact  comprehension  of  a  systematic  law  of  nations,  Prize  Courts  must 
always  attach  chief  importance  to  the  current  of  decisions,  and  the  more  the 
field  is  covered  by  decided  cases  the  less  becomes  the  authority  of  commenta- 
tors and  jurists.     *     *     * 

"When  once  it  is  found  that,  at  the  time  of  the  seizure,  the  same  person 
was  owner  of  goods  on  board  and  embarked  in  the  same  transaction  or  transit, 
of  which  the  ulterior  destination  involved  their  condemnation,  and  of  goods 
bound  for  a  neutral  port  without  any  ulterior  destination,  neither  the  captor 
nor  the  court  is  called  on  to  investigate  his  mercantile  operations  as  to  these 
other  parcels — an  inquii-y  complex  and  remote,  in  which  the  claimant  has  ail 
the  information,  and  the  captor  all  the  disadvantage — but  these  goods  also 
are  involved  in  the  condemnation." 

*o  The  statement  of  facts  is  omitted  and  only  that  part  of  the  opinion  is 
given  relating  to  contraband  and  its  classification. 


Ch.  17)         NEUTRAL  TRADE  WITH  BELLIGERENTS  981 

been  actually  destined  to  belligerent  use,  and  cannot  therefore  be 
treated  as  contraband.  Another  portion  was,  in  our  judgment,  of  the 
first  class,  or,  if  of  the  second,  destined  directly  to  the  rebel  military 
service.  This  portion  of  the  cargo  consisted  of  the  cases  of  artillery 
harness,  and  of  articles  described  in  the  invoices  as  "men's  army 
bluchers,"  "artillery  boots,"  and  "government  regulation  gray  blankets." 
These  goods  come  fairly  under  the  description  of  goods  primarily 
and  ordinarily  used  for  military  purposes  in  time  of  war.  They  make 
part  of  the  necessary  equipment  of  an  army. 

It  is  true  that  even  these  goods,  if  really  intended  for  sale  in  the 
market  of  Matamoras,  would  be  free  of  liability ;  for  contraband  may 
be  transported  by  neutrals  to  a  neutral  port,  if  intended  to  make  part 
of  its  general  stock  in  trade.  But  there  is  nothing  in  the  case  which 
tends  to  convince  us  that  such  was  their  real  destination,  while  all  the 
circumstances  indicate  that  these  articles,  at  least,  were  destined  for 
the  use  of  the  rebel  forces  then  occupying  Brownsville,  and  other  places 
in  the  vicinity. 

And  contraband  merchandise  is  subject  to  a  different  rule  in  respect 
to  ulterior  destination  than  that  which  applies  to  merchandise  not 
contraband.  The  latter  is  liable  to  capture  only  when  a  violation  of 
blockade  is  intended ;  the.  former  when  destined  to  the  hostile  country, 
or  to  the  actual  military  or  naval  use  of  the  enemy,  whether  blockaded 
or  not. 

The  trade  of  neutrals  with  belligerents  in  articles  not  contraband  is 
absolutely  free,  unless  interrupted  by  blockade ;  the  conveyance  by 
neutrals  to  belligerents  of  contraband  articles  is  always  unlawful,  and 
such  articles  may  always  be  seized  during  transit  by  sea.  Hence,  while 
articles,  not  contraband,  might  be  sent  to  Matamoras  and  beyond  to 
the  rebel  region,  where  the  communications  were  not  interrupted  by 
blockade,  articles  of  a  contraband  character,  destined  in  fact  to  a  state 
in  rebellion,  or  for  the  use  of  the  rebel  military  forces,  were  liable  to 
capture,  though  primarily  destined  to  Matamoras. 

We  are  obliged  to  conclude  that  the  portion  of  the  cargo  which  we 
have  characterized  as  contraband  must  be  condemned.  And  it  is  an  es- 
tablished rule  that  the  part  of  the  cargo  belonging  to  the  same  owner 
as  the  contraband  portion  must  share  its  fate.  This  rule  is  well  stated 
by  Chancellor  Kent,  thus:  "Contraband  articles  are  infectious,  as  it 
is  called,  and  contaminate  the  whole  cargo  belonging  to  the  same  own- 
ers, and  the  invoice  of  any  particular  article  is  not  usually  admitted,  to 
exempt  it  from  general  confiscation." 

So  much  of  the  cargo  of  the  Peterhoff,  therefore,  as  actually  be- 
longed to  the  owner  of  the  artillery  harness,  and  the  other  contraband 
goods,  must  be  also  condemned.     *     f     * 


982  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAE         (Part  3 

SECTION  5.— DESTINATION 
I.    CoNTrNuous  Voyage*^ 


THE.  WILLIAM,  y 

(Lords  on  Appeal  in  Prize  Cases,  1806.    5  0.  Rob.  385.) 

This  was  a  question  on  the  continuity  of  a  voyage  in  the  colonial 
trade  of  the  enemy,  brought  by  appeal  from  the  Vice  Admiralty  Court 
at  Halifax,  where  the  ship  and  cargo,  taken  on  a  destination  to  Bilboa 
in  Spain,  and  claimed  on  behalf  of  Messrs.  W.  &  N.  Hooper  of  Marble- 
head  in  the  state  of  Massachusetts,  had  been  condemned  17th  July,  1800. 

It  appeared  in  evidence  that  the  ship  had  gone  to  Martinique,  where 
the  outward  cargo  was  disposed  of;  that  she  then  proceeded  to  La- 
guira,  and  took  on  board  a  cargo  of  cocoa,  the  property  of  the  owners, 
which  was  brought  to  Marblehead  on  the  29th  May,  and  unladen ;  that 
the  ship  was  then  cleaned  and  slightly  repaired,  and  again  took  on 
board  the  chief  part  of  the  former  cargo,  with  some  sugars  brought 
from  the  Havana  in  other  ships,  and  purchased  by  the  owners,  and 
sailed,  on  or  before  the  7th  June,  upon  a  destination  to  Bilboa.  Among 
the  papers  was  a  certificate  from  the  collector  of  the  customs,  "that 
this  vessel  had  entered  and  landed  a  cargo  of  cocoa,  belonging  to 
Messrs.  W.  &  N.  Hooper,  and  that  the  duties  had  been  secured  agree- 
able to  law,  and  that  the  said  cargo  had  been  reshipped  on  board  this 
vessel,  bound  for  Bilboa;  and  that  her  cargo,  consisting  of  cocoa, 
sugar,  and  fish,  was  the  property  of  the  said  W.  &  N.  Hooper." 

On  the  7th  May,  1804,  the  cause  came  on  to  be  heard  before  the 
Lords  of  Appeal,  upon  the  original  evidence,  when  the  case  was  ar- 
gued on  the  principle  of  continuity,  and  the  application  of  that  principle 
to  the  circumstances  of  the  present  case,  by  the  King's  Advocate  and 
the  Attorney  General,  on  the  part  of  the  captor,  and  by  Mr.  Dallas  and 
Dr.  Arnold,  on  the  part  of  the  appellant.  The  Lords  "pronounced  for 
the  appeal,  reversed  the  sentence  appealed  from,  and  retained  the  prin- 
cipal cause,  therein  admitted  the  claim  for  the  ship  and  cargo,  pro- 
nounced the  said  cargo,  except  seventy  hogsheads  of  cocoa  and  five 
bags  of  cocoa,  to  have  belonged  as  claimed,  and  dismissed  the  bail  given 
in  the  court  below  to  answer  the  appeal  in  respect  thereto ;  but  directed 
farther  proof  to  be  made  of  the  importation  of  the  s-aid  cocoa  into, 
and  exportation  from,  the  port  of  Marblehead,  in  America,  and  the 
payment  of  duties  thereon,  within  nine  months." 

41  See  Charles  B.  Elliott's  Doctrine  of  Continuous  Vo5»ages,  1  American 
Journal  of  International  Law  (1907)  61 ;  Lester  H.  Woolsey's  Early  Cases  on 
the  Doctrine  of  Continuous  Voyages,  Id.  IV  823  (1910). 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  983 

In  obedience  to  that  decree  farther  proof  was  exhibited,  consisting 
of  sundry  documents. 

On  this  proof  the  cause  was  farther  argued ;  and,  on  the  11th  March, 
1806,  the  judgment  of  the  Court  of  Appeal  was  dehvered  by  the  Right 
Honorable  Sir  William  Grant,  Master  of  the  Rolls,  in  the  following 
terms : 

Sir  WiLUAM  Grant.^2  The  question  in  this  case  is,  whether  that 
part  of  the  carsfo  which  has  been  the  subject  of  further  proof,  and 
which,  it  is  admitted,  was,  at  the  time  of  the  capture,  going  to  Spain, 
is  to  be  considered  as  coming  directly  from  Laguira,  within  the  mean- 
ing of  his  Majesty's  instructions.  According  to  our  understanding  of 
the  law,  it  is  only  from  those  instructions  that  neutrals  derive  any  right 
of  carrying  on  with  the  colonies  of  our  enemies,  in  time  of  war,  a 
trade  from  which  they  were  excluded  in  time  of  peace.  The  instruc- 
tions had  not  permitted  -the  3il^ct  trade  between  the  hostile  colony 
and  its  mother  country,  but  had,  on  the  contrary,  ordered  all  vessels 
engaged  in  it  to  be  brought  in  for  lawful  adjudication;  and  what  the 
present  claimants  accordingly  maintain,  is  not  that  they  could  carry 
the  produce  of  Laguira  directly  to  Spain;  but  that  they  were  not  so 
carrying  the  cargo  in  question,  inasmuch  as  the  voyage  in  which  it 
was  taken  was  a  voyage  from  North  America,  and  not  directly  from 
a  colony  of  Spain. 

What  then,  with  reference  to  this  subject,  is  to  be  considered  as  a 
direct  voyage  from  one  place  to  another?  Nobody  has  ever  supposed 
that  a  mere  deviation  from  the  straightest  and  shortest  course,  in 
which  the  voyage  could  be  performed,  would  change  its  denomina- 
tion, and  make  it  cease  to  be  a  direct  one  within  the  intendment  of  the 
instructions.  Nothing  can  depend  on  the  degree  or  the  direction  of 
the  deviation,  whether  it  be  of  more  or  fewer  leagues,  whether  towards 
the  coast  of  Africa,  or  towards  that  of  America.  Neither  will  it  be 
contended  that  the  point  from  which  the  commencement  of  a  voyage 
is  to  be  reckoned  changes  as  often  as  the  ship  stops  in  the  course  of 
it ;  nor  will  it  the  more  change,  because  a  party  may  choose  arbitrarily 
by  the  ship's  papers,  or  otherwise,  to  give  the  name  of  a  distinct  voyage 
to  each  stage  of  a  ship's  progress.  The  act  of  shifting  the  cargo  from 
the  ship  to  the  shore,  and  from  the  shore  back  again  into  the  ship,  does 
not  necessarily  amount  to  the  termination  of  one  voyage  and  the 
commencement  of  another.  It  may  be  wholly  unconnected  with  any 
purpose  of  importation  into  the  place  where  it  is  done.  Supposing 
the  landing  to  be  merely  for  the  purpose  of  airing  or  drying  the 
goods,  or  of  repairing  the  ship,  would  any  man  think  of  describing 
the  voyage  as  beginning  at  the  place  where  it  happened  to  become 
necessary  to  go  through  such  a  process?  Again,  let  it  be  supposed 
that  the  party  has  a  motive  for  desiring  to  make  the  voyage  appear  to 

42  Part  of  the  opinif>n  is  omitted. 


984  RIGHTS   AND   DUTIES   OF  NATIONS   IN   TIME   OF   WAR         (Part  3 

begin  at  some  other  place  than  that  of  the  original  lading,  and  that 
he,  therefore,  lands  the  cargo  purely  and  solely' for  the  purpose  of 
enabling  himself  to  affirm,  that  it  was  at  such  other  place  that  the 
goods  were  taken  on  board,  would  this  contrivance  at  all  alter  the 
truth  of  the  fact?  Would  not  the  real  voyage  still  be  from  the  place 
of  the  original  shipment^  notwithstanding  the  attempt  to  give  it  the 
appearance  of  having  begun  from  a  different  place? 

The  truth  may  not  always  be  discernible,  but  when  it  is  discovered, 
it  is  according  to  the  truth  and  not  according  to  the  fiction,  that  we 
are  to  give  to  the  transaction  its  character  and  denomination.  If  the 
voyage  from  the  place  of  lading  be  not  really  ended,  it  matters  not  by 
what  acts  the  party  may  have  evinced  his  desire  of  making  it  appear  to 
have  been  ended.  That  those  acts  have  been  attended  with  trouble  and 
expense  cannot  alter  their  quality  or  their  effect.  The  trouble  and 
expense  may  weigh  as  circumstances  of  evidence,  to  show  the  purpose 
for  which  the  acts  were  done ;  but  if  the  evasive  purpose  be  admitted 
or  proved,  we  can  never  be  bound  to  accept  as  a  substitute  for  the 
observance  of  the  law,  the  means,-  however  operose,  which  have  been^ 
employed  to  cover  a  breach  of  it.  Between  the  actual  importation  by 
which  a  voyage  is  really  ended,  and  the  colourable  importation  which  is 
to  give  it  the  appearance  of  being  ended,  there  must  necessarily  be  a 
great  resemblance.  The  acts  to  be  done  must  be  almost  entirely  the 
same;  but  there  is  this  difference  between  them.  The  landing  of  the 
cargo,  the  entry  at  the  custom-house,  and  the  payment  of  such  duties 
as  the  law  of  the  place  requires,  are  necessary  ingredients  in  a  genuine 
importation;  the  true  purpose  of  the  owner  cannot  be  eff'ected  with- 
out them.  But  in  a  fictitious  importation  they  are  mere  voluntary 
ceremonies,  which  have  no  natural  connection  whatever  with  the  pur- 
pose of  sending  on  the  cargo  to  another  market,  and  which,  there- 
fore, would  never  be  resorted  to  by  a  person  entertaining  that  pur- 
pose, except  with  a  view  of  giving  to  the  voyage  which  he  has  resolved 
to  continue,  the  appearance  of  being  broken  by  an  importation,  which 
he  has  resolved  not  really  to  make. 

Now,  what  is  the  case  immediately  before  us?  The  cargo  in  ques- 
tion was  taken  on  board  at  Laguira.  It  was  at  the  time  of  the  cap- 
ture proceeding  to  Spain ;  but  the  ship  had  touched  at  an  American 
port.  The  cargo  was  landed  and  entered  at  the  custom-house,  and  a 
bond  was  given  for  duties  to  the  amount  of  1,239  dollars.  The 
cargo  was  re-shipped,  and  a  debenture  for  1,211  dollars  by  way  of 
drawback  was  obtained.  All  this  passed  in  the  course  of  a  few  days. 
The  vessel  arrived  at  Marblehead  on  the  29th  of  May;  on  that  day 
the  bond  for  securing  the  duties  was  given.  On  the  30th  and  31st 
the  goods  were  landed,  weighed,  and  packed.  The  permit  to  ship 
them  is  dated  the  1st  of  June,  and  on  the  3d  of  June  the  vessel  is 
cleared  out  as  laden,  and  ready  to  proceed  to  sea.  We  are  frequently 
obliged  to  collect  the  purpose  from  the  circumstances  of  the  transaction. 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  985 

The  landing  thus  almost  instantaneously  followed  by  the  re-shipment, 
has  little  appearance  of  having  been  made  with  a  view  to  actual  impor- 
tation; but  it  is  not  upon  inference  that  the  conclusion  in  this  case  is 
left  to  rest.  The  claimants,  instead  of  showing  that  they  really  did  im- 
port this  cargo,  have,  in  their  attestation,  stated  the  reasons  which 
determined  them  not  to  import  it.  They  say,  indeed,  that  when 
they  ordered  it  to  be  purchased,  "it  was  with  the  single  view  of  bring- 
ing it  to  the  United  States,  and  that  they  then  had  no  intention  or 
expectation  of  exporting  it  in  the  said  schooner  to  Spain."  Supposing 
that  from  this  somewhat  ambiguous  statement  we  are  to  collect  that 
their  original  intention  was  to  have  imported  this  cargo  into  America, 
with  a  view  only  to  the  American  market,  yet  their  intention  had  been 
changed  before  the  arrival  of  the  vessel.  For  they  state  that  in  the 
beginning  of  May  they  had  received  accounts  of  the  prices  of  cocoa  in 
Spain,  which  satisfied  them  that  it  would  sell  much  better  there  than  in 
America,  and  that  they  had,  therefore,  determined  to  send  it  to  the 
Spanish  market. 

Nothing  is  alleged  to  have  happened  between  the  landing  of  the 
cargo  and  its  re-shipment,  that  could  have  the  least  influence  on  their 
determination.  It  was  not  in  that  short  interval  that  American  prices 
fell,  or  that  information  of  the  higher  prices  in  Spain  had  been  re- 
ceived. Knowing  beforehand  the  comparative  state  of  the  two  mar- 
kets, they  neither  tried  nor  meant  to  try  that  of  America,  but  pro- 
ceeded with  all  possible  expedition  to  go  through  the  forms  which 
have  been  before  enumerated.  If  the  continuity  of  the  voyage  remains 
unbroken,  it  is  immaterial  whether  it  be  by  the  prosecution  of  an  orig- 
inal purpose  to  continue  it,  as  in  the  case  of  the  Essex,  or,  as  in  this 
case,  by  the  relinquishment  of  an  original  purpose  to  have  brought  it 
to  a  termination  in  America.  It  can  never  be  contended,  that  an  in- 
tention to  import,  once  entertained,  is  equivalent  to  importation.  And 
it  would  be  a  contradiction  in  terms  to  say  that  by  acts  done  after  the 
original  intention  has  been  abandoned,  such  original  intention  has  been 
carried  into  execution.  Why  should  a  cargo,  which  there  was  to  be 
no  attempt  to  sell  in  America,  have  been  entered  at  an  American 
custom-house,  and  vohmtarily  subjected  to  the  payment  of  any,  even 
the  most  trifling  duty?  Not  because  importation  was,  or  in  such  a 
case  could  be  intended,  but  because  it  was  thought  expedient  that  some- 
thing should  be  done,  which  in  a  British  Prize  Court  might  pass  for 
importation.  Indeed,  the  claimants  seem  to  have  conceived  that  the 
inquiry  to  be  made  here  was,  not  whether  the  importation  was  real  or 
pretended,  but  whether  the  pretence  had  assumed  a  particular  form, 
and  was  accompanied  with  certain  circumstances  which  by  positive  rule 
were,  in  all  cases,  to  stand  for  importation,  or  to  be  conclusive  evi- 
dence of  it.  And  it  has,  I  understand,  been  said  that  our  departure 
from  that  supposed  rule  in  the  case  of  The  Essex,  Orne,  was  a  surprise 
upon  the  merchants  of  America,  who  had  by  our  former  decisions 


986  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

been  led  to  believe,  that  proof  of  landing  and  payment  of  duties  in 
America  would,  in  every  case,  be  held  absolutely  decisive  of  the  le- 
gality of  the  voyage. 

How  far  even  that  rule  would  have  been  departed  from  by  the  de- 
cision in  the  case  of  The  Essex,  will  hereafter  be  considered.  But  after 
having  looked  very  attentively  into  all  the  cases  in  which,  as  far  as 
I  am  aware,  this  sort  of  question  has  occurred,  I  conceive,  not  only  that 
it  will  be  impossible  -to  point  out  a  judgment,  in  which  any  such  un- 
qualified doctrine  has  been  laid  down,  but  that  the  judgments  ante- 
cedent to  that  in  The  Essex  had  clearly  and  unequivocally  negatived 
the  existence  of  the  alleged  rule  of  decision.     *     *     * 

As  it  is  not  the  object  of  this  review  of  the  cases  to  discuss  the 
merits  of  the  particular  judgments,  but  only  to  examine  whether  there 
be  any  inconsistency  in  their  principles,  it  is  unnecessary  to  advert  to 
any  other  point  in  the  last-mentioned  decision,  than  its  alleged  novelty, 
in  departing  from  the  supposed  principle  of  holding  that  landing  and 
payment  of  duties  in  America  did,  absolutely,  and  under  all  circum- 
stances, legalize  the  subsequent  voyage.  I  have  shown  that  there  was 
not  one  decision  in  which  any  such  principle  had  been  asserted  or  im- 
plied, and  that  there  were  at  least  two  decisions  which  stood  in  direct 
contradiction  to  it — that  in  The  Freeport,  in  1803,  and  that  in  The 
William,  in  1804. 

But  supposing  that  we  had  uniformly  held  that  payment  of  the 
import  duties  furnished  conclusive  evidence  of  importation,  would 
there  have  been  any  inconsistency  or  contradiction  in  holding  that 
the  mere  act  of  giving  a  bond  for  an  amount  of  duties,  of  which  only 
a  very  insignificant  part  was  ever  to  be  paid,  could  not  have  the  same 
effect  as  the  actual  payment  of  such  amount?  The  further  proof  in 
the  Essex  first  brought  distinctly  before  us  the  real  state  of  the  fact 
in  this  particular.  It  has  been  already  mentioned  that  we  had  called 
for  an  account  of  the  drawbacks,  if  any,  that  had  been  received.  This 
produced  the  information  that  although  the  duties  secured  amounted 
to  5,278  dollars,  yet  a  debenture  was  immediately  afterwards  given 
for  no  less  that  5,080  dollars ;  so  that  on  that  valuable  cargo  no 
more  than  $198  would  be  ultimately  payable,  which  sum  is  said  to 
be  more  than  compensated  by  the  advantage  arising  from  the  negotia- 
bility of  the  debenture.  In  the  case  of  The  Eagle,  immediately  pre- 
ceding, it  had  been  sworn  by  the  owner  and  certified  by  the  custom- 
house, that  the  duties,  amounting  to  $1,333,  not  an  unsubstantial  sum 
on  the  not  very  valuable  cargo  of  a  small  vessel  of  one  hundred  and 
ten  tons,  had  been  actually  paid.  In  The  Polly,  Lasky,  it  was  sworn 
generally  that  the  duties  were  paid;  in  The  Mercury,  that  they  were 
paid  or  secured ;  in  The  William,  that  they  were  secured.  Not  a 
word  was  said  about  drawbacks.  It  was  therefore  natural  for  us  to 
understand  American  claimants,  as  they  certainly  wished  we  should 
understand  them,  to  be  speaking  of  the  payment  of  such  duties  as 


Ch.  17)         NEUTRAL  TRADE  WITH  BELLIGERENTS  987 

were  chargeable  on  importation  into  America^,  and  of  a  security  that 
would  make  the  whole  amount  secured  become  payable  at  some  future 
day.  If  we  had  ascribed  to  the  fact,  as  we  believed  it  to  exist,  ever  so 
decisive  an  effect,  I  again  ask,  where  would  be  the  inconsistency  in 
denying  the  same  effect  to  a  fact  of  a  totally  different  nature?  It  must 
not  be  supposed  that  we  pretend  to  judge  what  duties  it  may  be  proper 
for  the  American  government  to  exact  or  to  remit,  neither  do  we  con- 
tend that  an  importation  cannot  be  genuine  because  a  high  duty  has 
not  been  paid.  All  we  say  is,  that,  in  the  nature  of  the  thing,  the  pay- 
ment of  a  slight  duty  does  not  tend,  in  the  same  degree,  to  establish  the 
bona  fides  of  an  importation,  as  the  payment  of  a  heavy  duty  would 
have  done.  We  never  held  that  either  would  necessarily  outweigh 
all  the  evidence  which  could  possibly  be  put  into  the  opposite  scale ; 
but  that  the  one  has  less  weight  than  the  other  is  obvious  to  every  man's 
apprehension. 

On  the  whole,  I  trust,  I  have  demonstrated  that  we  did  not,  in  the 
case  of  The  Essex,  and  that  we  do  not,  in  the  case  now  before  us, 
depart  from  any  principle  which  we  have  ever  adopted.  The  appli- 
cation to  this  case  of  the  principles  on  which  we  really  have  proceeded 
has  been  already  shown.  The  consequence  is,  that  the  voyage  was 
illegal,  and  that  the  sentence  of  condemnation  must  be  affirmed.*^ 

43  In  The  Louisiana  and  Other  Ships,  L.  Ri  [1918]  A.  C.  461,  468,  469  (1918), 
Lord  Parker  of  Waddington,  speaking  for  tlie  Privy  Council,  said: 

"Under  the  circumstances  above  mentioned,  the  only  possible  conclusion  is 
that  the  shipments  per  Louisiana  and  Tomsk  were  made  by  or  on  behalf  of  the 
German  government  through  its  agents  in  America,  and  that  the  details  of  the 
transactions  were  so  arranged  as  to  conceal  the  fact. 

"In  considering,  on  the  principle  of  continuous  voyage,  what  is  the  ultimate 
destination  of  goods  which  are  in  their  nature  conditional  contraband,  it  is 
the  intention  of  the  person  who  is  in  a  position  to  control  the  destination 
which  is  really  material.  *  *  *  jj^jj  i-^g  appellants  been  dealing  with  their 
own  goods  on  their  own  behalf,  their  intention  might  have  been  the  determin- 
ing factor.  But  if,  as  their  Lordships  find,  the  appellants  were  acting  by  the 
direction  of  an  agent  of  the  German  government,  it  is  the  intention  of  the 
German  government  which  must  be  looked  for.  ItVould  be  ridiculous  to  sup- 
pose that  the  German  government  were  speculating  in  fodder  stuffs  for  the 
Scandinavian  markets.  These  stuffs  were  urgently  needed  in  Germany  for 
the  purposes  of  the  war,  and  the  only  possible  inference  is  that  the  goods  in 
question  were  intended  to  reach  Germany  and  be  utilized  for  war  purposes." 

In  The  Bonna,  3  British  and  Colonial  Prize  Cas.  163,  168,  169  (1918),  a 
neutral  vessel  was  seized  as  prize  on  the  ground  that  it  was  carrying  cocoa- 
nut  oil  (conditional  contraband),  and  condemnation  was  claimed  by  the  crown 
on  the  ground  that  although  destined  to  Sweden  it  would  there  be  made  into  a 
substitute  for  butter,  and  the  butter  thus  released, .exported  to  Germany.  Sir 
Samuel  Evans  disallowed  the  claim  for  the  following  reasons: 

"Before  pronouncing  the  decision  of  the  court,  I  think  it  right  to  say  that,  if 
it  were  established  that  raw  materials  were  imported  by  a  neutral  for  the  manu- 
facture of  margarine  with  an  intention  to  supply  the  enemy  with  the  manu- 
factured article,  I  should  be  prepared  to  hold  that  the  doctrine  of  continuous 
voyaiire  applied  so  as  to  make  such  raw  materials  subject  to  condemnation  as 
conditional  contraband  with  an  enemy  destination.  I  should  go  even  further, 
and  hold  that  if  it  were  shown  that  in  a  neutral  country  particular  manu- 
facturers of  margarine  were  acting  in  combination  with  particular  producers 
or  vendors  of  butter,  and  that  the  intention  and  object  of  their  combination 


988  RIGHTS  AND  DUTIES   OF  NATIONS   IN  TIMB  OF  WAR         (Part  3 


THE  STEPHEN  HART.  *      * 

(District  Court  of  the  United  States,  S.  D,  New  York,  1863.    Blatchford's 
Pr.  Cas.,  387,  Fed.  Cas.  No.  13,364.) 

Retts,  District  Judge.^*  The  schooner  Stephen  Hart  was  captured, 
as  lawful  prize  of  war,  by  the  United  States  vessel-of-war  Supply,  on 
the  29th  of  January,  1862,  in  latitude  24°  12'  north,  and  longitude 
82°  14'  west,  off  the  southern  coast  of  Florida,  about  25  miles  from 
Key  West,  and  about  82  miles  from  Point  de  Yeacos,  in  Cuba,  and 
was  sent  to  the  port  of  New  York  for  adjudication,  under  convoy  of 
her  captor.  A  libel  was  filed  against  her  in  this  court  on  the  18th  of 
February,  1862.  On  the  1st  of  May,  1862,  a  claim  to  the  vessel  was 
interposed  by  John  Myer  Harris,  of  Liverpool,  England,  as  her  sole 
owner.  The  test  oath  to  that  claim  was  made  by  Charles  N.  Dyett,  the 
master  of  the  schooner.  On  the  same  day,  a  claim  was  put  in  to  the 
whole  of  the  cargo  of  the  schooner,  by  Samuel  Isaac,  on  behalf  of  him- 
self and  Saul  Isaac,  as  copartners  and  subjects  of  Great  Britain,  do- 
ing business  in  England  under  the  firm  name  of  S.  Isaac,  Campbell  & 
Co.,  and  claiming  to  be  the  sole  owners  of  the  cargo.  The  test  oath 
to  that  claim  was  made  by  Samuel  Isaac.  On  the  25th  of  October, 
1862,  another  claim  to  the  schooner  on  behalf  of  Harris  was  inter- 
posed. In  this  second  claim  Harris  is  described  as  late  of  Liverpool, 
England,  but  now  of  Sherbro',  on  the  western  coast  of  Africa,  at  pres- 
ent residing  in  England,  merchant.  This  second  claim  sets  up  that  he 
is  the  sole  owner  of  the  schooner,  and  is  a  subject  of  the  crown  of 
Great  Britain.     *     *     * 

Many  of  the  principal  questions  involved  in  the  present  case,  and 
in  the  cases  of  The  Springbok  and  The  Peterhoff,  are  alike;  and,  as 
the  conclusion  at  which  the  court  has  arrived  in  all  of  those  cases  is  to 
condemn  the  vessels  and  their  cargoes,  I  shall  announce,  in  this  case, 
the  leading  principles  of  public  law  which  lead  to  a  condemnation  in  all 
the  cases. 

wa.s  to  produce  the  margarine  in  order  to  send  the  butter  to  the  enemy,  the 
same  doctrine  would  be  applicable  with  the  same  results. 

"But  there  is  a  long  space  between  those  two  supposed  cases  and  the  one 
now  before  the  court ;  and  this  space  in  my  view  cannot  be  spanned  by  the 
application  of  the  accepted  principles  of  the  law  of  nations.  I  do  not  consider 
that  it  would  be  in  accordance  with  international  law  to  hold  that  raw  mate- 
rials on  their  way  to  citizens  of  a  neutral  country  to  be  converted  into  a 
manufactured  article  for  consumption  in  that  country  were  subject  to  con- 
vdemnation  on  the  ground  that  the  consequence  might,  or  even  would  neces- 
sarily, be  that  another  article  of  a  lik'^  kind  and  adapted  for  a  like  use  would 
be  exported  by  other  citizens  of  the  neutral  country  to  the  enemy." 

In  The  Balto,  L.  R.  [191T]  Prob.  Div.  79.  83  (1917),  Sir  Samuel  EJvans,  con- 
demning leather  destined  to  Sweden  on  the  ground  that  it  there  could  and 
would  be  manufactured  into  boots,  and  the  manufactured  product  conveyed 
to  Germany,  held  that  under  such  conditions  the  goods  imported  did  not  "be- 
come part  of  the  common  stock  of  the  neutral  country  into  which  they  were 
first  brought.'" 

44  Parts  of  the  opinion  are  omitted. 


Ch.  17)         NEUTRAL  TRADE  WITH  BELLIGERENTS  989 

On  behalf  of  the  libelants,  it  is  urged  in  this  case,  1st,  That  the 
Stephen  Hart  and  her  cargo  were  enemy's  property  when  the  voyage 
in  question  was  undertaken,  and  when  the  capture  was  made ;  2d. 
That  the  schooner  was  laden  with  articles  contraband  of  war,  destined 
for  the  aid  and  use  of  the  enemy,  and  on  transportation  by  sea  to  the 
enemy's  country  at  the  time  of  capture ;  3d.  That,  with  a  full  knowl- 
edge, on  the  part  of  the  owner  of  the  vessel  and  of  the  owners  of  her 
cargo,  that  the  ports  of  the  enemy  were  under  blockade,  the  vessel  and 
her  cargo  were  despatched  from  a  neutral  port  with  an  intention,  on 
the  part  of  the  owners  of  each,  that,  in  violation  of  the  blockade,  both 
the  vessel  and  her  cargo  should  enter  a  port  of  the  enemy. 

On  the  part  of  the  claimants,  it  is  maintained,  1st.  That  the  trans- 
portation of  all  articles,  including  arms  and  munitions  of  war,  be- 
tween neutral  ports  in  a  neutral  vessel,  is  lawful  in  time  of  war ;  2d. 
That  if  a  neutral  vessel,  with  a  cargo  belonging  to  neutrals,  be  in  fact 
on  a  voyage  from  one  neutral  port  to  another,  she  cannot  be  seized 
and  condemned  as  lawful  prize,  although  she  be  laden  with  contraband 
of  war,  unless  it  be  determined  that  she  was  actually  destined  to  a 
port  of  the  enemy  upon  the  voyage  on  which  she  was  seized,  or  unless 
she  is  taken  in  the  act  of  violating  a  blockade. 

It  is  insisted,  on  the  part  of  the  claimants,  that  the  Stephen  Hart 
was,  at  the  time  of  her  capture,  a  neutral  vessel,  carrying  a  neutral 
cargo  from  London  to  Cardenas — both  of  them  being  neutral  ports — 
in  the  regular  course  of  trade  and  commerce.  On  the  other  side  it 
is  contended  that  the  cargo  was  composed  exclusively  of  articles  con- 
traband of  war,  destined,  when  they  left  London,  to  be  delivered  to 
the  enemy,  either  directly,  by  being  carried  into  a  port  of  the  enemy  in 
the  Stephen  Hart  or  by  being  transshipped  at  Cardenas  to  another 
vessel ;  that  Cardenas  was  to  be  used  merely  as  a  port  of  call  for  the 
Stephen  Hart,  or  as  a  port  of  transshipment  for  her  cargo;  that  the 
vessel  and  her  cargo  are  equally  involved  in  the  forbidden  transaction ; 
and  that  the  papers  of  the  vessel  were  simulated  and  fraudulent  in 
respect  to  her  destination  and  that  of  her  cargo.  A  condemnation  is 
not  asked  if  the  cargo  was  in  fact  neutral  property,  to  be  delivered  at 
Cardenas  for  discharge  and  general  consumption  or  sale  there,  but  is 
only  claimed  if  the  cargo  was  really  intended  to  be  delivered  to  the 
enemy  at  some  other  place  than  Cardenas,  after  using  that  port  as  a 
port  of  call  or  of  transshipment,  so  as  to  thus  render  the  representa- 
tions contained  in  the  papers  of  the  vessel  false  and  fraudulent  as  to 
the  real  destination  of  the  vessel  and  her  cargo. 

It  would  scarcely  seem  possible  that  there  could  be  any  serious  de- 
bate as  to  the  true  principles  of  public  law  applicable  to  the  solution 
of  the  questions  thus  presented ;  and,  indeed,  the  law  is  so  well  settled 
as  to  make  it  only  necessary  to  see  whether  the  facts  in  this  case 
bring  the  vessel  and  her  cargo  within  the  rules  which  have  been  laid 
down  by  the  most  eminent  authorities  in  England  and  in  this  country. 


990  RIGHTS  AND  DUTIES   OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

The  principles  upon  which  the  government  of  the  United  States,  and 
the  public  vessels  acting  under  its  commission,  have  proceeded,  during 
the  present  war,  in  arresting  vessels  and  cargoes  as  lawful-  prize  upon 
the  high  seas,  are  very  succinctly  embodied  in  the  instructions  issued 
by  the  Navy  Department  on  the  18th  of  August,  1862,  to  the  naval  com- 
manders of  the  United  States,  and  which  instructions  are  therein  de- 
clared to  be  a  recapitulation  of  those  theretofore  from  time  to  time 
given.  The  substance  of  those  instructions,  so  far  as  they  are  appli- 
cable to  the  present  case,  is,  that  a  vessel  is  not  to  be  seized  "without 
a  search  carefully  made,  so  far  as  to  render  it  reasonable  to  believe 
that  she  is  engaged  in  carrying  contraband  of  war  for  or  to  the  in- 
surgents, and  to  their  ports  directly,  or  indirectly  by  transshipment, 
or  otherwise  violating  the  blockade." 

The  main  feature  of  these  instructions,  so  far  as  they  bear  upon  the 
questions  involved  in  this  case,  is  but  an  application  of  the  doctrine  in 
regard  to  captures  laid  down  by  the  government  of  the  United  States 
at  a  very  early  day.  In  an  ordinance  of  the  Congress  of  tlje  Confed- 
eration, which  went  into  effect  on  the  1st  of  February,  1782  (5  Wheat- 
on,  Appendix,  p.  120),  it  was  declared  to  be  lawful  to  capture  and  to 
obtain  condemnation  of  "all  contraband  goods,  wares,  and  merchan- 
dises, to  whatever  nations  belonging,  although  found  in  a  neutral  bot- 
tom, if  destined  for  the  use  of  an  enemy." 

The  soundness  of  these  principles,  and  the  fact  that  the  law  of  na- 
tions, as  applicable  to  cases  of  prize,  has  been  observed  and  applied  by 
the  government  of  the  United  States  and  its  courts  during  the  present 
war,  was  fully  recognized  by  Earl  Russell,  her  Britannic  Majesty's 
principal  secretary  of  state  for  foreign  affairs,  in  his  remarks  made 
in  the  House  of  Lords  on  the  18th  of  May  last.  Earl  Russell  there 
stated  that  the  judgments  of  the  United  States  prize  courts,  which  had 
been  reported  to  her  Majesty's  government  during  the  present  war, 
did  not  evince  any  disregard  of  the  established  principles  of  interna- 
tional law ;  that  the  law  officers  of  the  crown,  after  an  attentive  con- 
sideration of  Ihe  decisions  which  had  been  laid  before  them,  were  of 
opinion  that  there  was  no  rational  ground  of  complaint  as  to  the 
judgments  of  the  American  prize  courts;  and  that  the  law  of  nations 
in  regard  to  the  search  and  seizure  of  neutral  vessels  had  been  fully 
and  completely  acknowledged  by  the  government  of  the  United  States. 
On  the  same  occasion  Earl  Russell  remarked :  "It  has  been  a  most 
profitable  business  to  send  swift  vessels  to  break  or  run  the  blockade  of 
the  Southern  ports,  and  carry  their  cargoes  into  those  ports.  There  is 
no  municipal  law  in  this  or  any  country  to  punish  such  an  act  as  an 
offence.  I  understand  that  every  cargo  which  runs  the  blockade  and 
enters  Charleston  is  worth  a  million  of  dollars,  and  that  the  profit  on 
these  transactions  is  immense.  It  is  well  known  that  the  trade  has  at- 
tracted a  great  deal  of  attention  in  this  country  from  those  who  have 
a  keen  eye  to  such  gains,  and  that  vessels  have  been  sent  to  Nassau  in 


Ch.  17)  NEUTRAL,  TRADE  WITH  BELLIGERENTS  991 

order  to  break  the  blockade  at  Charleston,  Wilmington,  and  other 
places,  and  carry  contraband  of  war  into  some  of  the  ports  of  the 
Southern  States."  He  added :  "I  certainly  am  not  prepared  to  de- 
clare, nor  is  there  any  ground  for  declaring,  that  the  courts  of  the 
United  States  do  not  faithfully  administer  the  law ;  that  they  will  not 
allow  evidence  making  against  the  captors ;  or  that  they  are  likely  to 
give  decisions  founded,  not  upon  the  law,  but  upon  their  own  passions 
and  national  partialities."  He  also  said,  that  in  a  case  of  simulated 
destination — that  is,  a  vessel  pretending  that  she  is  going  to  Nassau, 
when  she  is  in  reality  bound  to  a  port  of  the  enemy — the  right  of  sei- 
zure exists. 

The  then  Solicitor  General  of  England  (Sir  Roundell  Palmer)  stated, 
in  the  House  of  Commons,  on  the  29th  of  June  last,  referring  to  the 
cases  of  The  Dolphin  and  The  Pearl,  decided  by  the  District  Court  for 
the  Southern  district  of  Florida  (those  vessels  having  been  captured 
while  ostensibly  on  voyages  from  Liverpool  to  Nassau,  and  it  having 
been  held  by  the  court  that  the  intention  of  the  owners  of  the  vessels 
was  that  they  should  only  touch  at  Nassau,  and  then  go  on  and  break 
the  blockade  at  Charleston),  that  "if  the  owners  imagined  that  the 
mere  fact  of  the  vessel  touching  at  Nassau  when  on  such  an  expedition 
exonerated  her,  they  were  very  much  mistaken";  that  the  principles 
of  the  judgment  in  the  case  of  the  Dolphin  "were  to  be  found  in  every 
volume  of  Lord  Stowell's  decisions"  f  that  it  was  well  known  to  every- 
body that  there  was  a  large  contraband  trade  between  England  and 
America  by  way  of  Nassau ;  that  it  was  absurd  to  pretend  to  shut  their 
eyes  to  it ;  and  that  the  trade  with  Nassau  and  Matamoras  had  become 
what  it  was  in  consequence  of  the  war. 

The  Foreign  Office  of  Great  Britain,  in  a  letter  to  the  owner  of  the 
Peterhoff,  on  the  3d  of  April  last,  announced  as  its  conclusion,  after 
having  communicated  with  the  law  officers  of  the  crown,  that  the  gov- 
ernment of  the  United  States  has  no  right  to  seize  a  British  vessel  bona 
fide  bound  from  a  British  port  to  another  neutral  port,  unless  such  ves- 
sel attempts  to  touch  at,  or  has  an  intermediate  or  contingent  destination 
to,  some  blockaded  port  or  place,  or  is  a  carrier  of  contraband  of  war 
destined  for  the  enemy  of  the  United  States;  that  her  Majesty's  gov- 
ernment, however,  cannot,  without  violating  the  rules  of  international 
law,  claim  for  British  vessels  navigating  between  Great  Britain  and 
such  neutral  ports  any  general  exemption  from  the  belligerent  right  of 
visitation  by  the  cruisers  of  the  United  States,  or  proceed  upon  any 
general  assumption  that  such  vessels  may  not  so  act  as  to  render  their 
capture  lawful  and  justifiable ;  that  nothing  is  more  common  than  for 
those  who  contemplate  a  breach  of  blockade  or  the  carriage  of  contra- 
band, to  disguise  their  purpose  by  a  simulated  destination  and  by  de- 
ceptive papers;  and  that  it  has  already  happened,  in  many  cases,  that 
British  vessels  have  been  seized  while  engaged  in  voyages  apparently 
lawful,  and  have  been  afterwards  proved  in  the  prize  courts  to  have 


092  RIGHTS  AND   DUTIES   OF  NATIONS   IN  TIME  OP  WAR         (Part  3 

been  really  guilty  of  endeavoring  to  break  the  blockade,  or  of  carry- 
ing contraband  to  the  enemy  of  the  United  States. 

The  cases  of  The  Stephen  Hart,  The  Springbok  [Fed.  Cas.  No. 
13,264],  The  Peterhoff  [Fed.  Cas.  No.  11,024],  and  The  Gertrude  [Fed. 
Cas.  No.  5,369],  illustrate  a  course  of  trade  which  has  sprung  up  dur- 
ing the  present  war,  and  of  which  this  court  will  take  judicial  cogni- 
zance, as  it  appears  from  its  own  records  and  those  of  other  courts  of 
the  United  States  as  well  as  from  public  reputation.  Those  neutral 
ports  have  suddenly  been  raised  from  ports  of  comparatively  insignifi- 
cant trade  to  marts  of  the  first  magnitude.  Nassau  and  Cardenas  are 
in  the  vicinity  of  the  blockaded  ports  of  the  enemy,  while  Matamoras 
is  in  Mexico,  upon  the  right  banl<  of  the  Rio  Grande,  directly  opposite 
the  town  of  Brownsville,  in  Texas.  The  course  of  trade,  in  respect  to 
Nassau  and  Cardenas,  has  been  generally  to  clear  neutral  vessels,  al- 
most always  under  the  British  flag,  from  English  ports  for  those  places, 
and,  using  them  merely  as  ports  either  of  call  or  of  transshipment, 
to  either  resume  new  voyages  from  them  in  the  same  vessels,  or  to 
transship  their  cargoes  to  fleet  steamers,  with  which  to  run  the  block- 
ade, the  cargoes  being  composed,  in  almost  all  cases,  more  or  less,  of 
articles  contraband  of  war.  The  character  and  course  of  this  trade, 
and  its  sudden  rise,  are  very  properly  commented  upon  in  a  despatch 
from  the  Secretary  of  State  of  the  United  States  to  Lord  Lyons,  of 
the  12th  of  May,  1863. 

The  broad  issue  upon  the  merits  in  this  case  is,  whether  the  ad- 
venture of  the  Stephen  Hart  was  the  honest  voyage  of  a  neutral  ves- 
sel from  one  neutral  port  to  another  neutral  port,  carrying  neutral 
goods  between  those  two  ports  only,  or  was  a  simulated  voyage,  the 
cargo  being  contraband  of  war,  and  being  really  destined  for  the  use 
of  the  enemy,  and  to  be  introduced  into  the  enemy's  country  by  a 
breach  of  blockade  by  the  Stephen  Hart,  or  by  transshipment  from 
her  to  another  vessel  at  Cardenas.  It  is  conceded  in  the  argument 
of  the  leading  counsel  for  the  claimants  that  if  the  property  was  owned 
by  the  enemy,  and  was  fraudulently  on  its  way  to  the  enemy  as  neutral 
property,  it  was  enemy's  property,  and  was  liable  to  capture,  no  matter 
whence  it  came  or  whither  it  was  bound ;  and  that,  if  the  vessel  were 
really  intending  and  endeavoring  to  run  the  blockade,  the  property  was 
liable  to  capture,  no  matter  to  whom  it  belonged  or  what  was  its  char- 
acter ;  but  that  if  it  was  neutral  property,  in  lawful  commerce,  it  was 
safe  from  seizure. 

The  question  whether  or  not  the  property  laden  on  board  of  the 
Stephen  Hart  was  being  transported  in  the  business  of  lawful  com- 
merce, is  not  to  be  decided  by  merely  deciding  the  question  as  to 
whether  the  vessel  was  documented  for,  and  sailing  upon,  a  voyage 
from  London  to  Cardenas.  The  commerce  is  in  the  destination  and 
intended  use  of  the  property  laden  on  board  of  the  vessel,  and  not  in 
the  incidental,  ancillary,  and  temporary  voyage  of  the  vessel,  which 


Cll.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  993 

may  be  but  one  of  many  carriers  through  which  the  property  is  to 
reach  its  true  and  original  destination.  If  this  were  not  the  rule  of  the 
prize  Idw,  a  very  wide  door  would  be  opened  for  fraud  and  evasion.  A 
cargo  of  contraband  goods,  really  intended  for  the  enemy,  might  be 
carried  to  Cardenas  in  a  neutral  vessel  sailing  from  England  with 
papers  which,  upon  their  face,  import  merely  a  voyage  of  the  vessel  to 
Cardenas,  while,  in  fact,  her  cargo,  when  it  left  England,  was  destined 
by  its  owners  to  be  delivered  to  the  enemy  by  being  transshipped  at 
Cardenas  into  a  swifter  vessel.  And  such,  indeed,  has  been  the 
course  of  proceeding  in  many  cases  during  the  present  war.     *     *     * 

The  law  seeks  out  the  truth,  and  never,  in  any  of  its  branches,  tol- 
erates any  such  fiction  as  that  under  which  it  is  sought  to  shield  the 
vessel  and  her  cargo  in  the  present  case.  If  the  guilty  intention,  that 
the  contraband  goods  should  reach  a  port  of  the  enemy,  existed  when 
such  goods  left  their  English  port,  that  guilty  intention  cannot  be  ob- 
literated by  the  innocent  intention  of  stopping  at  a  neutral  port  on  the 
way.  If  there  be,  in  stopping  at  such  port,  no  intention  of  transship- 
ping the  cargo,  and  if  it  is  to  proceed  to  the  enemy's  country  in  the 
same  vessel  in  which  it  came  from  England,  of  course  there  can  be 
no  purpose  of  lawful  neutral  commerce  at  the  neutral  port  by  the  sale 
or  use  of  the  cargo  in  the  market  there;  and  the  sole  purpose  of 
stopping  at  the  neutral  port  must  merely  be  to  have  upon  the  papers  of 
the  vessel  an  ostensible  neutral  terminus  for  the  voyage.  If,  on  the 
other  hand,  the  object  of  stopping  at  the  neutral  port  be  to  transship 
the  cargo  to  another  vessel  to  be  transported  to  a  port  of  the  enemy, 
while  the  vessel  in  which  it  was  brought  from  England  does  not  pro- 
ceed to  the  port  of  the  enemy,  there  is  equally  an  absence  of  all  lawful 
neutral  commerce  at  the  neutral  port ;  and  the  only  commerce  carried 
on  in  the  case  is  that  of  the  transportation  of  the  contraband  cargo 
from  the  English  port  to  the  port  of  the  enemy,  as  was  intended  when 
it  left  the  English  port.  This  court  holds  that,  in  all  such  cases,  the 
transportation  or  voyage  of  the  contraband  goods  is  to  be  considered 
as  a  unit,  from  the  port  of  lading  to  the  port  of  delivery  in  the  enemy's 
country;  that  if  any  part  of  such  voyage  or  transportation  be  unlaw- 
ful, it  is  unlawful  throughout;  and  that  the  vessel  and  her  cargo  are 
subject  to  capture,  as  well  before  arriving  at  the  first  neutral  port  at 
which  she  touches  after  her  departure  from  England,  as  on  the  voyage 
or  transportation  by  sea  from  such  neutral  port  to  the  port  of  the 
enemy.     *     *     * 

One  important  circumstance,  to  show  that  the  cargo  of  the  Stephen 
Hart  was  intended  for  the  enemy,  is  the  fact  that  a  part  of  it  consisted 
of  90,000  buttons,  marked  with  the  initials,  "C.  S.  A.,"  which,  it  is  well 
understood,  stand  for  the  words  "Confederate  States  of  America,"  or 
"Confederate  States  Army,"  the  buttons  being  such  as  are  used  on 
army  clothing  for  the  three  services  of  an  army. 
Scott  Int.Law— 63 


994  RIGHTS  AND   DUTIES   OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

This  review  of  the  facts  in  this  case  leads  to  the  conclusion  that  the 
vessel  and  her  cargo  must  both  of  them  be  condemned.  No  doubt  is 
left  upon  the  mind  that  the  case  is  one  of  a  manifest  attempt  to  intro- 
duce contraband  goods  into  the  enemy's  territory  by  a  breach  of  block- 
ade, for  which  the  vessel  must  be  held  liable  to  forfeiture,  as  well  as 
her  cargo.  Chadwick  was  evidently  employed  by  reason  of  his  being 
a  citizen  of  the  United  States,  familiar  with  the  enemy's  country,  and 
qualified  to  conduct  the  vessel  into  one  of  the  blockaded  ports.  The 
vessel  was  captured  in  a  position  convenient  for  running  the  blockade. 
The  cargo  consisted  of  arms,  munitions  of  war,  and  military  equip- 
ments, and,  among  them,  a  large  quantity  of  military  buttons,  stamped 
in  suqh  a  manner  as  to  render  them  capable  of  no  appropriate  use  save 
for  the  infantry,  cavalry,  and  artillery  of  the  enemy's  army,  thus 
showing  that  the  enemy's  country  was  their  only  appropriate  destina- 
tion. The  absence  of  the  manifest  and  bills  of  lading  is  not  satisfac- 
torily accounted  for,  and  the  want  of  any  invoices  and  of  any  charter- 
party  is  a  circumstance  of  great  weight  against  the  lawfulness  of  the 
commerce.  The  attempt,  by  the  master,  to  suppress  his  letter  of  in- 
structions, and  the  letter  to  Helm,  the  agent  of  the  enemy  in  Cuba,  and 
the  attempt  of  the  mate  to  conceal  the  letters  which  show  that  the  de- 
sign was  that  the  Stephen  Hart  should,  under  his  guidance,  enter  a 
blockaded  port  of  the  enemy,  and  which  also  contain  specific  directions 
for  entering  the  harbor  of  Charleston,  justify  the  conclusion  that 
Charleston,  or  some  other  port  of  the  enemy,  was  the  real  destination 
of  the  vessel  and  her  cargo.  The  absence  of  any  charter-party,  and  of 
any  instructions  from  Harris  to  Captain  Dyett,  and  the  entire  surrender 
by  Harris  of  the  control  of  the  vessel  to  the  laders  of  the  cargo,  and 
to  the  master  as  their  agent,  involve  the  vessel  in  all  the  guilt  which 
attaches  to  the  cargo.  The  object  of  carrying  the  flag  of  the  enemy 
could  only  have  been  that  it  might  be  used  for  the  purpose  of  entering 
the  enemy's  ports — a  conclusion  strengthened  by  the  fact  that  it  was 
thrown  overboard  at  the  time  of  the  capture.  The  charts  found  on 
board  are  charts  of  such  a  character  as  to  enable  a  vessel  to  enter 
many  of  the  blockaded  ports.  The  letter  concealed  by  the  mate,  which 
contains  directions  for  entering  the  harbor  of  Charleston,  is  one 
which  he  had  a  motive  to  preserve  by  concealing,  and  not  to  destroy, 
because,  upon  the  regular  papers  of  the  vessel,  he  must  have  indulged 
the  hope  that  she  would  have  been  permitted,  after  a  search,  to  pro- 
ceed upon  the  voyage  indicated  by  her  papers,  and  thus  that  the  letter 
in  question  would  afterwards  become  useful  on  a  further  voyage  to  the 
port  of  the  enemy.  There  is  an  absence  of  all  papers  and  circum- 
stances to  warrant  the  conclusion  that  there  was  any  intent  to  dispose 
of  the  cargo  at  Cardenas,  in  the  usual  way  of  lawful  commerce.  The 
consignee  of  the  entire  cargo  was  the  agent  of  the  enemy,  and  the 
cargo  was  laden  on  board  by  the  agent  of  the  enemy  in  London.    The 

Scott  Int.Law 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  995 

asserted  ignorance  of  the  master  as  to  the  contents  of  his  cargo,  and  as 
to  the  fact  that  arms  are  contraband  of  war,  and  the  ambiguous  des- 
tination set  out  in  the  shipping  articles,  are  circumstances  which,  with 
many  others,  go  to  swell  the  volume  of  suspicion  attaching  to  the  en- 
terprise. In  addition  to  all  this,  there  is  the  positive  evidence  which 
has  been  referred  to,  particularly  of  Chadwick  and  Nellman,  as  to  the 
actual  destination  of  the  cargo.  All  the  material  facts  of  the  case, 
which  lead  to  a  condemnation,  are  proved  without  any  resort  to  the 
re-examination  either  of  Leisk  or  of  Chadwick. 

This  is  not  a  case  for  further  proof,  and  no  application  has  been 
made  on  the  part  of  the  claimants  to  supply  any  further  proof  as  to 
any  point.  There  must,  therefore,  be  a  decree  condemning  both  ves- 
sel and  cargo  .^^ 


THE  FRAU  HOUWINA.*« 

(Imperial  Prize  Court  of  France,  May  26,  1855.    Sirey,  1855,  pt.  2,  p.  795.) 

Whereas,  the  facts  of  the  case  appear  from  the  documents  and 
pleadings  to  be  as  follows:  That  the  Frau  Houwina,  a  Hanoverian 
vessel.  Captain  Rostee,  which  left  Lisbon  with  Hamburg  as  ostensible 
destination,  was  stopped  November  28  of  last  year  by  the  government 
cruiser  Phenix  eight  miles  out  at  sea,  to  the  west  of  Cape  Roca,  under 
suspicion  of  unlawful  transportation  of  contraband  of  war;  that  the 
vessel  had  on  board  973  sacks  of  crude  Indian  saltpeter,  described  ac- 
cording to  the  manifest  and  bills  of  lading  merely  as  goods ;  that  the 
bills  of  lading  relating  thereto  were  signed  only  by  the  Captain,  and 
indicate  that  the  lading  had  been  made  by  Mr.  Roiz  to  his  own  order 
and  with  Hamburg  as  destination ;  that  these  973  sacks  were  taken 
as  a  whole  from  a  shipment  brought  from  England  to  Lisbon  October 
17  last  by  the  Julius,  from  which  they  had  been  transshipped  to  the 
Frau  Houwina  by  Mr.  Schaltz,  a  dealer  at  Lisbon,  to  whom  they  had 
been  consigned  by  bills  in  the  name  of  John  Esken,  of  London ;  that 
the  exportation  from  England  had  been  effected  by  means  of  three 
custom-house  permits  under  bond  engaging  to  prove  discharge  in  the 
country  of  destination,  and  that  to  fulfill  this  engagement  Schaltz  had 
obtained  from  the  English  consul  at  Lisbon  a  certificate  attesting,  ac- 
cording to  his  declaration,  that  the  said  saltpeter  was  irrtended  for 
consumption  in  that  country  and  was  not  to  be  re-exported;  finally, 
that  this  cargo  of  saltpeter  is  claimed  by  Mr.  Wehner  in  virtue  of  two 
duplicate  bills  of  lading,  indorsed  in  blank  by  Roiz,  as  being  the  prop- 
erty of  neutral  or  allied  subjects  and  destined  to  a  neutral  port; 

As  to  the  law :  Inasmuch  as  saltpeter  is  an  article  susceptible  of 
being  contraband  of  war;  as  contraband  of  war  is  subject  to  seizure 

"Affirmed  on  appeal  in  3  Wall.  559,  38  L.  Ed.  220  (1865). 
*•«  In  Sirey  the  name  of  tiie  vessel  is  spelled  Wrow-Houwina. 


996  RIGHTS   AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 


nder  a  neutral  flag  when  it  belongs  to  the  enemy  or  when  it  is  on  its 
way  to  the  territory,  armies  or  fleets  of  the  enemy ;  as  trade  in  articles 
of  contraband  can  be  presumed  to  be  lawful  only  on  condition  of  being 
carried  on  with  the  utmost  good  faith  and  sincerity,*  and  every  dissimu- 
lation, fraud  or  deceit  connected  therewith  must  of  itself  create  a  pre- 
sumption that  the  trade  is  unlawful ;  and  as  it  is  to  this  commerce  es- 
pecially that  it  is  important  to  apply  strictly  the  principle  of  consider- 
ing as  enemy  property  articles  whose  neutral  or  friendly  ownership  is 
not  proved  by  papers  found  on  board ; 

Applying  these  principles  to  this  case :  Whereas  it  appears  from  the 
evidence,  and  especially  from  the  declarations  of  the  captain,  that  the 
name  of  Roiz,  a  salaried  employee  of  Schaltz,  was  only  borrowed  for 
the  purpose  of  concealing  the  true  owner;  that  therefore  the  proof 
of  neutral  property  is  not  established  by  any  of  the  papers  found  on 
board,  and  that  no  other  neutral  subject  can  be  allowed  to  establish  his 
rights  of  ownership  outside  of  and  inconsistent  with  the  tenor  of  the 
said  papers;  that  the  firm  of  Wienhalt,  Wehner  &  Co.  of  London 
claims  ownership  of  the  saltpeter  by  virtue  of  a  simple  indorsement 
in  blank,  written  on  the  back  of  one  duplicate  original  of  the  bills  of 
lading  above  referred  to ;  that  it  is  clear,  however,  without  examining 
the  value  of  a  blank  indorsement  in  time  of  war  as  regards  contraband 
of  war,  that  Roiz  could  not  confer  upon  anybody  m.ore  rights  than 
he  himself  had ;  nor  thus  do  the  right  of  ownership  and  a  consequent 
friendly  nationality  of  the  saltpeter  appear  from  any  paper  found  on 
board ; 

Whereas,' if  allied  subjects  can  be  allowed  to  establish  their  rights 
of  property  by  other  means  than  ship's  papers,  it  is  by  reason  of  the 
favor  attaching  to  them  in  the  prosecution  of  a  common  war  and  be- 
cause of  the  dissimulation  to  which  their  interests  may  oblige  them  to 
have  recourse  in  order  to  deceive  the  enemy;  but  they  cannot  invoke 
this  privilege  when,  as  in  the  present  case,  they  have  made  use  of 
ruses  evidently  intended  to  deceive  as  well  the  cruisers  of  their  own 
nation  and  those  of  the  allied  power,  and  with  greater  reason  when  it 
appears  from  their  own  assertions,  admitting  them  to  be  sincere,  that 
they  were  engaged  in  an  unlawful  trade  contrary  to  the  laws  of  their 
own  country;  inasmuch  as  the  alleged  commercial  usages  relied  upon 
by  the  claimants  to  explain  these  ruses  cannot  be  applied  in  time  of  war 
to  shipments  of  articles  of  contraband;  and  could  in  no  case  serve  to 
justify  the  interposition  of  mere  salaried  employees  such  as  Roiz; 
and  as  they  can  not  explain  the  dissimulation  in  respect  to  the  character 
of  the  merchandise  on  the  manifest  and  bills  of  lading,  since  the  ship- 
per Schaltz  himself  established  by  his  statements  that  the  shipment 
■•-^s  not  unknown  to  the  commercial  world,  and  had  even  been  brought 
to  his  personal  attention  by  the  Lisbon  newspapers ;  that  there  was 
thus  no  need  to  employ  the  dissimulation  to  assure  secrecy  for  a  law- 


Ch.  17)         NEUTRAL  TRADE  WITH  BELLIGERENTS  997 

ful  commercial  speculation,  and  it  could  have  no  other  purpose  than  to 
elude  the  vigilance  of  the  cruisers  and  for  an  unlawful  operation ; 

Inasmuch  as  to  these  presumptions  of  enemy  ownership,  sufficient 
to  warrrant  confiscation  of  the  saltpeter  seized  on  board  the  Frau  Hou- 
wina,  there  must  also  be  added  those  relating  to  the  destination  of  the 
vessel ;  indeed,  even  if  the  vessel  has  been  released  as  a  neutral,  it  is  not 
a  necessary  consequence  that  the  decision  of  the  Court  admitted  that 
the  neutral  destination  assigned  the  voyage  was  the  true  one,  since  this 
release  would  have  had  to  be  pronounced  also,  under  the  French  regula- 
tions, in  case  the  vessel  was  openly  destined  for  an  enemy  port ;  as  there 
is  ground  for  supposing  that  the  destination  of  Hamburg  was  only  ap- 
parent and  that  the  Frau  Houwina,  after  having  discharged  its  lawful 
cargo  at  that  port,  was  to  proceed  for  an  enemy  Baltic  port,  in  that  fact 
that  its  departure  from  Lisbon  coincided  precisely  with  the  withdrawal 
of  the  allied  fleets,  leaving  the  Russian  ports  unblockaded,  and  that  this 
additional  concealment  on  the  ship's  papers  was  only  a  repetition  of  a 
similar  fraud  by  the  aid  of  which  this  very  vessel  had  been  previously 
sent  from  Lisbon  to  Elsineur  by  the  same  Schaltz  with  a  cargo  destined 
in  fact  for  Russia ;  but  as,  without  reference  to  such  a  supposition, 
the  dispatch  of  the  vessel  for  Hamburg  concealed  according  to  every 
appearance  an  enemy  destination,  if  not  for  the  vessel  at  least  for  the 
cargo,  in  view  of  the  notorious  fact  that  the  city  of  Hamburg  has 
received  in  the  course  of  the  last  year  quantities  of  saltpeter,  either  in 
the  form  of  nitrate  of  potassium  or  sodium  nitrate,  far  exceeding  its 
ordinary  importation;  and  as  in  the  month  of  December  last,  at  the 
very  time  when  the  Frau  Houwina  was  to  be  expected  at  Hamburg, 
efforts  were  made  by  brokers  of  that  city  to  obtain  from  a  shipowner 
of  Liibeck  a  freight  contract  on  a  vessel  bound  for  Russia  with  lead, 
saltpeter,  and  sulphur,  and  as  at  the  end  of  the  following  January  an- 
other shipment  of  lead  and  saltpeter,  which  had  left  Hamburg  by  rail 
for  Konigsberg,  was  dispatched  from  the  latter  town  overland  by 
Russian  sledges  towards  the  Russian  frontier  by  way  of  Kovno  ; 

Inasmuch  as,  to  sum  up,  a  shipment  of  contraband  of  war  prepared 
in  fraud  of  the  political  measures  prescribed  by  an  allied  government 
in  the  interest  of  a  common  war,  continued  under  a  false  name,  with 
dissimulation  on  the  ship's  papers,  and  sent  to  parts  nearer  enemy 
country  and  serving  habitually  as  a  channel  for  provisions  of  the 
enemy,  must  be  made  on  behalf  and  to  the  destination  of  the  enemy, 
and  therefore  confiscation  of  the  articles  seized  should  be  pronounced 
by  application  of  articles  1  and  2  of  the  Regulations  of  July  26,  1778, 
and  article  53  of  the  Decree  of  2  Prairial,  year  XI : 

[The  Prize  Court]  decides:  The  capture  of  the  973  sacks  of 
saltpeter  seized  on  board  the  Hanoverian  ship  Frau  Houwina  by  the 
cruiser  Phenix  of  the  Imperial  Navy  is  declared  valid. 

Prize  Court:     President,  M.  Boulay. 


998  RIGHTS  AND  DUTIES  OF   NATIONS   IN   TIME  OF   WAE         (Part  3 

II.    Ultimate  Dijstinatign 

THE  RANNVEIG. 
(High  Court  of  Justice,  1920.     [1920]  Prob.  177.) 

Action  for  the  condemnation  of  ship  and  cargo.  On  March  6,  1919, 
the  Norwegian  steamship  Rannveig,  bound  from  Trondhjem  to  Stet- 
tin with  a  cargo  of  salted  herrings,  was  captured  by  H.  M.  S.  Vidette, 
and  both  ship  and  cargo  were  put  in  prize. 

Claims  for  release  and  for  damages  and  costs  were  entered  by  the 
owner  of  the  Rannveig  and  by  the  owners  of  the  cargo,  a  German  fish 
distributing  company,  on  the  grounds  that  trade  between  Norway  and 
Germany  in  fish  and  fish  products  had  been  licensed  by  the  Allied  Pow- 
ers, and  that,  as  the  capture  took  place  after  the  armistice  had  been 
concluded  between  the  Allied  Powers  and  Germany,  the  dispatch  of 
foodstuffs  to  a  German  base  of  supply  raised  no  presumption  that  they 
were  intended  for  military  use.  The  Hcense  relied  on  was  an  agree- 
ment concluded  between  the  United  States  of  America  and  Norway  on 
April  30,  1918,  and  assented  to  by  Great  Britain  and  other  Allied  Pow- 
ers, whereby  Norway  agreed  not  to  export  foodstuffs  to  Germany  with 
the  exception  of  fish  and  fish  products  which  it  was  agreed  might  be  ex- 
ported in  quantities  not  exceeding  48,000  tons  per  annum  and  15,000 
tons  in  any  three  months.  The  fish  laden  on  the  Rannveig  was  within 
the  limits  agreed  upon.     *     *     * 

The  President  [Sir  Henry  Duke]  read  the  following  judgment:  *' 
*     *     * 

The  first  question  involved  in  the  decision  of  the  case  is  that  of  the 
efficacy  under  international  law  of  the  agreement  of  April  30,  1918,  and 
the  extent  of  its  operation  as  an  assurance  of  the  allowance  of  the 
Norwegian  trade  with  Germany  in  fish  and  fish  products  to  which  it 
refers.  There  is  no  novelty  in  the  concession  or  recognition  by  treaty 
of  special  trade  privileges  or  immunities  for  a  contracting  party  who 
remains  neutral  as  against  another  contracting  party  who  becomes 
or  is  a  belligerent.  Numerous  treaties  to  which  England  was  party  in 
the  seventeenth  and  eighteenth  centuries  contain  stipulations  of  this 
kind,  and  they  have  been  sometimes  discussed  in  our  Courts.  See  The 
Goede  Hoop  (1809)  Edw.  327;  The  Vryheid  (1778)  Hay  &  Marriott, 
188;  The  Acteon  (1815)  2  Dods.  48;  and  The  Twende  Brodre  (1801) 
4  C.  Rob.  33.  The  sovereign  will  of  the  powers  engaged  affords  the 
only  measure  of  the  possible  extent  of  such  concessions.  A  judge  ex- 
ercising jurisdiction  in  prize  has  only  to  determine  their  meaning  and 
effect  when  they  bear  upon  claims  for  condemnation  or  release ; ,  i.  e., 
for  some  decree  or  relief  which  is  within  the  scope  of  his  authority. 

Treating  the  export  of  fish  by  the  Rannveig,  for  the  moment,  as  an 

■*7  Part  of  the  opiuion  is  omitted. 


Ch.  17)         NEUTRAL  TRADE  WITH  BELLIGERENTS  999 

act  of  trade  by  a  Norwegian  trader,  the  question  which  arises  upon 
the  facts  is  not  whether  the  agreement  is  in  its  terms  effective  to  sanc- 
tion export  of  fish  to  Germany,  but  whether  while  Germany  was  a 
belHgerent  against  the  AlHes  it  was  effective  to  sanction  the  carriage 
of  contraband  to  a  German  base  of  supply.  To  Hcense  such  a  trans- 
action on  the  part  of  an  alien  friend  would  be  to  license  an  unneutral 
act  whereby  he  must  of  necessity  lose  his  character  of  friend.  There 
is  nothing  in  the  terms  of  the  agreement  which  shows  an  intention  to 
authorize  Norwegian  traders  to  do  any  act  inconsistent  with  neutrality. 
The  Norwegian  trade  with  Germany  in  fish  which  is  provided  for  is,  in 
my  opinion,  that  trade  only  which  is  consistent  with  neutrality,  and 
not  trade  which  is  contraband.  Applying  everyday  rules  of  construc- 
tion I  come  to  a  like  conclusion  with  that  which  Sir  James  Marriott  ex- 
pressed in  1778  in  his  judgment  in  The  Vryheid,  Hay  &  Marriott,  188 
— namely,  that  a  treaty  right  to  trade  with  the  enemy  in  goods  which 
conditionally  are  contraband  must  in  the  absence  of  express  stipulation 
be  limited  to  "goods  going  in  the  ordinary  course  of  merchandise  and 
for  mercantile  purposes."  I  therefore  hold  that  the  conveyance  of 
fish  from  Norway  to  Stettin,  so  long  as  foodstuffs  were  conditional  con- 
traband, was  not  by  the  agreement  of  April  30,  1918,  permitted  to 
Norwegian  traders. 

Whether  the  armistice  which  was  concluded  on  November  11,  1918, 
suspended  the  operation  of  the  then  subsisting  proclamations  as  to  con- 
traband can  be  determined  by  reference  to  the  actual  terms  of  the 
armistice  without  entering  upon  any  detailed  discussion  of  the  impli- 
cations which  may  or  must  arise  from  the  conclusion  of  an  armistice. 
Article  26  of  the  terms  of  the  armistice  is  in  these  words:  "The  ex- 
isting blockade  conditions  set  up  by  the  Allied  and  Associated  Powers 
are  to  remain  unchanged,  and  all  German  merchant  ships  found  at 
sea  are  to  remain  liable  to  capture.  The  Allies  and  United  States  con- 
template the  provisioning  of  Germany  during  the  armistice  as  shall  be 
found  necessary."  I  take  it  to  be  a  sound  proposition  that  an  armis- 
tice does  not  necessarily  imply  the  right  to  re-provision  a  beleaguered 
area  or  to  remove  the  blockade  of  a  coast:  see  Hall  (7th  Ed.)  p.  585  ; 
Halleck  (4th  Ed.)  vol.  2,  p.  351,  but  I  think  the  question  need  not  be 
examined  in  this  case,  since  the  terms  here  agreed  upon  preclude  the 
contention  that  the  Allied  Powers  had  conceded  to  Germany  any  priv- 
ilege of  free  importation  of  foodstuffs  to  her  bases  of  supply. 

So  far  as  regarded  traffic  by  sea  to  Stettin  the  armistice  did  not 
grant  anything  to  the  enemy.  Only  by  opening  German  trade  could  it 
have  enlarged  the  rights  reserved  to  Norsvegian  citizens  under  the 
agreement,  and  since  it  did  not  reopen  German  trade  it  is  ineffectual  as 
an  independent  ground  of  immunity  for  the  present  neutral  claimants. 

Whether  a  Norwegian  owner  of  fish  might  have  raised  effectual  ob- 
jection against  rights  by  capture  arising  under  a  blockade  set  up  after 
the  agreement  was  concluded,  I  need  not  consider.     These  claimants 


1000  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

are  not  Norwegian  subjects.  They  were  not  within  any  class  of 
traders  for  whose  benefit  this  agreement  was  made  by  the  Norwegian 
government.  They  are  simply  a  German  corporation  who  had  pur- 
chased foodstuffs  in  Norway  for  the  German  state  and  were  engaged 
in  conveying  the  same  by  sea  to  a  German  base  of  supply.  It  is  hard, 
if  not  impossible,  to  find  any  ground  of  principle  on  which  a  claim  on 
their  part  can  be  founded. 

As  to  the  cargo,  therefore,  I  come  to  the  conclusion  that  the  claim  of 
the  Procurator  General  must  prevail  and  there  must  be  a  decree  of  con- 
demnation of  the  herrings  as  foodstuffs  captured  in  course  of  transit 
to  an  enemy  base. 

The  cargo  of  the  Rannveig  being  contraband,  what  is  the  position  of 
her  owners  ?  They  dispatched  their  ship  not  only  with  full  knowledge 
of  the  character  of  the  burden  and  of  its  destination,  but  after  the  plain- 
est possible  warning  of  the  risks  they  ran  in  so  doing.  There  is  no 
ground  for  the  submission  that  they  were  misled.  Under  such  circum- 
stances none  of  the  considerations  arise  which  relieve  from  the  pen- 
alty of  confiscation  shipowners  who  innocently  carry  contraband.  Hav- 
ing regard  to  the  rule  laid  down  in  The  Hakan  (1918)  A.  C.  148,  it  "is 
my  duty, to  pronounce  condemnation  of  the  Rannveig  as  good  and 
lawful  prize.** 

48  A  Swedish  steamship,  the  Consul  Corfitzon,  was  seized  as  prize  in  an 
EInglish  port,  in  September,  1915,  while  on  a  voyage  from  South  American 
ports  to  Karlskrona,  in  Sweden. 

The  consignee,  a  Swedish  subject,  claimed  the  cargo,  and  alleged  by  his 
affidavit  that  it  had  been  bought  by  him  partly  for  his  tanning  business  in 
Sweden,  and  partly  for  sale  to  customers  in  that  country.  The  question  was 
one  of  ultimate  destination.  If  the  transaction  was  to  end  in  Sweden,  then 
it  was  a  neutral  transaction  from  beginning  to  end.  If,  on  the  contrary,  the 
intention  of  the  consignee  was  to  send  the  cargo,  in  whole  or  in  part,  to  Ger- 
many, the  goods  could  be  seized  before  reaching  Sweden,  by  the  application 
of  the  doctrine  of  continuous  voyage. 

The  Privy  Council,  per  I^rd  Parker  of  Waddington,  in  The  Consul  Corfit- 
zon, L.  R.  [1917]  A.  C.  5.50,  affirmed  the  order  of  the  court  below  for  the  sub- 
mission of  documents  which  would  "throw  light  on  the  nature  and  course  of 
the  appellant's  business  and  the  volume  of  his  trade  with  Germany  for  some 
months  before  the  war  and  since  the  outbreak  of  the  war."  The  question 
being  whether  the  cargo  was  en  route  to  Sweden  or  to  Germany,  the  docu- 
ments were  calculated  to  establish  the  fact  of  destination. 

"The  ease  with  which,  in  the  circumstances  of  the  modern  development  of 
all  sorts  of  transport,  goods  imported  into  a  neutral  country  can  find  their 
way  to  the  enemy  territory,  induced  the  Allies  to  adopt  a  rationing  policy  by 
which  such  imports  were  limited  by  the  average  pre-war  quantities.  In  cases 
where  shipments  to  neutral  countries  adjacent  to  enemy  states  were  found  to 
exceed  considerably  the  statistical  limits,  the  onus  was  thrown  upon  the 
claimants  to  discharge  the  inference  of  hostile  destination. 

"Lord  Sterndale,  in  The  Urna,  April  14,  1919  (transcript  from  the  official 
shorthand  notes),  affirmed  on  appeal  [1920],  36  T.  L.  R.  652,  condemned  a 
cargo  of  dried  fruits  sent  to  Denmark  on  the  ground  that  the  imports  into 
this  country  in  the  year  of  seizure  were  nearly  three  times  higher  the  annual 
average  befox-e  the  war,  and  that  the  claimants  had  not  rebutted  the  presump- 
tion that  the  goods  were  going  to  the  enemy.  And  the  Privy  Council,  in  The 
Baron  Stjernblad,  held  that  it  was  impossible,  in  the  presence  of  a  tenfold 
increase  of  the  imports  of  cocoa  beans  to  Sweden,  to  avoid  suspicion  or  to 
predicate,  with  regard  to  any  particular  shipment,  that  a  considerable  portion 


Ch,  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  1001 

THE  MANUEL  ESPALIU. 

(French  Prize  Court,  1916.    Translated  from  MS.,  Department  of  State.) 

In  the  name  of  the  French  people  the  Prize  Court  has  rendered  the 
following  decision  between: 

On  the  one  hand,  the  captain  and  owners,  shippers  and  consignees 
of  the  cargo  seized  as  contraband  of  war  by  the  French  naval  au- 
thorities on  June  13,  1916,  on  board  the  Spanish  steamer  Manuel 
Espaliu ; 

And,  on  the  other  hand,  the  Minister  of  the  Navy,  acting  in  the 
name  and  as  representative  of  the  State  and  of  the  rightful  claimants 
of  the  proceeds  of  prizes ;     *     *     * 

Considering  the  Orders  of  the  6th  of  Germinal  (March  26),  in  the 
year  8  (1800),  and  of  the  2d  of  Prairial  (May  21),  in  the  year  11  (1803) ; 

Considering  the  Decrees  of  May  9,  1859,  and  November  28,  1861 ; 

Considering  the  Decrees  of  November  6,  1914,  and  of  April  12,  1916, 
relative  to  the  application  of  the  Rules  of  the  Declaration  of  London 
of  1909,  and  in  force  at  the  time  of  seizure  of  the  cargo  Manuel  Es- 
paliu ; 

Considering  the  notifications  relative  to  contraband  of  war  pub- 
lished in  the  Journal  Officiel  of  October  14,  1915,  and  April  27,  1916; 

Considering  the  notice  of  opening  of  prize  proceedings  inserted  in 
the  Journal  Officiel  of  August  12,  1916; 

Considering  the  decision  providing  a  delay,  rendered  by  the  Court 
before  passing  final  judgment,  on  September  14,  1916; 

Having  heard  M.  Chardenet,  Commissioner  of  the  Government,  in 
his  statements  in  support  of  his  aforementioned  motions,  and  M.  Henri 
Fromageot,  member  of  the  Court,  in  his  report: 

The;  Court,  after  due  deliberation : 

Whereas,  on  June  11,  1916,  toward  7  p.  m.,  the  steamer  Manuel 
Espaliu,  under  Spanish  flag,  bound  from  Barcelona  and  Tarragca  to 
Genoa,  after  putting  in  at  Cette,  was  stopped  about  two  miles  south  of 
the  island  of  Port  Cros,  in  the  Mediterranean  Sea,  by  one  of  the  battle- 
ships of  the  French  fleet ; 

Whereas,  in  the  course  of  the  search,  which,  according  to  the  official 

thereof  was  not  destined  to  find  its  way  to  Germany.     (1917)  34  T.  L.  R.  106. 
Cf.  The  Nome  (1921)  37  T.  L.  R.  541. 

"The  same  presumption  was  acted  upon  by  the  French  Prize  Court  in  con- 
fiscatins,'  a  cargo  of  v/ine  on  the  Tiber  consisrnod  to  Denmark  when,  according 
to  the  statistical  evidence,  the  importations  of  wine  into  this  neutral  country, 
in  the  year  under  review,  were  eight  times  higher  than  the  normal  pre-war 
quantity.  (191.S)  Journal  Officiel,  May  19.  1918,  4356.  But,  in  the  case  of  the 
Iberia,  the  court  decreed  release  of  the  goods  to  claimants,  who  proved  that 
the  cargo,  although  exceeding  the  statistical  limits,  was  really  intended  for 
bona  fide  consumption  in  Sweden.  (1919)  Journal  Officiel,  August  11,  1919,  p. 
8492."  C.  J.  Colombos,  "Cargoes  in  the  Prize  Courts  of  Great  Britain,  France, 
Italy  and  Germany."  Journal  of  Comparative  Legislation  and  International 
Law  (3d  Series)  vol.  Ill,  part  IV,  pp.  280,  297,  October,  1921. 


1002  RIGHTS  AND  DUTIES   OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

report,  was  effected  on  June  12,  1916,  in  the  anchorage  of  Lavandon 
because  of  the  roughness  of  the  sea  and  the  darkness,  there  were  found 
on  board  in  the  cargo  five  lots  of  goods,  to  wit:     *     *     * 

Whereas,  it  appears  from  the  documents  communicated  by  the  Min- 
ister of  Foreign  Affairs  and  appended  to  his  aforementioned  despatch 
of  October  11,  1916,  and  especially  from  his  letter  of  March  29,  1916, 
to  the  Director  of  the  Swiss  Economic  Supervision  Company,  that  ac- 
cording to  the  constitution  of  said  company,  commonly  designated  by 
"S.  S.  S."  (Societe  Suisse  de  Surveillance),  whose  object  is  to  guaran- 
tee the  reality  of  final  Swiss  destination  of  goods  imported  into  this 
neutral  country,  it  has  been  agreed  between  the  Swiss  Federal  Govern- 
ment and  the  Allied  Powers  that  when  goods  are  imported  into  Swit- 
zerland from  overseas,  including  goods  from  maritime  countries  of 
Europe,  the  list  of  which  was  published  in  the  Journal  Ofiiciel  of  the 
French  Republic  on  November  15,  1915,  and  March  4,  1916,  they 
should  be  accompanied  by  a  certificate,  issued  by  the  representatives 
of  the  Swiss  government  and  attesting  their  consignment  to  the  S. 
S.  S.;  ■ 

Whereas,  the  goods  found  on  board  the  steamer  Manuel  Espaliu 
constituted  by  their  nature,  on  the  one  hand  (cork,  soap),  articles  of 
absolute  contraband  of  war,  on  the  other  hand  (canned  vegetables), 
articles  of  conditional  contraband  of  war,  according  to  the  provisions 
of  the  aforementioned  notifications  of  October  14,  1915,  and  April  27, 
1916; 

Whereas,  they  are  included  on  the  lists,  likewise  aforementioned,  of 
articles  whose  final  destination  to  Switzerland  should  be  attested  by 
a  certificate  of  consignment  to  the  S.  S.  S.,  in  order  that  the  sincerity 
of  said  destination  may  be  fully  recognized ; 

Whereas,  in  reality  these  goods  were  not  accompanied  by  said  cer- 
tificate ; 

Whereas,  under  these  conditions  of  irregular  shipment  said  goods 
have  been  declared  seized,  according  to  the  official  report  of  June  13, 
1916;     *     *     * 

Whereas,  while  the  irregular  conditions  under  which  said  cargoes 
were  found  on  board  the  Manuel  Espaliu  at  the  time  of  the  search 
could  at  that  time  be  regarded  as  a  sufficient  cause  for  seizure,  it  is 
now  proved  that  the  goods  were  actually  consigned  to  the  Swiss  Eco- 
nomic Supervision  Company  and  that  consequently  they  are  not  in- 
tended for  the  enemy; 

Whereas,  the  seizure  cannot  therefore  be  declared  valid; 

Whereas,  in  compliance  with  the  provisions  regarding  seizures,  as 
laid  down  by  the  Ruling  of  December  23,  1705,  all  expenses  connected 
with  the  prize  must  be  borne  by  the  released  cargo ; 

Decides : 

The  seizure  effected  on  June  13,  1916,  of  goods  found  on  board  the 
steamer  Manuel  Espaliu  as  per  Bills  of  Lading  No.  2,  4,  10  and  13,  is 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  1003 

declared  null,  and  all  expenses  connected  with  said  seizure  are  to  be 
charged  to  the  account  of  said  goods. 

These  goods,  or  in  case  of  requisition,  the  price  of  their  requisition 
or  of  their  sale,  will  be  returned  to  the  rightful  claimants  upon  receipt 
of  proof  establishing  their  claims.     *     *     *  *9 


SECTION  6.— VISIT  AND  SEARCH 


THE  MARIA. 
(High  Court  of  Admiralty,  1799.    1  G.  Rob.  340.) 

Sir  W.  ScoTT.^  This  ship  was  taken  in  the  British  Channel  in 
company  with  several  other  Swedish  vessels  sailing  under  convoy  of 
a  Swedish  frigate,  having  cargoes  of  naval  stores  and  other  produce 
of  Sweden  on  board,  by  a  British  squadron  under  the  command  of 
Commodore  Lawford. 

The  facts  attending  the  capture  did  not  sufficiently  appear  to  the 
court  upon  the  original  evidence;  it  therefore  directed  further  in- 
formation to  be  supplied,  and  by  both  parties. 

The  additional  information  now  brought  in  consists  of  several  at- 

4  9  In  Tlie  Lupus,  Entscheidungen  des  Oberprisengerichts  in  Berlin,  1918,  377 
(1917),  the  Supreme  Prize  Court  of  Berlin  held  that  a  cargo  of  pyrites  car- 
ried upon  the  Norwegian  steamer  Lupus,  en  route  to  Amsterdam,  was  sub.iect 
to  confiscation,  although  the  bills  of  lading  were  to  the  order  of  the  Nether- 
lands Oversea  Trust  Company. 

The  court  was  of  opinion  that  if  the  capture  had  been  made  by  a  British, 
instead  of  a  German  man-of-war,  the  British  Prize  Court  would  have  held 
that  the  pyrites,  from  which  sulphuric  acid  could  be  made,  would  not  have 
remained  in  Holland,  but  would  have  been  exported  to  Germany.  In  addition, 
the  court  was  of  opinion  that  the  Netherlands  Oversea  Trust  Company  had 
"become  entangled  in  obligations  to  such  an  extent  that  they  were  compelled 
under  any  circumstances  to  comply  with  a  request  of  England  to  relinquish 
to  England  goods  imported  into  Dutch  ports,  and  to  subject  these  goods  to  the 
jurisdiction  of  the  English  Prize  Court." 

It  would  appear  from  the  case  of  The  Lupus,  that  the  parties  to  the  World 
War  of  1914-1918,  started  from  the  standpoint  that  enemy  property — whether 
it  be  of  enemy  origin  or  enemy  owned — is  liable  to  capture,  and  that  it  does 
not  cease  to  be  so  liable  until  it  has  reached  the  jurisdiction  of  the  country 
of  ultimate  destination;  that  the  interposition  of  a  neutral  countrj'  is  im- 
material; that  the  voyage  from  the  port  of  departure  to  the  country  of 
ultimate  destination  is  in  the  nature  of  a  continuous  voyage,  however  broken 
or  interrupted  by  passage  through  or  from  a  neutral  port  or  country,  and 
that  therefore  the  property  is  subject  to  capture  in  any  part  of  its  voyage 
provided  it  is  not  at  the  time  of  capture  within  a  neutral  jurisdiction. 

The  principle  of  continuous  voyage,  more  appropriately  called  ultimate  des- 
tination, which  had  hitherto  been  principally  applied  to  shipments  from  a 
neutral  country,  was  extended  to  shipments  from  an  enemy  port  or  country. 
The  neutral  property  of  a  contraband  nature  with  ultimate  destination  to  the 
enemy  or  enemy  property  with  an  ultimate  destination  to  a  neutral  country 
were  alilie  subject  to  capture. 

60  Statement  of  facts  and  parts  of  the  opinion  are  omitted." 


1004  RIGHTS  AND   DUTIES   OF  NATIONS   IN  TIME   OF   WAR         (Part  3 

testations  made  on  the  part  of  the  captors,  and  of  a  copy  of  the  in- 
structions under  which  the  Swedish  frigate  sailed,  transmitted  to  the 
King's  proctor  from  the  office  of  the  British  Secretary  of  State  for 
the  Foreign  Department.  On  the  part  of  the  Swedes  some  attestations 
and  certificates  have  been  introduced,  but  all  of  them  applying  to  col- 
lateral matter,  none  relating  immediately  to  the  facts  of  the  capture. 
On  this  evidence  the  court  has  to  determine  this  most  important  ques- 
tion;  for  its  importance  is  very  sensibly  felt  by  the  court.     *     *     * 

In  forming  that  judgment,  I  trust  that  it  has  not  escaped  my  anxious 
recollection  for  one  moment,  what  it  is  that  the  duty  of  my  station 
calls  for  from  me,  namely,  to  consider  myself  as  stationed  here,  not 
to  deliver  occasional  and  shifting  opinions  to  serve  present  purposes 
of  particular  national  interest,  but  to  administer  with  indifference 
that  justice  which  the  law  of  nations  holds  out,  without  distinction,  to 
independent  states,  some  happening  to  be  neutral  and  some  to  be  bel- 
ligerent. The  seat  of  judicial  authority  is,  indeed,  locally  here,  in  the 
belligerent  country,  according  to  the  known  law  and  practice  of  na- 
tions; but  the  law  itself  has  no  locality.  It  is  the  duty  of  the  person 
who  sits  here  to  determine  this  question  exactly  as  he  would  deter- 
mine the  same  question  if  sitting  at  Stockholm;  to  assert  no  preten- 
sions on  the  part  of  Cireat  Britain  which  he  would  not  allow  to  Sweden 
in  the  same  circumstances,  and  to  impose  no  duties  on  Sweden,  as 
a  neutral  country,  which  he  would  not  admit  to  belong  to  Great  Britain 
in  the  same  character.  If,  therefore,  I  mistake  the  law  in  this  matter, 
I  mistake  that  which  I  consider,  and  which  I  mean  should  be  con- 
sidered, as  the  universal  law  upon  the  question ;  a  question  regarding 
one  of  the  most  important  rights  of  belligerent  nations  relatively  to 
neutrals. 

The  only  special  consideration  which  I  shall  notice  in  favor  of 
Great  Britain  (and  which  I  am  entirely  desirous  of  allowing  to  Sweden 
in  the  same  or  similar  circumstances)  is,  that  the  nature  of  the  present 
war  does  give  this  country  the  rights  of  war,  relatively  to  neutral 
states,  in  as  large  a  measure  as  they  have  been  regularly  and  legally 
exercised,  at  any  period  of  modern  and  civilized  times.  Whether  I 
estimate  the  nature  of  the  war  justly,  I  leave  to  the  judgment  of  Eu- 
rope, when  I  declare  that  I  consider  this  as  a  war  in  which  neutral 
states  themselves  have  an  interest  much  more  direct  and  substantial 
than  they  have  in  the  ordinary,  limited,  and  private  quarrels  (if  I  may 
so  call  them)  of  Great  Britain  and  its  great  public  enemy.  That  I  have 
a  right  to  advert  to  such  considerations,  provided  it  be  done  with  so- 
briety and  truth,  cannot,  I  think,  reasonably  be  doubted;  and  if  au- 
thority is  required,  I  have  authority— and  not  the  less  weighty  in  this 
question  for  being  Swedish  authority — I  mean  the  opinion  of  that  dis- 
tinguished person,  one  of  the  most  distinguished  which  that  country 
(fertile  as  it  has  been  of  eminent  men)  has  ever  produced;    I  mean 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  1005 

Baron  Puffendorff."  The  passage  to  which  I  allude  is  to  be  found  in 
a  note  of  Barbeyrac's,  on  his  larger  work,  L.  viii,  c.  6,  §  8.  Puffen- 
dorff  had  been  consulted  in  the  beginning  of  the  present  century,  when 
England  and  other  states  were  engaged  in  the  confederacy  against 
Louis  XIV,  by  a  lawyer  upon  the  Continent,  Groningius,  who  was  de- 
sirous of  supporting  the  claims  of  neutral  commerce  in  a  treatise  which 
he  was  then  projecting.  Puffendorff  concludes  his  answer  to  him  in 
these  words : 

"I  am  not  surprised  that  the  northern  powers  should  consult  the 
general  interest  of  all  Europe  without  regard  to  the  complaints  of 
some  greedy  merchants,  who  care  not  how  things  go,  provided  they 
can  but  satisfy  their  thirst  of  gain.  These  princes  wisely  judge  that 
it  would  not  become  them  to  take  precipitate  measures  whilst  other 
nations  are  combining  their  whole  force  to  reduce  within  bounds  an  in- 
solent and  exorbitant  power  which  threatens  Europe  with  slavery  and 
the  Protestant  religion  with  destruction.  This  being  the  interest  of 
the  northern  crowns  themselves,  it  is  neither  just  nor  necessary  that, 
for  the  present  advantage,  they  should  interrupt  so  salutary  a  de- 
sign, especially  as  they  are  at  no  expense  in  the  affair,  and  run  no 
hazard."  In  the  opinion,  then,  of  this  wise  and  virtuous  Swede,  the 
nature  and  purpose  of  a  war  was  not  entirely  to  be  omitted  in  the  con- 
sideration of  the  warrantable  exercise  of  its  rights  relatively  to  neu- 
tral states.  His  words  are  memorable.  I  do  not  overrate  their  im- 
portance when  I  pronounce  them  to  be  well  entitled  to  the  attention  of 
his  country.     *     *     * 

In  considering  the  case,  I  think  it  will  be  advisable  for  me,  first,  to 
state  the  facts  as  they  appear  in  the  evidence;  secondly,  to  lay  down 
the  principles  of  law  which  apply  generally  to  such  a  state  of  facts ; 
thirdly,  to  examine  whether  any  special  circumstances  attended  the 
transaction  in  any  part  of  it  which  ought  in  any  manner  or  degree  to 
affect  the  application  of  these  principles. 

The  facts  of  the  capture  are  to  be  learnt  only  from  the  captors,  for, 
as  I  have  observed,  the  claimants  have  been  entirely  silent  about  them, 
and  that  silence  gives  the  strongest  confirmation  to  the  truth  of  the 
accounts  delivered  by  the  captors.  *  *  *  What  then  do  these  at- 
testations (uncontradicted  attestations)  prove?  To  my  apprehension 
they  prove  most  clearly  these  facts : 

That  a  large  number  of  vessels,  connected  all  together  with  each 
other,  and  with  a  frigate  which  convoyed  them,  being  bound  to  different 
ports  in  the  Mediterranean,  some  declared  to  be  enemy's  ports  and 
others  not,  with  cargoes  consisting,  amongst  other  things,  of  naval 
stores,  were  met  with,  close  upon  the  British  coast,  by  his  Britannic 

51  Puffendorff  was  not  actually  born  in  Sweden,  but  is  usually  claimed  and 
allowed  as  a  writer  of  that  country,  from  his  employment  in  it  under  the 
king  of  Sweden.  The  jn-eat  work  on  which  his  fame  is  principally  built,  was 
given  to  the  world  during  his  residence  in  that  country. 


1006  RIGHTS  AND   DUTIES   OF  NATIONS   IN  TIME  OP   WAR         (Part  3 

Majesty's  cruisers ;  that  a  continued  resistance  was  given  by  the 
frigate  to  the  act  of  boarding  any  of  these  vessels  by  the  British  cruis- 
ers, and  that  extreme  violence  was  threatened  in  order  to  prevent  it,  and 
that  the  violence  was  prevented  from  proceeding  to  extremities  only 
by  the  superior  British  force  which  overawed  it;  that  the  act  being 
effected  in  the  night,  by  the  prudence  of  the  British  commander,  the 
purpose  of  hostile  resistance,  so  far  from  being  disavowed,  was  main- 
tained to  the  last,  and  complaint  made  that  it  had  been  eluded  by  a 
stratagem  of  the  night;  that  a  forcible  recapture  of  one  vessel  took 
place,  and  a  forcible  capture  and  detention  of  one  British  officer  who 
was  on  board  her;  and  who,  as  I  understand  the  evidence,  was  not 
released  till  the  superiority  of  the  British  force  had  awed  this  Swedish 
frigate  into  something  of  a  stipulated  submission. 

So  far  go  the  general  facts.  But  all  this,  it  is  said,  might  be  the 
ignorance  or  perverseness  of  the  Swedish  officer  of  the  frigate — the 
folly  or  the  fault  of  the  individual  alone.     *     *     * 

Whatever  then  was  done  upon  this  occasion  was  not  done  by  the  un- 
advised rashness  of  one  individual,  but  it  was  an  instructed  and  pre- 
meditated act — an  act  common  to  all  the  parties  concerned  in  it;  and 
of  which  every  part  belongs  to  all ;  and  for  which  all  the  parties,  being 
associated  with  one  common  intent,  are  legally  and  equitably  answer- 
able. 

This  being  the  actual  state  of  the  fact,  it  is  proper  for  me  to  exam- 
ine, 2dly,  what  is  their  legal  state,  or,  in  other  words,  to  what  con- 
siderations they  are  justly  subject  according  to  the  law  of  nations ; 
for  which  purpose  I  state  a  few  principles  of  that  system  of  law  which 
I  take  to  be  incontrovertible. 

1st.  That  the  right  of  visiting  and  searching  merchant  ships  upon 
the  high  seas,  whatever  be  the  ships,  whatever  be  the  cargoes,  whatever 
be  the  destinations,  is  an  incontestible  right  of  the  lawfully  commis- 
sioned cruisers  of  a  belligerent  nation.  I  say,  be  the  ships,  the  cargoes, 
and  the  destinations  what  they  may,  because,  till  they  are  visited  and 
searched,  it  does  not  appear  what  the  ships,  or  the  cargoes,  or  the 
destinations  are ;  and  it  is  for  the  purpose  of  ascertaining  these  points 
that  the  necessity  of  this  right  of  visitation  and  search  exists.  This 
right  is  so  clear  in  principle,  that  no  man  can  deny  it  who  admits  the 
legality  of  maritime  capture;  because  if  you  are  not  at  liberty  to 
ascertain  by  sufficient  inquiry  whether  there  is  property  that  can  legally 
be  captured,  it  is  impossible  to  capture.  Even  those  who  contend  for 
the  inadmissible  rule,  that  free  ships  make  free  goods,  must  admit 
the  exercise  of  this  right  at  least  for  the  purpose  of  ascertaining 
whether  the  ships  are  free  ships  or  not.  The  right  is  equally  clear  in 
practice;  for  practice  is  uniform  and  universal  upon  the  subject.  The 
many  European  treaties  which  refer  to  this  right,  refer  to  it  as  pre- 
existing, and  merely  regulate  the  exercise  of  it.  All  writers  upon  the 
law  of  nations  unanimously  acknowledge  it,  without  the  exception  even 


\ 


Ch.  17)         NEUTRAL  TRADE  WITH  BELLIGERENTS  1007 

of  Hubner  himself,  the  great  champion  of  neutral  privileges.  In  short, 
no  man  in  the  least  degree  conversant  in  subjects  of  this  kind  has  ever, 
that  I  know  of,  breathed  a  doubt  upon  it.  The  right  must  unquestion- 
ably be  exercised  with  as  little  of  personal  harshness  and  of  vexation 
in  the  mode  as  possible;  but  soften  it  as  much  as  you  can,  it  is  still  a 
right  of  force,  though  of  lawful  force — something  in  the  nature  of 
civil  process,  where  force  is  employed,  but  a  lawful  force,  which  can- 
not lawfully  be  resisted.  For  it  is  a  wifd  conceit  that  wherever  force 
is  used,  it  may  be  forcibly  resisted;  a  lawful  force  cannot  lawfully  be 
resisted.  The  only  case  where  it  can  be  so  in  matters  of  this  nature,  is 
in  the  state  of  war  and  conflict  between  two  countries  where  one 
party  has  a  perfect  right  to  attack  by  force,  and  the  other  has  an 
equally  perfect  right  to  repel  by  force.  But  in  the  relative  situation 
of  two  countries  at  peace  with  each  other,  no  such  conflicting  rights 
can  possibly  coexist. 

2dly.  That  the  authority  of  the  sovereign  of  the  neutral  country  be- 
ing interposed  in  any  manner  of  mere  force  cannot  legally  vary  the 
rights  of  a  lawfully  commissioned  belHgerent  cruiser.  I  say  legally,  be- 
cause what  may  be  given,  or  Ue  fit  to  be  given,  in  the  administration  of 
this  species  of  law,  to  considerations  of  comity  or  of  national  policy, 
are  views  of  the  matter  which,  sitting  in  this  court,  I  have  no  right 
to  entertain.  All  that  I  assert  is,  that  legally  it  cannot  be  maintained, 
that  if  a  Swedish  commissioned  cruiser,  during  the  wars  of  his  own 
country,  has  a  right  by  the  law  of  nations  to  visit  and  examine  neutral 
ships,  the  king  of  England,  being  neutral  to  Sweden,  is  authorized  by 
that  law  to  obstruct  the  exercise  of  that  right  with  respect  to  the  mer- 
chant ships  of  his  country.  I  add  this,  that  I  cannot  but  think  that  if 
he  obstructed  it  by  force,  it  would  very  much  resemble  (with  all  due 
reverence  be  it  spoken)  an  opposition  of  illegal  violence  to  legal  right. 
Two  sovereigns  may  unquestionably  agree,  if  they  think  fit  (as  in  some 
late  instances  they  have  agreed),  by  special  covenant,  that  the  presence 
of  one  of  their  armed  ships  along  with  their  merchant  ships  shall  be 
mutually  understood  to  imply  that  nothing  is  to  be  found  in  that  convoy 
of  merchant  ships  inconsistent  with  amity  or  neutrality;  and  if  they 
consent  to  accept  this  pledge,  no  third  party  has  a  right  to  quarrel  with 
it  any  more  than  with  any  other  pledge  which  they  may  agree  mutu- 
ally to  accept.  But  surely  no  sovereign  can  legally  compel  the  ac- 
ceptance of  such  a  security  by  mere  force. 

The  only  security  known  to  the  law  of  nations  upon  this  subject,  in- 
dependent of  all  special  covenant,  is  the  right  of  personal  visitation 
and  search,  to  be  exercised  by  those  who  have  the  interest  in  making  it. 
I  am  not  ignorant,  that  amongst  the  loose  doctrines  which  modern 
fancy,  under  the  various  denominations  of  philosophy  and  philan- 
thropy, and  I  know  not  what,  have  thrown  upon  the  world,  it  has 
been  within  these  few  years  advanced,  or  rather  insinuated,  that  it 
might  possibly  be  well  if  such  a  security  were  accepted.     Upon  such 


1008  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME  OF   WAR         (Part  3 

unauthorized  speculations  it  is  not  necessary  for  me  to  descant.  The 
law  and  practice  of  nations  (I  include  partially  the  practice  of  Sweden 
when  it  happens  to  be  belligerent)  give  them  no  sort  of  countenance ; 
and  until  that  law  and  practice  are  new-modelled  in  such  a  way  as 
may  surrender  the  known  and  ancient  rights  of  some  nations  to  the 
present  convenience  of  other  nations  (which  nations  may  perhaps  re- 
member to  forget  them,  when  they  happen  to  be  themselves  belligerent) 
no  reverence  is  due  to  them ;  they  are  the  elements  of  that  system 
which,  if  it  is  consistent,  has  for  its  real  purpose  an  entire  abolition  of 
capture  in  war — that  is,  in  other  words,  to  change  the  nature  of  hos- 
tility, as  it  has  ever  existed  amongst  mankind,  and  to  introduce  a  state 
of  things  not  yet  seen  in  the  world,  that  of  a  military  war  and  a  com- 
mercial peace.  If  it  were  fit  that  such  a  state  should  be  introduced,  it 
is  at  least  necessary  that  it  should  be  introduced  in  an  avowed  and 
intelligible  manner,  and  not  in  a  way  which,  professing  gravely  to 
adhere  to  that  system  which  has  for  centuries  prevailed  among  civiHzed 
states,  and  urging  at  the  same  time  a  pretension  utterly  inconsistent 
with  all  its  known  principles,  delivers  over  the  whole  matter  at  once 
to  eternal  controversy  and  conflict,  at  the  expense  of  the  constant  haz- 
ard of  the  harmony  of  states,  and  of  the  lives  and  safeties  of  innocent 
individuals. 

3dly.  That  the  penalty  for  the  violent  contravention  of  this  right  is 
the  confiscation  of  the  property  so  withheld  from  visitation  and  search. 
For  the  proof  of  this  I  need  only  refer  to  Vattel,  one  of  the  most 
correct  and  certainly  not  the  least  indulgent  of  modern  professors  of 
public  law.^~     *     *     * 

&2  In  The  Schooner  Nancy,  27  Ct.  CI.  99  (1892),  the  court,  per  Judge  Davis. 
held  that  it  had  not  been  directly  determined  whether  a  neutral  vessel  laden 
with  a  neutral  cargo  is  liable  to  condemnation  if  captured  under  enemy  con- 
voy. On  a  review  of  the  cases  and  of  the  writings  of  publicists,  the  court  held 
that  such  a  vessel  is  liable  to  capture  if  actually  and  voluntarily  under  the 
protection  of  an  enemy. 

In  The  Ship  Rose,  36  Ct.  CI.  290  (1901),  it  appeared  that  the  ship  resisted 
search.     The  court  held,  according  to  the  headnote,  that: 

"Grave  apprehension  of  illegal  condemnation  will  not  justify  a  neutral 
vessel  in  resisting  the  right  of  search  by  a  belligerent,"  and  that  "forcible 
resistance  is  good  ground  for  condemnation,  except  in  cases  where  a  neutral 
is  justified  in  defending  against  extreme  violence  threatened  by  a  cruiser 
grossly  abusing  his  commission." 

In  the  case  of  The  Schooner  Endeavor,  44  Ct.  CI.  242  (1909),  it  was  held 
that  a  vessel  which  had  illegally  resisted  search  and  escaped,  remained  liable 
to  condemnation  if  captured  by  another  privateer  on  the  same  voyage.  The 
opinion  of  Chief  Justice  Peelle  reviews  the  authorities  and  is  a  valuable  di- 
gest case. 

The  Hipsang,  a  British  and  therefore  a  neutral  steamer,  carrying  a  cargo 
of  beans  and  bean  cake,  was  ordered  to  stop  by  a  Russian  destroyer,  and 
eventually  sunk  by  a  torpedo.  The  case  having  been  heard  by  the  Libau 
Prize  Court,  before  all  the  available  evidence  had  been  taken  the  Supreme 
Court  ordered  a  new  hearing.  Upon  all  the  evidence,  old  and  new,  the  court 
found  that  the  Hipsang  had  refused  to  obey  the  order  to  stop  and  endeavored 
to  escape,  and  that  shots  had  been  fired  at  the  destroyer.  Held,  on  these  facts, 
that  the  action  of  the  commander  of  the  destroyer  was  correct.  The  Hip- 
sang (1910)  1  Hurst  and  Bray's  Russian  and  Japanese  Prize  Cases  (1912)   21. 


Ch.  17)         NEUTRAL  TRADE  WITH  BELLIGERENTS  1009 

THE  MARIANNA  FLORA. 

(Supreme  Court  of  the  United  States,  1826.    11  Wheat.  1,  6  L.  Ed.  405.) 

Story,  Justice,  delivered  the  opinion  of  the  court.^^     *     *     * 

In  considering  the  circumstances,  the  court  has  no  difficulty  in  de- 
ciding that  this  is  not  a  case  of  a  piratical  aggression,  in  the  sense  of 
the  act  of  Congress.  The  Portuguese  ship,  though  armed,  was  so  for  a 
purely  defensive  mercantile  purpose.  She  was  bound  homewards  with 
a  valuable  cargo  on  board,  and  could  have  no  motive  to  engage  in  any 
piratical  act  or  enterprise.  It  is  true,  that  she  made  a  meditated,  and, 
in  a  sense,  a  hostile  attack,  upon  the  Alligator,  with  the  avowed  inten- 
tion of  repelling  her  approach,  or  of  crippling  or  destroying  her.  But 
there  is  no  reason  to  doubt,  that  this  attack  was  not  made  with  a 
piratical  or  felonious  intent,  or  for  the  purpose  of  wanton  plunder,  or 
malicious  destruction  of  property.  It  was  done  upon  a  mistake  of  the 
facts,  under  the  notion  of  just  self-defense,  against  what  the  master 
very  imprudently  deemed  a  piratical  cruiser.  The  combat  was,  there- 
fore, a  combat  on  mutual  misapprehension ;  and  it  ended  without  any 
of  those  calamitous  consequences  to  life  which  might  have  brought 
•  very  painful  considerations  before  the  court. 

It  has,  indeed,  been  argued  at  the  bar,  that  even  if  this  attack  had 
been  a  piratical  aggression,  it  would  not  have  justified  the  capture  and 
sending  in  of  the  ship  for  adjudication,  because  foreign  ships  are  not  to 
be  governed  by  our  municipal  regulations.  But  the  act  of  Congress  is 
decisive  on  this  subject.  It  not  only  authorizes  a  capture,  but  a  con- 
demnation in  our  courts,  for  such  aggressions ;  and  whatever  may  be 
the  responsibility  incurred  by.  the  nation  to  foreign  powers,  in  execut- 
ing such  laws,  there  can  be  no  doubt  that  courts  of  justice  are  bound 
to  obey  and  administer  them. 

The  other  count,  which  seeks  condemnation  on  the  ground  of  an 
asserted  hostile  aggression,  admits  of  a  similar  answer.  It  proceeds 
upon  the  principle,  that,  for  gross  violations  of  the  law  of  nations  on 
the  high  seas,  the  penalty  of  confiscation  may  be  properly  inflicted 
upon  the  offending  property.  Supposing  the  general  rule  to  be  so  in 
ordinary  cases  of  property  taken  in  delicto,  it  is  not,  therefore,  to  be 
admitted,  that  every  ofifence,  however  small,  however  done  under  a 
mistake  of  rights,  or  for  purposes  wholly  defensive,  is  to  be  visited 
with  such  harsh  punishments.  Whatever  may  be  the  case,  where  a 
gross,  fraudulent,  and  unprovoked  attack  is  made  by  one  vessel  upon 
another  upon  the  sea,  which  is  attended  with  grievous  loss  or  injury, 
such  effects  are  not  to  be  attributed  to  lighter  faults,  or  common  negli- 
gence.    It  may  be  just,  in  such  cases,  to  award  to  the  injured  party 

53  The  facts  of  the  case,  the  question  of  damages,  and  part  of  the  opiuion 
are  omitted. 

Scott  Int.Law— 64 


1010  RIGHTS  AND  DUTIES   OF  NATIONS  IN  TIME  OP  WAR         (Part  3 

full  compensation  for  his  actual  loss  and  damage;  but  the  infliction  of 
any  forfeiture  beyond  this  does  not  seem  to  be  pressed  by  any  con- 
siderations derived  from  public  law.     *     *     * 

In  considering  these  points,  it  is  necessary  to  ascertain  what  are  the 
rights  and  duties  of  armed  and  other  ships,  navigating  the  ocean  in 
time  of  peace.  It  is  admitted,  that  the  right  of  visitation  &nd  search 
does  not,  under  such  circumstances,  belong  to  the  public  ships  of  any 
nation.  This  right  is  strictly  a  belligerent  right,  allowed  by  the 
general  consent  of  nations  in  time  of  war,  and  limited  to  those  occa- 
sions. It  is  true,  that  it  has  been  held  in  the  courts  of  this  country, 
that  American  ships,  offending  against  our  laws,  and  foreign  ships,  in 
like  manner,  offending  within  our  jurisdiction,  may,  afterwards,  be 
pursued  and  seized  upon  the  ocean,  and  rightfully  brought  into  our 
ports  for  adjudication.  This,  however,  has  never  been  supposed  to 
draw  after  it  any  right  of  visitation  or  search.  The  party,  in  such 
case,  seizes  at  his  peril.  If  he  establishes  the  forfeiture,  he  is  justified. 
If  he  fails,  he  must  make  full  compensation  in  damages. 

Upon  the  ocean,  then,  in  time  of  peace,  all  possess  an  entire  equality. 
It  is  the  common  highway  of  all,  appropriated  to  the  use  of  all ;  and  no 
one  can  vindicate  to  himself  a  superior  or  exclusive  prerogative  there. 
Every  ship  sails  there  with  the  unquestionable  right  of  pursuing  her 
own  lawful  business  without  interruption ;  but,  whatever  m.ay  be  that 
business,  she  is  bound  to  pursue  it  in  such  a  manner  as  not  to  violate 
the  rights  of  others.  The  general  maxim  in  such  cases  is,  "sic  utere 
tuo,  ut  non  alienum  Isedas." 

It  has  been  argued,  that  no  ship  has  a  right  to  approach  another  at 
sea;  and  that  every  ship  has  a  right  to  draw  round  her  a  line  of  juris- 
diction, within  which  no  other  is  at  liberty  to  intrude.  In  short,  that 
she  may  appropriate  so  much  of  the  ocean  as  she  may  deem  necessary 
for  her  protection,  and  prevent  any  nearer  approach. 

This  doctrine  appears  to  us  novel,  and  is  not  supported  by  any  au- 
thority. It  goes  to  establish  upon  the  ocean  a  territorial  jurisdiction, 
like  that  which  is  claimed  by  all  nations  within  cannon  shot  of  their 
shores,  in  virtue  of  their  general  sovereignty.  But  the  latter  right  is 
founded  upon  the  principle  of  sovereign  and  permanent  appropriation, 
and  has  never  been  successfully  asserted  beyond  it.  Every  vessel 
undoubtedly  has  a  right  to  the  use  of  so  much  of  the  ocean  as  she 
occupies,  and  as  is  essential  to  her  own  movements.  Beyond  this, 
no  exclusive  right  has  ever  yet  been  recognized,  and  we  see  no  reason 
for  admitting  its  existence.  Merchant  ships  are  in  the  constant  habit 
of  approaching  each  other  on  the  ocean,  either  to  relieve  their  own 
distress,  to  procure  information,  or  to  ascertain  the  character  of 
strangers ;  and,  hitherto,  there  has  never  been  supposed  in  such 
conduct  any  breach  of  the  customary  observances,  or  of  the  strictest 
principles  of  the  law  of  nations.    In  respect  to  ships  of  war  sailing,  as 

Scott  Int.Law 


Ch.  17)         NEUTRAL  TRADE  WITH  BELLIGERENTS  1011 

in  the  present  case,  under  the  authority  of  their  government,  to  arrest 
pirated,  and  other  public  offenders,  there  is  no  reason  why  they  may 
not  approach  any  vessels  descried  at  sea,  for  the  purpose  of  ascertain- 
ing their  real  characters.  Such  a  right  seems  indispensable  for  the 
fair  and  discreet  exercise  of  their  authority ;  and  the  use  of  it  cannot 
be  justly  deemed  indicative  of  any  design  to  insult  or  injure  those  they 
approach,  or  to  impede  them  in  their  lawful  commerce.  On  the  other 
hand,  it  is  as  clear,  that  no  ship  is,  under  such  circumstances,  bound 
to  lie  by,  or  wait  the  approach  of  any  other  ship.  She  is  at  full  liberty 
to  pursue  her  voyage  in  her  own  way,  and  to  use  all  necessary  precau- 
tions to  avoid  any  suspected  sinister  enterprise  or  hostile  attack.  She 
has  a  right  to  consult  her  own  safety ;  but,  at  the  same  time,  she  must 
take  care  not  to  violate  the  rights  of  others.  She  may  use  any  precau- 
tions dictated  by  the  prudence  or  fears  of  her  officers ;  either  as  to  de- 
lay, or  the  progress  or  course  of  her  voyage ;  but  she  is  not  at  liberty  to 
inflict  injuries  upon  other  innocent  parties,  simply  because  of  con- 
jectural dangers.  These  principles  seem  to  us  the  natural  result  of  the 
common  duties  and  rights  of  nations  navigating  the  ocean  in  time  of 
peace.  Such  a  state  of  things  carries  with  it  very  different  obligations 
and  responsibilities  from  those  which  belong  to  public  war,  and  is  not 
to  be  confounded  with  it. 

The  first  inquiry,  then,  is,  whether  the  conduct  of  Lieutenant  Stock- 
ton was,  under  all  the  circumstances  preceding  and  attending  the  com- 
bat, justifiable.     *     *     * 

Upon  the  whole,  we  are  of  opinion,  that  the  conduct  of  Lieutenant 
Stockton,  in  approaching,  and  ultimately,  in  subduing  the  Marianna 
Flora,  was  entirely  justifiable.  The  first  wrong  was  done  by  her,  and 
his  own  subsequent  acts  were  a  just  defence  and  vindication  of  the 
rights  and  honor  of  his  country. 

The  next  inquiry  is,  whether  the  act  of  sending  in  the  Marianna 
Flora  for  adjudication,  was,  under  all  the  circumstances,  unjustifiable, 
so  as  to  carry  with  it  responsibility  in  damages.     *     *     * 

Upon  the  whole,  it  is  the  opinion  of  the  court,  that  the  decree  of  the 
circuit  court  ought  to  be  affirmed,  and  it  is,  accordingly,  affirmed,  with- 
out costs  to  either  party. 

Decree  accordingly. 


1012  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

SECTION  7.— EMPLOYMENT  OF  ARMED  VESSELS 


THE  FANNY. 

(High  Court  of  Admiralty,  1814.     1  Dod.  443.) 

This  was  a  question  of  salvage  upon  neutral  (Portuguese)  prop- 
erty, on  board  a  British  armed  ship,  which  had  been  taken  by  an  Amer- 
ican schooner,  and  was  afterwards  retaken  by  one  of  his  Majesty's 
ships  of  war.  The  vessel  sailed  on  her  outward  voyage,  under  con- 
voy, with  a  cargo  from  Liverpool  to  Rio  de  Janeiro,  where  the  mas- 
ter increased  his  crew,  by  hiring  thirty  additional  men,  for  the  pur- 
pose of  fighting  his  way  horne  without  the  protection  of  convoy,  which 
he  had  obtained  permission  to  do  from  the  British  admiral  command- 
ing on  that  station.  The  ship  was  furnished  with  a  letter  of  marque, 
had  sixteen  guns  mounted,  with  small  arms  and  ammunition  in  pro- 
portion. On  her  return  voyage,  with  a  cargo  consisting  partly  of  Por- 
tuguese and  partly  of  British  property,  she  was  captured  on  the  17th 
of  April,  1814,  by  the  American  schooner,  General  Armstrong,  but 
did  not  surrender  till  after  a  very  severe  action,  in  which  the  mate  was 
killed  and  several  of  the  seamen,  and  the  merchant  himself,  who  hap- 
pened to  be  on  board,  was  dangerously  wounded.  The  ship  and  cargo 
were  recaptured  on  the  10th  of  May,  1814,  by  his  Majesty's  ship. 
Sceptre,  and  for  this  service  a  salvage  was  demanded  upon  the  Portu- 
guese, as  well  as  the  British  property.  The  demand  for  salvage  was 
resisted  on  the  part  of  the  Portuguese  owners.     *     *     * 

Sir  W.  Scott.  This  ship,  having  a  commission  for  war,  but  employ- 
ed, likewise,  for  purposes  of  commerce,  sailed  under  the  protection 
of  a  British  convoy,  from  Liverpool  to  Rio  de  Janeiro,  and  there  ob- 
tained permission  from  the  admiral  on  the  station  to  return  home 
without  convoy.  Thirty  men  were  hired,  and  some  additional  guns 
were  put  on  board,  for  the  express  purpose  of  enabling  the  ship  to 
fight  her  way  home ;  and  it  was  upon  the  prospect  of  her  being  com- 
petent to  defend  herself  that  the  admiral  permitted  her  to  sail  with- 
out convoy.  The  fact  of  her  being  armed  must  have  been  notorious  at 
Rio  de  Janeiro,  and  consequently  within  the  knowledge  of  the  mer- 
chants who  put  their  goods  on  board.  It  appears,  that  the  ship  actual- 
ly sustained  an  engagement,  for  the  witness  says,  that  "she  did  not 
surrender  till  after  a  very  severe  action  of  fifty-five  minutes,  during 
which  many  guns  were  fired  on  both  sides,  and  the  ship  had  her  sec- 
ond mate  killed,  four  men  dangerously  wounded,  as  was  also  the  mer- 
chant himself,  \yho  happened  to  be  on  board,  and  her  standing  and 
running  rigging  all  cut  to  pieces ;  so  that  they  had  no  longer  any  com- 
mand of  the  ship."    Being  so  taken  by  the  Americans,  and  afterward.-? 


Ch.  17)         NEUTRAL  TRADE  WITH  BELLIGERENTS  1013 

retaken  by  his  Majesty's  ship  Sceptre,  the  question  is,  whether  the 
Portuguese  lader  is  entitled  to  the  restitution  of  his  goods  absolutely, 
or  subject  to  the  payment  of  a  salvage  to  the  recaptors. 

Now,  upon  principle,  I  cannot  but  think  that  the  goods  would  have 
been  in  very  great  danger  of  condemnation  in  an  American  court  of 
prize.  Reference  has  been  made  to  an  act  of  the  American  Congress 
relative  to  salvage,  but  I  do  not  think  that  it  can  have  much  bearing 
on  the  present  case.  The  act  does  not  define  the  cases  to  which  it  is 
intended  to  be  applied — that  is  left  to  the  courts  to  determine  at  their 
discretion.  I  shall,  therefore,  lay  the  American  law  entirely  out  of 
my  consideration  and  consider  the  case  upon  the  general  principle.  Is 
there  a  high  degree  of  probability  (for  certainty  is  not  required)  that 
this  property  would  have  been  condemned,  if  it  had  been  carried  into 
an  American  port?  In  every  point  of  view  in  which  I  can  see  the 
matter,  I  cannot  help  thinking  that  it  would  have  run  a  very  consid- 
erable risk  of  condemnation ;  and  that  the  Portuguese  merchant  would 
have  no  very  good  ground  of  complaint  if  it  had  actually  been  con- 
demned. The  ship  being  furnished  with  a  letter  of  marque,  is  mani- 
festly a  ship  of  war,  and  is  not  otherwise  to  be  considered,  because 
she  acted  also  in  a  commercial  capacity.  The  mercantile  character  be- 
ing superadded,  does  not  predominate  over  or  take  away  the  other. 
There  was  formerly,  indeed,  a  distinction  made  between  privateers 
and  merchant  vessels  furnished  with  a  letter  of  marque,  the  pne  being 
entitled  to  head-money  and  the  other  not;  but  that  distinction  has 
since  been  entirely  done  away.  A  neutral  subject  is  at  liberty  to  put 
his  goods  on  board  a  merchant  vessel,  though  belonging  to  a  belligerent, 
subject,  nevertheless,  to  the  rights  of  the  enemy  who  may  capture  the 
vessel ;  but  who  has  no  right,  according  to  the  modern  practice  of 
civilized  states,  to  condemn  the  neutral  property.  Neither  will  the 
goods  of  the  neutral  be  subject  to  condemnation,  although  a  rescue 
should  be  attempted  by  the  crew  of  the  captured  vessel,  for  that  is  an 
event  which  the  merchant  could  not  have  foreseen.  But,  if  he  pTits 
his  goods  on  board  a  ship  of  force,  which  he  has  every  reason  to  pre- 
sume will  be  defended  against  the  enemy  by  that  force,  the  case  then 
becomes  very  different.  He  betrays  an  intention  to  resist  visitation 
and  search,  which  he  could  not  do  by  putting  them  on  board  a  mere 
merchant  vessel,  and  so  far  as  he  does  this  he  adheres  to  the  bellig- 
erent; he  withdraws  himself  from  his  protection  of  neutrality,  and 
resorts  to  another  mode  of  defence ;  and  I  take  it  to  be  quite  clear, 
that,  if  a  party  acts  in  association  with  a  hostile  force,  and  relies  upon 
that  force  for  protection,  he  is,  pro  hac  vice,  to  be  considered  as  an 
enemy. 

It  is  not  a  sufficient  excuse  to  say,  that  the  Portuguese  are  not  pos- 
sessed of  shipping  of  their  own,  sufficient  for  the  whole  of  their  com- 
merce, and  are,  therefore,  under  the  necessity  of  making  use  of  those 
■  belonging  to  others.     If  they  choose  to  take  the  protection  of  a  hos- 


1014  RIGHTS  AND  DUTIES   OP  NATIONS  IN  TIME  OF  WAR         (Part  3 

tile  force  instead  of  their  own  neutral  character,  they  must  take  the 
inconvenience  with  the  convenience;  they  must  abide  by  the  conse- 
quences resulting  from  the  course  of  conduct  which,  upon  the  whole 
knowledge  of  the  matter,  they  have  thought  proper  to  pursue.  It 
could  not,  in  this  case,  have  been  a  secret,  that  force  was  to  be  used 
for  the  protection  of  the  property.  It  must  have  been  known  to  the 
laders  of  the  cargo,  that  this  ship  was  to  sail  as  a  single  ship,  and  to 
fight  her  way  home,  since  a  large  number  of  men  were  openly  and 
publicly  collected  for  the  purpose  of  enabling  her  to  resist  a  hostile 
force.  I  cannot  entertain  a  doubt  that  the  Americans  might,  upon 
just  and  sound  principles,  have  condemned  this  property.  The  case 
which  has  been  cited  from  the  American  Reports,  is  much  too  indis- 
tinct to  assist  the  court  in  forming  its  judgment  upon  the  practice  of 
the  American  court.  The  ground  upon  which  salvage  was  there  given, 
does  not  appear  to  be  of  great  authority  either  one  way  or  the  other. 
I  decree  restitution  of  this  property,  on  payment  of  the  usual  salvage 
to  the  recaptor. 


THE  NEREIDE. 
(Supreme  Court  of  the  United  States,  1815.    9  Cranch,  388,  3  L>.  Ed.  769.) 

This  was  an  appeal  by  Manuel  Pinto,  from  the  sentence  of  the  Cir- 
cuit Court  for  the  District  of  New  York,  affirming  (pro  forma)  the 
sentence  of  the  District  Court  which  condemned  that  part  of  the  cargo 
which  was  claimed  by  him.  The  facts  of  the  case  are  thus  stated  by 
the  Chief  Justice  in  delivering  the  opinion  of  the  court. 

Manuel  Pinto,  a  native  of  Buenos  Ayres,  being  in  London,  on  the 
26th  of  August,  1813,  entered  into  a  contract  with  John  Drinkald, 
owner  of  the  ship  Nereide,  whereof  William  Bennett  was  master, 
whereby  the  said  Drinkald  let  to  the  said  Pinto  the  said  vessel  to 
freight  for  a  voyage  to  Buenos  Ayres  and  back  again  to  London,  on 
the  conditions  mentioned  in  the  charter  party.     *     *     * 

Under  this  contract  a  cargo,  belonging  in  part  to  the  freighter,  in 
part  to  other  inhabitants  of  Buenos  Ayres,  and  in  part  to  British  sub- 
jects, was  taken  on  board  the  Nereide,  and  she  sailed  under  convoy 
some  time  in  November,  1813.  Her  license,  or  passport,  dated  the 
16th  of  November,  states  her  to  mount  10  guns  and  to  be  manned 
by  16  men.  The  letter  of  instructions  from  the  owner  to  the  master 
is  dated  on  the  24th  of  November,  and  contains  this  passage:  "Mr. 
Pinto  is  to  advance  you  what  money  you  want  for  ship's  use  at 
River  Plate,  and  you  will  consider  yourself  as  under  his  directions 
so  far  as  the  charter  party  requires." 

On  the  voyage,  the  Nereide  was  separated  from  her  convoy,  and  on 
the  19th  of  December,  1813,  when  in  sight  of  Madeira,  fell  in  with, 
and  after  an  action  of  about  fifteen  minutes,  was  captured  by  the 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  1015 

American  privateer  The  Governor  Tompkins.  She  was  brought  into 
the  port  of  New  York,  where  vessel  and  cargo  were  libelled ;  and  the 
vessel  and  that  part  of  the  cargo  which  belonged  to  British  subjects 
were  condemned  without  a  claim.  That  part  of  the  cargo  which  be- 
longed to  Spaniards  was  claimed  by  Manuel  Pinto,  partly  for  himself 
and  partners,  residing  in  Buenos  Ayres,  and  partly  for  the  other  own- 
ers residing  in  the  same  place.  On  the  hearing,  this  part  of  the  cargo 
was  also  condemned.  An  appeal  was  taken  to  the  Circuit  Court,  where 
the  sentence  of  the  District  Court  was  affirmed,  pro  forma,  and  from 
that  sentence  an  appeal  has  been  prayed  to  this  court.     *     *     * 

Marshall,  C.  J.,  after  stating  the  facts  of  the  case,  delivered  the 
opinion  of  the  court  as  follows ;  lo     *     *     * 

I.  Manuel  Pinto  is  admitted  to  be  a  native  of  Buenos  Ayres,  and 
to  carry  on  trade  at  that  place  in  connexion  with  his  father  and  sister, 
who  are  his  partners,  and  who  also  reside  at  Buenos  Ayres ;  but  it  is 
contended  that  he  has  acquired  a  domicil  in  England,  and  with  that 
domicil  the  English  commercial  character.     *     *     * 

Had  the  English  character  been  friendly  and  the  Spanish  hostile, 
it  would  have  been  a  hardy  attempt  indeed  in  Mr.  Pinto  to  found,  on 
these  circumstances,  a  claim  to  a  domicil  in  England. 

The  question  respecting  ownership  of  the  goods  is  not  so  perfectly 
clear.  The  evidence  of  actual  ownership,  so  far  as  the  claim  asserts 
property  existing,  at  the  time,  in  himself  and  partners,  is  involved  in 
no  uncertainty.  *  *  *  The  witnesses  examined  in  preparatorio, 
so  far  as  they  know  any  thing  on  the  subject,  all  depose  to  his  inter- 
est.    *     *     * 

This  testimony  proves,  very  satisfactorily,  the  interest  of  Pinto's 
house  in  the  property  he  claims.  There  is  no  counter  testimony  in 
the  cause,  except  the  belief  expressed  by  Mr.  Puzey,  that  for  a  part 
of  the  goods  Pinto  was  agent  for  the  government  of  Buenos 
Ayres.     *     *     * 

That  he  should  state  as  his,  the  property  which  belonged  to  a  house 
in  Buenos  Ayres,  whose  members  all  resided  at  the  same  place,  and 
of  which  he  was  the  acting  and  managing  partner,  was  a  circumstance 
which  could  not  appear  important  to  himself,  and  which  was  of  no 
importance  in  the  cause.  These  trivial  and  accidental  inaccuracies 
are  corrected  in  his  claim  and  in  his  test  affidavit.  The  court  does 
not  think  them  of  sufficient  importance  to  work  a  confiscation  of  goods, 
of  the  real  neutrality  of  which  no  serious  doubt  is  entertain- 
ed.    *     *     * 

Thus  far  the  opinion  of  the  court  has  been  formed  without  much 
difficulty.  Although  the  principles,  asserted  by  the  counsel,  have  been 
sustained  on  both  sides  with  great  strength  of  argument,  they  have 
been   found  on  examination  to  be  simple  and  clear   in  themselves. 

10  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


1016  RIGHTS  AND   DUTIES   OF  NATIONS  IN  TIME  OP  WAR         (Part  3 

Stripped  of  the  imposing  garb  in  which  they  have  been  presented  to 
the  court,  they  have  no  intrinsic  intricacy  which  should  perplex  the 
understanding. 

The  remaining  point  is  of  a  different  character.  Belligerent  rights 
and  neutral  privileges  are  set  in  array  against  each  other.  Their  re- 
spective pretensions,  if  not  actually  intermixed,  come  into  close  con- 
tact, and  the  line  of  partition  is  not  so  distinctly  marked  as  to  be 
clearly  discernible.  It  is  impossible  to  declare  in  favor  of  either,  with- 
out hearing,  from  the  other,  objections  which  it  is  difficult  to  answer, 
and  arguments  which  it  is  not  easy  to  refute.  The  court  has  given  to 
this  subject  a  patient  investigation,  and  has  endeavored  to  avail  itself 
of  all  the  aid  which  has  been  furnished  by  the  bar.  The  result,  if  not 
completely  satisfactory  even  to  ourselves,  is  one  from  which  it  is  be- 
lieved we  should  not  depart  were  further  time  allowed  for  deliberation. 

4.  Has  the  conduct  of  Manuel  Pinto  and  of  the  Nereide  been  such 
as  to  impress  the  hostile  character  on  that  part  of  the  cargo  which 
was  in  fact  neutral?  In  considering  this  question  the  court  has  exam- 
ined separately  the  parts  which  compose  it. 

The  vessel  was  armed,  was  the  property  of  an  enemy,  and  made 
resistance.  How  do  these  facts  affect  the  claim?  Had  the  vessel  been 
armed  by  Pinto,  that  fact  would  certainly  have  constituted  an  im- 
portant feature  in  the  case.  But  the  court  can  perceive  no  reason  for 
believing  she  was  armed  by  him.  He  chartered,  it  is  true,  the  whole 
vessel,  and  that  he  might  as  rightfully  do  as  contract  for  her  partially ; 
but  there  is  no  reason  to  believe  that  he  was  instrumental  in  arming 
her.  The  owner  stipulates  that  the  Nereide  "well  manned,  victualled, 
equipped,  provided  and  furnished  with  all  things  needful  for  such  a 
vessel,"  shall  be  ready  to  take  on  board  a  cargo  to  be  provided  for 
her.  The  Nereide,  then,  was  to  be  put,  by  the  owner,  in  the  condition 
in  which  she  was  to  sail.  In  equipping  her,  whether  with  or  without 
arms,  Mr.  Pinto  was  not  concerned.  It  appears  to  have  been  entirely 
and  exclusively  the  act  of  the  belligerent  owner. 

Whether  the  resistance,  which  was  actually  made,  is  in  any  degree 
imputable  to  Mr.  Pinto,  is  a  question  of  still  more  importance.  It  has 
been  argued  that  he  had  the  whole  ship,  and  that,  therefore,  the  re- 
sistance was  his  resistance.  The  whole  evidence  upon  this  point  is  to 
be  found  in  the  charter  party,  in  the  letter  of  instructions  to  the  mas- 
ter, and  in  the  answer  of  Pinto  to  one  of  the  interrogatories  in  pre- 
paratorio. 

The  charter  party  evinces  throughout  that  the  ship  remained  under 
the  entire  direction  of  the  owner,  and  that  Pinto  in  no  degree  partici- 
pated in  the  command  of  her.  The  owner  appoints  the  master  and 
stipulates  for  every  act  to  be  performed  by  the  ship,  from  the  date  of 
the  charter  party  to  the  termination  of  the  voyage.  In  no  one  respect, 
except  in  lading  the  vessel,  was  Pinto  to  have  any  direction  of  her. 
The  letter  of  instructions  to  the  master  contains  full  directions  for 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  1017 

the  regulation  of  his  conduct,  without  any  other  reference  to  Mr. 
Pinto  than  has  been  already  stated.  That  reference  shows  a  positive 
limitation  of  his  power  by  the  terms  of  the  charter  party.  Conse- 
quently he  had  no  share  in  the  government  of  the  ship.     *     *     * 

The  next  point  to  be  considered  is  the  right  of  a  neutral  to  place  his 
goods  on  board  an  armed  belligerent  merchantman.  That  a  neutral 
may  lawfully  put  his  goods  on  board  a  belligerent  ship  for  conveyance 
on  the  ocean,  is  universally  recognized  as  the  original  rule  of  the  law 
of  nations.  It  is,  as  has  already  been  stated,  founded  on  the  plain  and 
simple  principle  that  the  property  of  a  friend  remains  his  property 
wherever  it  may  be  found.  "Since  it  is  not,"  says  Vattel,  "the  place 
where  a  thing  is  which  determines  the  nature  of  that  thing,  but  the 
character  of  the  person  to  whom  it  belongs,  things  belonging  to  neu- 
tral persons  which  happen  to  be  in  an  enemy's  country,  or  on  board 
an  enemy's  ships,  are  to  be  distinguished  from  those  which  belong  to 
the  enemy." 

Bynkershoek  lays  down  the  same  principles  in  terms  equally  explicit ; 
and  in  terms  entitled  to  the  more  consideration,  because  he  enters  into 
the  enquiry  whether  a  knowledge  of  the  hostile  character  of  the  ves- 
sel can  effect  the  owner  of  the  goods.  The  same  principle  is  laid  down 
by  other  writers  on  the  same  subject,  and  is  believed  to  be  contradicted 
by  none.  It  is  true  there  were  some  old  ordinances  of  France  declar- 
ing that  a  hostile  vessel  or  cargo  should  expose  both  to  condemnation. 
But  these  ordinances  have  never  constituted  a  rule  of  public  law. 

It  is  deemed  of  much  importance  that  the  rule  is  universally  laid 
down  in  terms  which  comprehend  an  armed  as  well  as  an  unarmed  ves- 
sel ;  and  that  armed  vessels  have  never  been  excepted  from  it.  Byn- 
kershoek, in  discussing  a  question  suggesting  an  exception,  with  his 
mind  directed  to  hostilities,  does  not  hint  that  this  privilege  is  confined 
to  unarmed  merchantmen.  In  point  of  fact,  it  is  believed  that  a  belliger- 
ent merchant  vessel  rarely  sails  unarmed,  so  that  this  exception  from  the 
rule  would  be  greater  than  the  rule  itself.  At  all  events,  the  number 
of  those  who  are  armed  and  who  sail  under  convoy,  is  too  great  not 
to  have  attracted  the  attention  of  writers  on  public  law ;  and  this  ex- 
ception to  their  broad  general  rule,  if  it  existed,  would  certainly  be  found 
in  some  of  their  works.  It  would  be  strange  if  a  rule  laid  down,  with 
a  view  to  war,  in  such  broad  terms  as  to  have  universal  application, 
should  be  so  construed  as  to  exclude  from  its  operation  almost  every 
case  for  which  it  purports  to  provide,  and  yet  that  not  a  dictum  should 
be  found  in  the  books  pointing  to  such  construction. 

The  antiquity  of  the  rule  is  certainly  not  unworthy  of  consideration. 
It  is  to  be  traced  back  to  the  time  when  almost  every  merchantman  was 
in  a  condition  for  self-defence,  and  the  implements  of  war  were  so 
light  and  so  cheap  that  scarcely  any  would  sail  without  them.  A  bel- 
ligerent has  a  perfect  right  to  arm  in  his  own  defence ;   and  a  neutral 


1018  RIGHTS  AND   DUTIES   OF  NATIONS   IN   TIME   OF  WAR         (Part  3 

has  a  perfect  right  to  transport  his  goods  in  a  belligerent  vessel.  These 
rights  do  not  interfere  with  each  other.  The  neutral  has  no  control 
over  the  belligerent  right  to  arm — ought  he  to  be  accountable  for  the 
exercise  of  it? 

By  placing  neutral  property  in  a  belligerent  ship,  that  property,  ac- 
cording to  the  positive  rules  of  law,  does  not  cease  to  be  neutral.  Why 
should  it  be  changed  by  the  exercise  of  a  belligerent  right,  universally 
acknowledged  and  in  common  use  when  the  rule  was  laid  down,  and 
over  which  the  neutral  had  no  control  ?  The  belligerent  answers,  that 
by  arming  his  rights  are  impaired.  By  placing  his  goods  under  the 
guns  of  an  enemy,  the  neutral  has  taken  part  with  the  enemy  and  as- 
sumed the  hostile  character. 

Previous  to  that  examination  which  the  court  has  been  able  to  make 
of  the  reasoning  by  which  this  proposition  is  sustained,  one  remark  will 
be  made  which  applies  to  a  great  part  of  it.  The  argument  which,  taken 
in  its  fair  sense,  would  prove  that  it  is  unlawful  to  deposit  goods  for 
transportation  in  the  vessel  of  an  enemy  generally,  however  imposing 
its  form,  must  be  unsound,  because  it  is  in  contradiction  to  acknowl- 
edged law.  It  is  said  that  by  depositing  goods  on  board  an  armed 
belligerent  the  right  of  search  may  be  impaired,  perhaps  defeated. 

What  is  this  right  of  search?  Is  it  a  substantive  and  independent 
right  wantonly,  and  in  the  pride  of  power,  to  vex  and  harrass  neutral 
commerce,  because  there  is  a  capacity  to  do  so?  or  to  indulge  the  idle 
and  mischievous  curiosity  of  looking  into  neutral  trade?  or  the  as- 
sumption of  a  right  to  control  it?  If  it  be  such  a  substantive  and  in- 
dependent right,  it  would  be  better  that  cargoes  should  be  inspected  in 
port  before  the  sailing  of  the  vessel,  or  that  belligerent  licenses  should 
be  procured.    But  this  is  not  its  character. 

Belligerents  have  a  full  and  perfect  right  to  capture  enemy  goods  and 
articles  going  to  their  enemy  which  are  contraband  of  war.  To  the  ex- 
ercise of  that  right  the  right  of  search  is  essential.  It  is  a  mean  justi- 
fied by  the  end.  It  has  been  truely  denominated  a  right  growing  out 
of,  and  ancillary  to  the  great  right  of  capture.  Where  this  greater 
right  may  be  legally  exercised  without  search,  the  right  of  search  can 
never  arise  or  come  into  question. 

But  it  is  said  that  the  exercise  of  this  right  may  be  prevented  by  the 
inability  of  the  party  claiming  it  to  capture  the  belligerent  carrier  of 
neutral  property.  And  what  injury  results  from  this  circumstance?  If 
the  property  be  neutral,  what  mischief  is  done  by  its  escaping  a  search? 
In  so  doing  there  is  no  sin  even  as  against  the  belligerent,  if  it  can 
be  effected  by  lawful  means.  The  neutral  cannot  justify  the  use  of 
force  or  fraud,  but  if  by  means,  lawful  in  themselves,  he  can  escape 
this  vexatious  procedure,  he  may  certainly  employ  them. 

To  the  argument  that  by  placing  his  goods  in  the  vessel  of  an  armed 
enemy,  he  connects  himself  with  that  enemy  and  assumes  the  hostile 
character;   it  is  answered  that  no  such  connexion  exists.     The  object 


Ch.  17)         NEUTRAL  TRADE  WITH  BELLIGERENTS  1019 

of  the  neutral  is  the  transportation  of  his  goods.  His  connexion  with 
the  vessel  which  transports  them  is  the  same,  whether  that  vessel  be 
armed  or  unarmed.  The  act  of  arming  is  not  his — it  is  the  act  of  a 
party  who  has  a  right  so  to  do.  He  meddles  not  with  the  armament 
nor  with  the  war.  Whether  his  goods  were  on  board  or  not,  the  ves- 
sel would  be  armed  and  would  sail.  His  goods  do  not  contribute  to 
the  armament  further  than  the  freight  he  pays,  and  freight  he  would 
pay  were  the  vessel  unarmed. 

It  is  difficult  to  perceive  in' this  ♦argument  any  thing  which  does  not 
also  apply  to  an  unarmed  vessel.  In  both  instances  it  is  the  right  and 
the  duty  of  the  carrier  to  avoid  capture  and  to  prevent  a  search.  There 
is  no  difference  except  in  the  degree  of  capacity  to  carry  this  duty  into 
effect.  The  argument  would  operate  against  the  rule  which  permits  the 
neutral  merchant  to  employ  a  belligerent  vessel  without  imparting  to  his 
goods  the  belligerent  character. 

The  argument  respecting  resistance  stands  on  the  same  ground  with 
that  which  respects  arming.  Both  are  lawful.  Neither  of  them  is 
chargeable  to  the  goods  or  their  owner,  where  he  has  taken  no  part 
in  it..  They  are  incidents  to  the  character  of  the  vessel;  and  may  al- 
ways occur  where  the  carrier  is  belligerent.  It  is  remarkable  that  no 
express  authority  on  either  side  of  this  question  can  be  found  in  the 
books.  A  few  scanty  materials,  made  up  of  inferences  from  cases 
depending  on  other  principles,  have  been  gleaned  from  the  books  and 
employed  by  both  parties.  They  are  certaifily  not  decisive  for  or  against 
either. 

The  celebrated  case  of  the  Swedish  convoy  has  been  pressed  into  the 
service.  But  that  case  decided  no  more  than  this,  that  a  neutral  may 
arm,  but  cannot  by  force  resist  a  search.  The  reasoning  of  the  judge 
on  that  occasion  would  seem  to  indicate  that  the  resistance  condemned 
the  cargo,  because  it  was  unlawful.  It  has  been  inferred  on  the  one 
side  that  the  goods  would  be  infected  by  the  resistance  of  the  ship, 
and  on  the  other  that  a  resistance  which  is  lawful,  and  is  not  produced 
by  the  goods,  will  not  change  their  character. 

The  case  of  The  Catharine  Elizabeth  approaches  more  nearly  to  that 
of  The  Nereide,  because  in  that  case  as  in  this  there  were  neutral  goods 
and  a  belligerent  vessel.  It  was  certainly  a  case,  not  of  resistance,  but 
of  an  attempt  by  a  part  of  the  crew  to  seize  tlie  capturing  vessel.  Be- 
tween such  an  attempt  and  an  attempt  to  take  the  same  vessel  previous 
to  capture,  there  does  not  seem  to  be  a  total  dissimilitude.  But  it  is 
the  reasoning  of  the  judge  and  not  his  decision,  of  which  the  claimants 
would  avail  themselves.  He  distinguishes  between  the  effect  which  the 
employment  of  force  by  a  belligerent  owner  or  by  a  neutral  owner 
would  have  on  neutral  goods.  The  first  is  lawful,  the  last  unlawful. 
The  belligerent  owner  violates  no  duty.  He  is  held  by  force  and  may 
escape  if  he  can.  From  the  marginal  note  it  appears  that  the  reporter 
understood  this  case  to  decide  in  principle  that  resistance  by  a  belliger- 


1020  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   WAR         (Part  3 

ent  vessel  would  not  confiscate  the  cargo.  It  is  only  in  a  case  without 
express  authority  that  such  materials  can  be  relied  on. 

If  the  neutral  character  of  the  goods  is  forfeited  by  the  resistance 
of  the  belligerent  vessel,  why  is  not  the  neutral  character  of  the  pas- 
sengers forfeited  by  the  same  cause?  The  master  and  crew  are  pris- 
oners of  war,  why  are  not  those  passengers  who  did  not  engage  in  the 
conflict  also  prisoners?  That  they  are  not  would  seem  to  the  court  to 
afford  a  strong  argument  in  favor  of  the  goods.  The  law  would  op- 
erate in  the  same  manner  on  both.  It  cannot  escape  observation,  that 
in  argument  the  neutral  freighter  has  been  continually  represented  as 
arming  the  Nereide  and  impelling  her  to  hostility.  He  is  represented 
as  drawing  forth  and  guiding  her  warlike  energies.  The  court  does 
not  so  understand  the  case.  The  Nereide  was  armed,  governed,  and 
conducted  by  belligerents.  With  her  force,  or  her  conduct  the  neutral 
shippers  had  no  concern.  They  deposited  their  goods  on  board  the 
vessel,  and  stipulated  for  their  direct  transportation  to  Buenos  Ayres. 
It  is  true  that  on  her  passage  she  had  a  right  to  defend  herself,  did  de- 
fend herself,  and  might  have  captured  an  assailing  vessel ;  but  to 
search  for  the  enemy  would  have  been  a  violation  of  the  charter  party 
and  of  her  duty.     *     *     * 

The  Nereide  has  not  that  centaur-like  appearance  which  has  been 
ascribed  to  her.  She  does  not  rove  over  the  ocean  hurling  the  thunders 
of  war  while  sheltered  by  the  olive  branch  of  peace.  She  is  not  com- 
posed in  part  of  the  neutral  character  of  Mr.  Pinto,  and  in  part  of 
the  hostile  character  of  her  owner.  She  is  an  open  and  declared  bel- 
ligerent; claiming  all  the  rights,  and  subject  to  all  the  dangers  of  the 
belligerent  character.  She  conveys  neutral  property  which  does  not 
engage  in  her  warlike  equipments,  nor  in  any  employment  she  may 
make  of  them ;  which  is  put  on  board  solely  for  the  purpose  of  trans- 
portation, and  which  encounters  the  hazard  incident  to  its  situation; 
the  hazard  of  being  taken  into  port,  and  obliged  to  seek  another  con- 
veyance should  its  carrier  be  captured. 

In  this  it  is  the  opinion  of  the  majority  of  the  court  there  is  nothing 
unlawful.  The  characters  of  the  vessel  and  cargo  remain  as  distinct 
in  this  as  in  any  other  case.  The  sentence,  therefore,  of  the  Circuit 
Court  must  be  reversed,  and  the  property  claimed  by  Manuel  Pinto 
for  himself,  and  his  partners,  and  for  those  other  Spaniards  for  whom 
he  has  claimed,  be  restored,  and  the  libel  as  to  that  property,  be  dis- 
missed."    *     *     * 

11  The  concurring  opinion  of  Mr.  Justice  Johnson  and  the  dissenting  opin- 
ion of  Mr.  Justice  Story,  are  omitted.  The  dissenting  opinion  is  an  elaborate 
and  able  presentation  of  the  doctrine  laid  down  by  Sir  William  Scott  in  The 
Fanny,  ante,  p.  1012. 

In  The  Atalanta.  3  Wheat.  409,  4  L.  Ed.  422  (1818),  the  Supreme  Court  re- 
examined and  confirmed  the  doctrine  laid  down  in  The  Nereide,  that  a  neutral 
cargo  found  on  board  an  armed  enemy's  vessel  is  not  liable  to  condemnation 
as  prize  of  war.  The  goods  ia  question  were  found  upon  a  British  armed  ves- 
sel, and  the  case,  as  Chief  Justice  Marshall  said,  did  not  "essentially  differ 


Ch.  17)  NEUTRAL  TRADE  WITH  BELLIGERENTS  1021 

from  that  of  The  Nereide,"  and  for  that  reason  it  was  "unnecessary  to  repeat 
the  reasoning  on  which  that  case  was  decided." 

Mr.  Justice  Johnson,  however,  delivered  an  elaborate  opinion,  to  which 
reference  is  made,  concluding : 

"Upon  the  whole,  I  am  fully  satisfied  that  the  decision  in  the  case  of  The 
Nereide  was  founded  in  the  most  correct  piinciples,  and  recognise  the  rule, 
that  lading  on  board  an  armed  belligerent  is  not,  per  se,  a  cause  of  forfeiture ; 
as  not  only  the  most  correct  on  principle,  but  the  most  liberal  and  honorable 
to  the  jurisprudence  of  this  country." 

Mr.  Justice  Story,  who  had  dissented  in  the  case  of  The  Nereide,  did  not 
dissent  from  the  judgment  of  the  couit  in  the  case  of  The  Atalanta.  Therefore 
the  case  of  The  Atalanta  may  be  considered  as  an  appeal  from  The  Nereide, 
and  the  judgment  in  The  Atalanta  as  a  confirmation  of  The  Nereide  on  appeal, 
and  the  unanimous  opinion  of  the  Supreme  Court  of  the  United  States. 

The  importance  of  the  decision  was  not  lost  upon  James  Kent,  who  said  in 
the  first  edition  of  his  Commentaries,  vol.  1,  pp.  123,  124,  published  in  1826: 

"The  question  decided  in  the  case  of  The  Nereide  is  a  very  important  one 
in  prize  law,  and  of  infinite  importance  in  its  practical  results ;  and  it  is 
to  be  regretted,  that  the  decisions  of  two  courts  of  the  highest  character,  on 
such  a  point,  should  have  been  in  direct  contradiction  to  each  other.  The 
same  point  afterwards  arose,  and  was  again  argued,  and  the  former  decision 
repeated,  in  the  ease  of  The  Atalanta,  3  Wheat.  409,  4  L.  Ed.  422  (1818).  Tt 
was  observed,  in  this  latter  case,  that  the  rule  with  us  was  correct  in  principle, 
and  the  most  liberal  and  honorable  to  the  jurisprudence  of  this  country.  The 
question  may,  therefore,  be  considered  here  as  at  rest,  and  as  having  received 
the  most  authoritative  decision  that  can  be  rendered  by  any  judicial  tribunal 
on  this  side  of  the  Atlantic." 

In  British  Consul  v.  Ship  Mermaid,  Bee's  Reports,  69,  71,  Fed.  Cas.  No. 
1,897  (1795),  Judge  Bee,  speaking  for  the  United  States  District  Court  of 
South  Carolina,  said: 

"The  laws  of  neutrality  and  nations  in  no  instance,  that  I  know  of,  interdict 
neutral  vessels  from  going  to  sea  armed  and  fitted  for  defensive  war.  All 
American  Indiamen  are  armed,  and'  it  is  necessary  they  should  be  so.    *    *    *  " 

In  William  Hooper,  Administrator,  v.  United  States,  22  Ct.  CI.  408  (1887), 
Judge  Davis,  speaking  for  the  court,  held  that  armament  for  defensive  pur- 
poses was  proper,  whereas,  the  case  of  a  vessel  armed  for  aggression  and 
profit  as  a  privateer  would  be  different. 

In  The  Panama,  176  U.  S.  535,  544,  20  Sup.  Ct.  480,  44  L.  Ed.  577  (1900). 
Mr.  Justice  Gray,  speaking  for  the  court,  quoted  with  approval  the  following 
language  of  Portalis,  acting  as  commissioner  of  the  French  government: 

"For  my  part,  I  do  not  think  it  is  enough  to  have  or  to  carry  arms,  to  incur 
the  reproach  of  being  armed  for  war.  Armament  for  war  is  of  a  purely  offen- 
.  sive  nature.  It  is  established  when  there  is  no  other  object  in  the  armament 
than  that  of  attack,  or,  at  least,  when  everything  shows  that  such  is  the 
principal  object  of  the  enterprise;  then  a  vessel  is  deemed  enemy  or  pirate, 
if  she  has  no  commission  or  papers  sufficient  to  remove  all  suspicion.  But 
defence  is  a  natural  right,  and  means  of  defence  are  lawful  in  voyages  at 
sea,  as  in  all  other  dangerous  occupations  of  life.  A  ship  which  had  but  a 
small  crew,  and  a  considerable  cargo,  was  evidently  intended  for  commerce, 
and  not  for  war.  The  arms  found  on  this  ship  were  evidently  intended,  not 
for  committing  acts  of  rapine  or  hostility,  but  for  preventing  them ;  not  for 
attack,  but  for  self-defence.  The  pretext  of  being  armed  for  war  therefore 
appears  to  me  to  be  unfounded." 

The  Council  of  Prizes,  upon  consideration  of  the  report  of  Portalis,  adjudg- 
ed that  the  capture  of  the  vessel  and  her  cargo  was  null  and  void,  and  order- 
ed them  to  be  restored,  with  damages.  The  Pegou,  or  Pigou,  2  Pistoye  et 
Duverdy,  Prises  Maritimes,  51  (1800);  Id.,  2  Cranch,  96-98,  2  L.  Ed.  208 
and  note. 

The  question  arose  in  the  World  War  (1914^18)  whether  belligerent  mer- 
chantmen could  arm  for  defensive  purposes,  and  in  case  of  attack  defend 
themselves.  The  right  so  to  do  was  maintained  by  Great  Britain  and  its  al- 
lies. It  was  denied  by  Germany.  It  is  believed  that  the  views  of  Great 
Britain  and  its  allies  represented  existing  law. 


1022  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 


SECTION  8.— TRANSFER  OF  VESSELS 


THE  NOYDT  GEDACHT. 

(High  Court  of  Admiralty,  1799.    2  C.  Rob.  137,  note.) 

In  The  Noydt  Gedacht,  Waalrave,  23d  August,  1799,  which  was  a 
subsequent  case  of  a  small  Dutch  fishing  vessel  transferred  to  the 
neutral  claimant  under  a  condition  to  reconvey  at  the  end  of  the  war. 

The  Court  [Sir  Wm.  Scott].  A  sale  made  by  an  enemy  to  neu- 
trals, in  time  of  war,  must  be  an  absolute  unconditional  sale.  This 
transfer  is  evidently  done  only  to  cover  the  property  during  the  war. 
The  vessel  continues  in  ^the  old  trade,  and  is,  in  every  respect,  a 
Dutch  vessel.  As  to  the  cargo,  the  value  of  the  property  is  very  small ; 
and  it  would  be  of  very  little  benefit  to  any  party  to  send  the  case  to 
farther  proof.  I  must,  therefore,  dispose  of  it  according  to  the  pre- 
ponderancy  of  the  present  evidence.  The  master,  who,  I  must  say,  has 
spoken  very  ingenuously,  says  "that  the  consignees  reside  at  Dort; 
that  he  believes  the  laders  have  an  interest  in  the  cargo  now,  but  that 
it  would  become  the  property  of  the  consignees  on  the  arrival  at  Dort ; 
and  he  gives  his  reason  for  this  belief,  that  the  lader  told  him  so." 
On  this  authority  the  master  undertakes  to  swear  that  he  believes  it  to 
be  the  property  of  persons  for  whom  it  is  claimed.  It  has  been 
settled  by  repeated  decisions  that  this  will  not  do,  that  neutrals  should 
take  upon  themselves  the  sea  risk  and  danger  of  the  voyage,  will  not  be 
allowed.  In  opposition  to  what  the  master  states,  there  are  only  two 
certificates,  which  do  not,  I .  think,  meet  the  point.  What  is  there 
sworn  may  be  very  true ;  and  yet  the  master's  account  true  at  the 
same  time.  I  am  inclined,  therefore,  to  adhere  to  the  master's  account ; 
and,  under  it,  I  must  condemn  this  cargo  as  Dutch  property.  *   *   *  ^s 

"5  The  doctrine  briefly  stated  in  the  principal  case  is  set  forth  at  lenj?th 
and  in  detail  in  The  Vigilantia,  1  C.  Rob.  1  (1798),  the  first  of  Sir  William 
Scott's  cases  to  be  reported  by  his  favorite  reporter  and  successor,  Sir  Christo- 
pher Robinson.  It  may  be  said  in  this  connection,  that  while  transfers  of 
merchant  vessels  during  the  war  are  allowed  on  certain  conditions,  the  sale 
of  war  ves.sels  is  not  recognized.    See  The  Minerva,  6  C.  Rob.  396  (1807). 

The  Georcfia,  7  Wall.  32,  43,  19  L.  Ed.  122  (1868),  an  armed  vessel  of  the 
Confederate  States,  was  built  in  Great  Britain  in  1862-1863.  With  armament 
and  complement  of  officers  and  crew  aboard  it  entered  Liverpool  in  1864,  and, 
owing  to  the  presence  of  an  American  squadron  cruising  off  the  British  and 
French  coasts,  it  was  unable  to  put  to  sea.  It  was  dismantled  and  sold  to  a 
British  subject  in  the  port  of  Liverpool  and  fitted  up  for  the  purposes  of  com- 
merce. 

Upon  leaving  Liverpool  in  the  summer  of  1864,  the  now  merchant  vessel 
was  captured  by  a  ship-of-war  of  the  United  States  and  passed  before  a  Prize 
court,  which  refused  to  recognize  the  validity  of  the  sale.  In  the  course  of 
the  opinion  of  the  court,  Mr.  Justice  Nelson  said : 

"The  distinction  between  the  purchase  of  vessels  of  war  from  the  belligerent, 


Ch.  17)  NEUTRAL   TRADE   WITH   BELLIGERENTS  1023 

THE  BAIvTICA. 

(Privy  Council,  1858.    11  Moore,  P.  C.  141.) 

This  ship,  under  Danish  colours,  was  seized  by  the  custom  house 
officers,  at  the  port  of  Leith,  on  suspicion  of  being  a  Russian  ship. 

The  vessel,  under  the  Russian  flag,  formerly  belonged  to  Sorensen, 
Sr.,  and  was  sold  by  him  on  the  17th  of  March,  1854,  immediately 
antecedent  to  the  declaration  of  war  between  Great  Britain  and  Russia, 
to  the  appellant,  his  son,  a  Danish  subject,  resident  at  Altona,  and 
transferred  by  a  regular  bill  of  sale.  Part  only  of  the  purchase  money 
was  paid,  the  remainder  being  agreed  to  be  paid  by  the  earnings  of  the 
vessel.  Sorensen,  Sr.,  was  a  Dane  by  birth,  but  had  long  resided  at 
Libau,  as  Danish  consul,  where  he  traded  as  a  merchant.  The  only 
distinguishing  feature  in  this  case  from  The  Ariel,  11  Moo.  P.  C.  119, 
was,  that  at  the  time  of  the  purchase.  The  Baltica  was  prosecuting  a 
voyage  from.  Libau  to  Copenhagen.  It  appeared  that  on  her  arrival  in 
the  port  of  Copenhagen,  in  the  middle  of  March,  she  was  delivered 
over  to  the  agent  of  the  appellant,  and  was  admeasured  by  the  Danish 
custom  house  officers  there,  and  branded  as  Danish  property.  Her 
flag  was  also  there  changed  for  the  Danish  flag,  and  a  Danish  master 
and  crew  engaged  to  navigate  her.  She  sailed  from  Copenhagen  with 
a  cargo  of  linseed  on  the  21st  of  May,  1854,  and  arrived  at  Leith,  in 
Scotland,  her  port  of  destination,  on  the  29th  of  that  month,  and  was 
seized  on  the  31st,  by  the  custom  house  authorities  as  prize. 

Proceedings  consequent  upon  her  seizure  were  commenced  against 
the  vessel  in  the  High  Court  of  Admiralty  of  England,  when  the  ap- 
pellant put  in  a  claim  as  owner  of  the  ship  and  freight. 

The  judge  of  the  Court  of  Admiralty  (Right  Hon.  Dr.  Lushington), 
by  his  interlocutory  decree,  dated  the  6th  of  August,  1855  (see  case 
-reported,  nom.  The  Baltica,  1  Spinks'  Prize  Cases,  264),  condemned  the 
ship,  upon  the  ground  that  from  the  fact  of  the  seller  being  Consul  of  a 
neutral  state  and  also  a  merchant  trading  in  the  enemy's  country,  he 
was  to  be  regarded  as  an  enemy;  moreover,  that  the  transfer  was 
fraiJdulent  and  collusive,  and  intended  to  defeat  the  just  belligerent 
rights  of  Great  Britain,  and  also  that  the  vendor  had  retained  an  in- 
terest in  the  ship,  part  of  the  purchase  money  having  been  agreed  to  be 
paid  by  the  earnings  of  the  vessel.    The  appeal  was  from  this  decree. 

The  appellant  insisted  upon  the  bona  fides  of  the  purchase  and  the 

In  time  of  war,  by  neutrals,  in  a  neutral  port,  and  of  merchant  vessels,  is 
founded  on  reason  and  justice.  It  prevents  the  abuse  of  the  neutral  by  par- 
tiality towards  either  belligerent,  vs^hen  the  vessels  of  the  one  are  under  pres- 
sure from  thf  vessels  of  the  others,  and  removes  the  tomptation  to  collusive 
or  even  actual  sales,  under  the  cover  of  which  they  may  fiud  their  way  baclJ 
again  into  the  service  of  the  enemy." 


1024  «IGHTS  AND   DUTIES   OP   NATIONS   IN   TIME   OF   WAR         (Part  3 

national  character  of  the  purchaser,  which  had  already  been  established 
in  The  Ariel,  and  submitted  that  that  case  was  not  distinguishable,  in 
principle,  from  the  present  appeal. 

On  behalf  of  the  crown  it  was  submitted  that  the  sale  was  invalid, 
having  been  made  when  the  vessel  was  in  transitu. 

Their  Lordships  called  upon  the  crown  to  distinguish  this  case  from 
The  Ariel.     *     *     * 

The  arguments  are  fully  noticed  in  the  judgment,  which  was  deliv- 
ered by 

The  Right  Hon.  T.  Pemberton  Leigh.  The  Baltica  was  one  of 
several  Russian  ships,  which,  in  the  month  of  March,  1854,  shortly  be- 
fore the  breaking  out  of  the  war  between  Russia  and  Great  Britain, 
were  sold  by  Sorensen,  Sr.,  a  merchant  domiciled  in  Russia,  to  his  son, 
Sorensen,  Jr.,  a  merchant  domiciled  in  Denmark.  These  vessels  hav- 
ing been  condemned  in  the  Court  of  Admiralty  in  England,  appeals 
were  brought  against  those  sentences ;  and  in  the  case  of  The  Ariel, 
11  Moo.  P.  C.  119,  which  was  selected  for  the  purpose  of  deciding  the 
general  quesJ:ion,  it  was  held  by  their  Lordships  that  the  sale  was  bona 
fide;  that  the  property  was  entirely  divested  from  the  vendor,  and 
vested  in  the  vendee  before  the  seizure;  that  the  transfer  was  com- 
plete, and  was  not  a  fraud  upon  any  just  right  of  the  belligerents,  and 
they,  therefore,  ordered  restitution  of  the  vessel. 

In  conformity  with  this  decision,  the  crown  officers  very  properly  re- 
stored such  of  the  vessels  as  appeared  to  them  to  stand  in  the  same 
situation  with  the  Ariel,  but  they  declined  to  restore  the  Baltica,  con- 
sidering the  case  of  that  vessel  to  be  distinguishable  from  the  rest,  on 
the  ground,  that  the  sale  of  the  ship  had  taken  place  while  she  was 
engaged  in  the  prosecution  of  a  voyage,  or,  as  it  is  technically  termed, 
while  she  was  in  transitu. 

In  order  to  determine  the  validity  of  this  distinction  in  the  circum- 
stances of  this  case,  the  present  appeal  has  been  brought. 

The  general  rule  is  open  to  no  doubt.  A  neutral  while  a  war  is  im- 
minent, or  after  it  has  commenced,  is  at  liberty  to  purchase  either 
goods  or  ships  (not  being  ships  of  war)  from  either  belligerent,  and 
the  purchase  is  valid,  whether  the  subject  of  it  be  lying  in  a  neutral 
port  or  in  an  enemy's  port.  During  a  time  of  peace,  without  prospect 
of  war,  any  transfer  which  is  sufficient  to  transfer  the  property  be- 
tween the  vendor  and  the  vendee,  is  good  also  against  a  captor,  if  war 
afterwards  unexpectedly  break  out.  But,  in  case  of  war,  either  actual 
or  imminent,  this  rule  is  subject  to  qualification,  and  it  is  settled  that 
in  such  a  case  a  mere  transfer  by  documents  which  would  be  sufficient 
to  bind  the  parties,  is  not  sufficient  to  change  the  property  as  against 
captors,  as  long  as  the  ship  or  goods  remain  in  transitu. 

With  respect  to  these  principles,  their  Lordships  are  not  aware  that 
it  is  possible  to  raise  any  controversy;  they  are  the  familiar  rules  of 


Ch.  17)        NEUTRAL  TRADE  WITH  BELLIGERENTS  1025 

the  English  Prize  Courts,  established  by  all  the  authorities,  and  are 
collected  and  stated,  principally  from  the  decisions  of  Lord  Stowell, 
by  Mr.  Justice  Story,  in  his  "Notes  on  the  Principles  and  Practice  of 
Prize  Courts,"  a  work  which  has  been  selected  by  the  British  govern- 
ment for  the  use  of  its  naval  officers,  as  the  best  code  of  instruction  in 
the  prize  law.  The  passages  referred  to  are  to  be  found  in  pp.  63,  64, 
of  that  work. 

The  only  question  of  law  which  can  be  raised  in  this  case,  is  not 
whether  a  transfer  of  a  ship  or  goods  in  transitu,  is  ineffectual  to 
change  the  property,  as  long  as  the  state  of  transitus  lasts;  but  how 
long  that  state  continues,  and  when,  and  by  what  means,  it  is  termi- 
nated. 

In  order  to  determine  the  question,  it  is  necessary  to  consider  upon 
what  principle  the  rule  rests,  and  why  it  is  that  a  sale  which  would  be 
perfectly  good  if  made  while  the  property  was  in  a  neutral  port,  or 
while  it  was  in  an  enemy's  port,  is  ineffectual  if  made  while  the  ship 
is  on  her  voyage  from  one  port  to  the  other.  There  seem  to  be  but  two 
possible  grounds  of  distinction.  The  one  is^  that  while  the  ship  is  on 
the  seas,  the  title  of  the  vendee  cannot  be  completed  by  actual  delivery 
of  the  vessel  or  goods ;  the  other  is,  that  the  ship  and  goods  having 
incurred  the  risk  of  capture  by  putting  to  sea,  shall  not  be  permitted  to 
defeat  the  inchoate  right  of  capture  by  the  belligerent  powers,  until  the 
voyage  is  at  an  end. 

The  former,  however,  appears  to  be  the  true  ground  on  which  the 
rule  rests.  Such  transactions  during  war,  or  in  contemplation  of  war, 
are  so  likely  to  be  merely  colourable,  to  be  set  up  for  the  purpose  of 
misleading,  or  defrauding  captors,  the  difficulty  of  detecting  such 
frauds,  if  mere  paper  transfers  are  held  sufficient,  is  so  great,  that  the 
courts  have  laid  down  as  a  general  rule,  that  such  transfers,  without 
actual  delivery,  shall  be  insufficient;  that  in  order  to  defeat  the  cap- 
tors, the  possession,  as  well  as  the  property,  must  be  changed  before 
the  seizure.  It  is  true  that,  in  one  sense,  the  ship  and  goods  may  be 
said  to  be  in  transitu  till  they  have  reached  their  original  port  of  desti- 
nation; but  their  Lordships  have  found  no  case  where  the  transfer 
was  held  to  be  inoperative  after  the  actual  delivery  of  the  property  to 
the  owner.  That  the  transitus  ceases,  when  the  property  has  come 
into  the  actual  possession  of  the  transferee,  is  a  doctrine  perfectly  con- 
sistent with  the  decisions  in  The  Danckebaar  Africaan,  1  Rob.  107, 
and  in  The  Negotie  en  Zeevaart,  Lord's,  July  18,  1782,  on  the  au- 
thority of  which  the  former  case  was  decided. 

The  Danckebaar  Africaan  had  sailed  on  a  voyage  from  Batavia  to 
Holland,  which  country,  when  the  voyage  commenced,  was  at  war  with 
Great  Britain,  and  continued  so  till  after  the  capture  and  adjudication. 
The  ship  and  goods  were  seized  on  their  voyage  by  British  cruisers, 
and  brought  to  the  Cape  of  Good  Hope.  They  were  there  claimed  bv 
Scott  Int.Law— 65 


1026  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME  OF  WAR         (Part  3 

merchants  resident  at  the  Cape,  who  represented  themselves  to  be  the 
owners,  and  who  insisted,  as  the  fact  was,  that  before  the  capture,  the 
Cape  (previously  a  Dutch  possession)  had  capitulated  to  the  British 
forces  under  a  treaty  which  secured  to  the  capitulants  their  rights  of 
property.  It  was  contended,  therefore,  that  they  were  entitled  to  resti- 
tution, on  the  ground  that,  at  the  time  of  the  capture,  their  character 
of  enemies  had  ceased,  and  been  changed  into  that  of  friends. 

Lord  Stowell  held,  that  he  was  bound  by  the  authority  of  The 
Negotie  en  Zeevaart,  Lord's,  July  18,  1782,  to  condemn  the  ship  and 
goods  which  had  been  seized  before  they  had  reached  the  hands  of 
the  owners ;  relying  on  a  dictum  of  Lord  Camden,  "That  the  ship, 
as  Dutch,  could  not  change  her  character  in  transitu;"  but  he  inti- 
mated that  his  opinion  might  have  been  different  if  the  ship  had  come, 
before  capture,  into  the  actual  possession  of  the  owners.  His  language 
is :  "If  the  vessel  had  arrived  at  the  Cape,  I  will  not  say  that,  coming 
actually  into  the  hands  of  the  capitulants,  she  might  not  have  been 
protected  as  property  in  possession,  but  being  taken  possession  of  be- 
fore she  arrived  there  as  Dutch  property,  I  am  bound  by  the  decisions 
of  the  Lords,  and  I  think  myself  obliged  to  say  that  her  character  could 
not  be  changed  in  transitu,  and  that  she  must  be  condemned  as  Dutch 
property." 

It  will  be  observed  that  in  this  case,  if  the  ship  had  reached  the 
Cape  before  capture,  and  come  into  the  possession  of  the  owners,  such 
possession  would  have  been  taken  before  the  termination  of  her  regu- 
lar voyage ;  for  her  destination  was  to  Holland ;  and  this  circum- 
stance is  adverted  to  by  Lord  Stowell,  who  in  answer  to  the  argument 
that  the  ship  was  coming  to  the  Cape,  and  into  the  possession  of  the 
true  owners,  observes :  "There  is  no  decided  proof  that  this  ship  was 
coming  to  the  Cape,  and  if  so  she  is  still  to  be  considered  as  taken 
merely  in  transitu  towards  Holland,  where  the  voyage  was  clearly  to 
have  ended;  and  in  what  character?  As  a  Dutch  ship  in  a  Dutch 
port." 

Yet,  even  under  these  circumstances,  he  was  not  prepared  to  con- 
demn the  ship  if  she  had  actually  come  into  the  hands  of  the  owners. 

In  the  case  of  The  Vrow  Margaretha,  1  Rob.  338,  it  is  distinctly 
stated  by  Lord  Stowell  that  the  transitus  ceases  by  the  actual  delivery 
of  the  property.  After  stating  that,  by  the  usage  of  merchants,  a  trans- 
fer of  property  in  transitu  may  be  made  by  the  execution  of  proper 
documents,  he  proceedsj  "When  war  intervenes,  another  rule  is  set 
up  by  Courts  of  Admiralty,  which  interferes  with  the  ordinary  practice. 
In  a  state  of  war,  existing  or  imminent,  it  is  held  that  the  property 
shall  be  deemed  to  continue  as  it  was  at  the  time  of  shipment  till  the 
actual  delivery ;  this  arises  out  of  the  state  of  war,  which  gives  a  bel- 
ligerent a  right  to  stop  the  goods  of  his  enemy."  He  then  assigns  the 
reason  for  the  rule,  namely,  that  if  it  were  otherwise,  "all  goods  ship- 

SCOTT  InlLaW 


Ch.  17)  NEUTRAL   TRADE    WITH    BELLIGERENTS  1027 

ped  in  an  enemy's  country  would  be  protected  by  transfers  which  it 
would  be  impossible  to  detect" — and  adds:  "It  is  on  that  principle 
held,  I  believe,  as  a  general  rule,  that  property  cannot  be  converted  in 
transitu,  and  in  that  sense  I  recognize  it  as  the  rule  of  this  Court." 

In  the  manual  already  referred  to  [Notes  on  the  Principles  and 
Practice  of  Prize  Courts],  Mr.  Justice  Story,  at  page  64,  lays  down 
the  rule  to  the  same  effect  in  these  words:  "The  same  distinction  is 
applied  to  purchases  made  by  neutrals  of  property  in  transitu;  if 
purchased  during  a  state  of  war,  existing  or  imminent,  and  impending 
danger  of  war,  the  contract  is  held  invalid,  and  the  property  is  deemed 
to  continue  as  it  was  at  the  time  of  shipment  until  the  actual  delivery." 

Applying  these  rules  to  the  facts  of  this  case,  their  Lordships  can 
have  no  doubt  as  to  the  result. 

The  Baltica  sailed  from  Libau,  on  some  day  before  the  17th  of 
March,  1854  (N.  S.),  with  a  cargo  of  linseed,  bound  for  Leith.  On 
the  17th  of  March  she  was  transferred  by  bill  of  sale  (as  far  as,  under 
the  circumstances,  such  transfer  could  be  effectual)  to  Sorensen,  Jr. 
She  was  described  as  then  on  a  voyage  from  Libau  to  Copenhagen. 
Probably  she  was  intended  to  call  at  Copenhagen  in  the  prosecution  of 
her  voyage  to  Leith.  There  does  not  seem  to  have  been  any  motive  for 
misrepresenting  her  voyage,  for  her  ultimate  destination  was  an  Eng- 
lish port.  She  arrived  at  Copenhagen  before  the  end  of  March,  and 
possession  of  her  was  then  taken  by  Sorensen,  Jr.,  the  purchaser.  He 
had  her  registered  as  a  Danish  ship,  and  she  was  marked  as  such  by 
the  proper  Danish  authorities.  He  detained  the  ship  at  Copenhagen  till 
the  middle  of  May.  He  changed  the  captain  and  the  crew  and  the 
flag,  and  transferred  the  command  to  a  Danish  master;  and  under  a 
Danish  commander  and  with  a  Danish  crew,  and  under  the  Danish 
flag,  the  vessel  sailed  from  Copenhagen  for  Leith  on  the  21st  of  May. 

There  can  be  no  manner  of  doubt,  therefore,  that  at  this  time  the 
ship  had  come  fully  into  the  possession  of  the  purchaser,  and  there- 
upon, according  to  the  principles  already  referred  to,  the  transitus,  in 
the  sense  in  which  for  this  purpose  the  word  is  used,  had  ceased. 

But,  if  it  could  be  held  that  the  transitus  continued  till  the  arrival  of 
the  ship  at  Leith,  the  result  in  this  case  would  be  the  same,  for  the 
ship  actually  arrived  in  Leith  Roads  on  the  29th  of  May.  On  the 
31st  of  May,  she  was  towed  into  Morison's  Haven  in  that  port,  where 
her  cargo  was  discharged,  which,  it  seems,  has  since  been  given  up 
to  the  consignee  with  the  consent  of  the  custom  house  officers. 

A  seizure,  however,  was  made  of  the  ship,  on  what  particular  day 
does  not  very  distinctly  appear;  but  clearly  after  she  had  arrived  at 
her  port  of  destination. 

No  distinction,  therefore,  can  be  made  between  the  Baltica  and  the 
other  ships  which  have  already  been  restored.  Their  Lordships  will 
report  to  Her  Majesty  their  opinion,  that  the  same  order  should  be 


1028  RIGHTS  AND   DUTIES   OF  NATIONS   IN   TIME  OF   WAR         (Part  3 

made  in  this  case  as  was  made  in  The  Ariel ;  an  order  for  restitution, 
but  without  damages,  or  costs  either  in  the  court  below  or  in  the  Court 
of  Appeal.^® 


THE  ANN  GREEN. 

(Circuit  Court  of  the  United  States  for  Massachusetts,  1812,    1  Gall.  274, 
Fed.  Cas.  No.  414.) 

Story,  Circuit  Judge.^'  *  *  *  i^.  i^^g  been  further  argued,  that 
this  capture,  being  made  while  the  property  was  in  transitu,  and  war 
intervening,  it  is  to  be  considered  as  enemy's  property,  because  it  would 
have  become  such  upon  arrival  at  the  port  of  destination ;  and  at  all 
events  it  would  have  been  liable  to  seizure  and  confiscation.  As  to  the 
fact  that  the  property  was  taken  in  transitu,  I  do  not  perceive  how  of 
itself  it  can  affect  the  rights  of  the  parties  either  way ;   nor  do  I  per- 

Be  In  The  Edna,  1921,  37  Times  L.  R.  494,  497,  it  appeared,  according  to  the 
headnote,  that  "American  citizens  purchased  the  Mazatlan,  then  flying  the 
Mexican  flag,  in  1915,  buying  and  paying  for  her  in  entire  good  faith  and 
changing  her  name  to  Edna.  She  had  previously  borne  an  enemy  character. 
She  was  seized  during  her  new  ownership  by  the  British  navy  and  afterwards 
requisitioned  by  the  crown."  On  this  state  of  facts,  it  was  held  that  the  sale 
was  valid. 

The  captors  alleged,  in  the  language  of  Lord  Sumner,  who  delivered  the 
opinion  of  the  Privy  Council,  "that  the  sale  was  one  which,  if  not  incompe- 
tent, yet  ought  not  to  be  sustained.  It  is  said  that  such  a  transaction  must  be 
tested  by  the  state  of  mind  in  which  it  is  conceived  and  carried  through,  and 
that  in  the  nature  of  things  the  relevant  state  of  mind  is  that  of  the  transferor' 
The  transferee's  mind  may  be  honest  and  yet  the  impropriety  of  the  trans- 
feror's motives  may  defeat  the  whole  transaction." 

To  this  contention,  the  Privy  Council  replied :  "It  is  better  to  adhere  to  the 
settled  rules  laid  down  in  The  Ariel,  11  Moore,  P.  C.  119  (1857)  and  The  Bal- 
tica,  11  Moore,  P.  C.  141  (1857).  Of  course,  a  vendor  may  be  shown  to  be  so 
interested  in  getting  rid  at  all  hazards  of  the  appearance  of  ownership  as 
to  lead  to  the  conclusion  of  fact  that  he  really  did  what  he  was  most  inter- 
ested in  doing,  and  shed  the  apparent  title  while  retaining  the  property.  A 
court  would  then  hold  that  there  was  no  real  sale,  not  that  the  sale  was  real 
and  effectual,  but  that  the  vendor's  reprehensible  state  of  mind  caused  the 
buyer  to  lose  the  ship  for  which  he  had  paid  his  money." 

"It  was  laid  down  by  their  Lordships'  Board  in  The  Ariel,  11  Moore,  119 
(1857),  and  in  The  Baltica,  11  Moore,  141  (1857)  after  full  discussion,  and  more 
recently  ia  the  consolidated  appeals  of  The  Kronprinsessan  Margareta,  The 
Parana,  and  The  Rena  (unreported  at  present) ,  that  a  neutral  can  acquire  the 
property  in  merchandise  from  an  enemy  owner,  while  the  merchandise  is 
afloat,  if  there  is  an  out  and  out  transfer,  neither  accompanied  by  elements 
of  unreality  nor  by  any  reservation  of  property  therein  to  the  seller,  pro- 
vided that  the  buyer  takes  actual  delivery  and  not  a  mere  symbolical  delivery 
by  handing  over  mercantile  documents."  Per  Lord  Sumner  in  The  Vesta  and 
Other  Vessels,  [1921]  37  Times  Law  Reports,  505,  507,  SOiS. 

See,  also,  the  elaborate  case  of  The  Roelflna,  16  American  Journal  of  In- 
ternational Law,  1922,  p.  136  (1919),  in  which  the  Prize  Court  of  Belgium  de- 
cided that  a  transfer  in  a  blockaded  port  was  invalid,  and  took  occasion  to 
discuss  the  law  on  the  subject. 

5  7  The  statement  of  the  case  is  omitted  and  only  so  much  of  the  opinion  is 
given  as  relates  to  transfer  in  transitu. 


Ch.  17)  NEUTRAL   TRADE   WITH  BELLIGERE-NTS  1029 

ceive  how  this  property  was  to  have  become  enemy's  property  on  its 
arrival.  The  case  proved  is,  that  it  was  American  property  consigned 
for  sale  only,  and  not  a  consignment  where  the  property  was,  at  the 
time  of  shipment  or  of  arrival,  to  belong  to  the  consignee.  The  cases 
are,  as  I  think,  settled  upon  just  principles,  that  decide  that  in  time  of 
war,  property  shall  not  be  permitted  to  change  character  in  its  transit ; 
nor  shall  property  consigned,  to  become  the  property  of  the  enemy 
on  arrival,  be  protected  by  the  neutrality  of  the  shipper.  Such  con- 
tracts, however  valid  in  time  of  peace,  are  considered,  if  made  in  war 
or  in  contemplation  of  war,  as  infringements  of  belligerent  rights,  and 
calculated  to  introduce  the  grossest  frauds.  In  fact,  if  they  could  pre- 
vail, not  a  single  bale  of  enemy's  goods  would  ever  be  found  upon 
the  ocean.     *     *     * 


THE  BENITO  ESTENGER. 

(Supreme  Court  of  the  United  States,  1900.     176  U.  S.  568,  20  Sup. 
Ct.  4S0,  44  L.  Ed.  592.) 

The  Benito  Estenger  was  captured  by  the  United  States  ship  Hornet 
on  June  27,  1898,  off  Cape  Cruz  on  the  south  side  of  the  island  of 
Cuba,  and  was  brought  into  the  port  of  Key  West  and  duly  libelled  on 
July  2.  The  depositions  in  preparatorio  of  Badamero  Perez,  Edwin 
Cole  and  Enrique  de  Messa  were  taken,  and  thereafter  and  on  July  27 
a  claim  was  interposed  by  Perez  as  master  of  the  steamer  on  behalf  of 
Arthur  Elliott  Beattie,  a  British  subject,  as  owner,  supported  by  test 
affidavits  of  himself  and  de  Messa.  The  cause  was  preliminarily  heard 
on  the  libel,  the  depositions  in  preparatorio  and  the  test  affidavits,  and 
sixty  days  given  for  further  proofs.  Accordingly  the  depositions  of 
the  claimant  and  sundry  others  were  taken  on  behalf  of  the  claimant, 
and  the  testimony  of  the  consul  of  the  United  States  at  Kingston  on 
behalf  of  the  captor.  The  cause  coming  on  for  final  hearing,  the  court 
entered  a  decree  December  7,  1898,  condemning  the  vessel  as  lawful 
prize  as  enemy  property,  and  ordering  her  to  be  sold  in  accordance  with 
law.  Claimant  thereupon  appealed,  and  assigned  errors  to  the  effect  in 
substance  that  the  court  erred  in  failing  to  hold  that  the  Benito  Es- 
tenger was  a  British  merchant  ship,  duly  documented  and  entitled  to 
the  protection  of  the  British  flag,  and  lawfully  owned  and  registered  by 
a  subject  domiciled  in  Great  Britain;  and  also  in  holding  that  the 
Benito  Estenger  was  lawful  prize  of  war,  inasmuch  as  she  was  en- 
gaged on  a  voyage  in  behalf  of  the  local  Cuban  junta  in  Kingston, 
allies  of  the  United  States,  and  when  captured  was  in  the  service  of 
the  United  States,  and  employed  in  friendly  offices  to  the  forces  of  the 
United  States.  The  vessel  prior  to  June  9,  1898,  was  the  property  of 
Enrique  de  Messa,  of  the  firm  of  Gallego,  de  Messa  &  Co.,  subjects  of 


1030  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

Spain  and  residents  of  Cuba.  On  that  day  a  bill  of  sale  was  made  by 
de  Messa  to  the  claimant,  Beattie,  a  British  subject,  and,  on  compliance 
with  the  requirements  of  the  British  law  governing  registration,  was 
registered  as  a  British  vessel  in  the  port  of  Kingston,  Jamaica.  The 
vessel  had  been  engaged  in  trading  with  the  island  of  Cuba,  and  more 
particularly  between  Kingston  and  Montego,  Jamaica,  and  Manzanillo, 
Cuba.  She  left  Kingston  on  the  23d  of  June,  and  proceeded  with  a 
cargo  of  flour,  rice,  cornmeal  and  coffee  to  Manzanillo,  where  the 
cargo  was  discharged.  She  cleared  from  Manzanillo  at  2  o'clock  a. 
m.,  June  27,  for  Montego,  and  then  for  Kingston,  and  was  captured  at 
half-past  five  of  that  day  off  Cape  Cruz.  The  principal  question  was 
as  to  the  ownership  of  the  vessel  and  the  legality  of  the  alleged  transfer, 
but  other  collateral  questions  were  raised  in  respect  of  the  alleged 
Cuban  sympathies  of  de  Messa;  service  on  behalf  of  the  Cuban  in- 
surgents in  the  United  States;  and  the  relation  of  the  United  States 
consul  to  the  transactions  which  preceded  the  seizure.  It  was  argued 
that  the  vessels  of  Cuban  insurgents  and  other  adherents  could  not  be 
deemed  property  of  the  enemies  of  the  United  States ;  that  this  capture 
could  not  be  sustained  on  the  ground  that  the  vessel  was  such  property ; 
that  the  conduct  of  de  Messa  in  his  sale  to  Beattie  was  lawful,  justifi- 
able, and  the  only  means  of  protecting  the  vessel  as  neutral  property 
from  Spanish  seizure ;  and  finally,  that  this  court  could  and  should  do 
justice  by  ordering  restitution,  under  all  the  circumstances  of  the  case. 

Mr.  Chief  Justice  Fuller,  after  stating  the  case,  delivered  the  opin- 
ion of  the  court.®* 

If  the  alleged  transfer  was  colorable  merely,  and  Messa  was  the 
owner  of  the  vessel  at  the  time  of  capture,  did  the  District  Court  err 
in  condemning  the  Benito  Estenger  as  lawful  prize  as  enemy  property? 

"Enemy  property"  is  a  technical  phrase  peculiar  to  prize  courts,  and 
depends  upon  principles  of  public  policy  as  distinguished  from  the 
common  law.  The  general  rule  is  that  in  war  the  citizens  or  subjects 
of  the  belligerents  are  enemies  to  each  other  without  regard  to  individ- 
ual sentiments  or  dispositions,  and  that  political  status  determines  the 
question  of  enemy  ownership.  And  by  the  law  of  prize,  property  en- 
gaged in  any  illegal  intercourse  with  the  enemy  is  deemed  enemy  prop- 
erty, whether  belonging  to  an  ally  or  a  citizen,  as  the  illegal  traffic 
stamps  it  with  the  hostile  character  and  attaches  to  it  all  the  penal  con- 
sequences. Prize  cases,  2  Black,  635,  674,  17  L.  Ed.  459;  The  Sally, 
8  Cranch,  382,  384,  3  L.  Ed.  597;  Jecker  v.  Montgomery,  18  How. 
110,  15  L.  Ed.  311;  The  Peterhoft",  5  Wall.  28,  18  L.  Ed.  564;  The 
Flying  Scud,  6  Wall.  263,  18  L.  Ed.  755. 

Messa  was  a  Spanish  subject,  residing  at  Santiago,  and  for  years 
engaged  in  business  there.  His  vessel  had  a  Spanish  crew  and  Spanish 
ofBcers,  and  he  testified  that  he  was  on  board  of  her  as  supercargo. 

0  8  Parts  of  the  opinion  are  omitted. 


Ch.  17)  NEUTRAL    TRADE    "WITH    BELLIGERENTS  1031 

She  had  the  Spanish  flag  in  her  lockers,  though  she  was  flying  the 
British  flag  at  the  moment,  under  a  transfer,  which,  as  presently  to  be 
seen,  was  colorable  and  invalid.  There  was  evidence  tending  to  show 
that  Messa  sympathized  with  the  Cuban  insurgents,  but  no  proof  that 
he  was  himself  a  Cuban  rebel  or  that  he  had  renounced  his  allegiance  to 
Spain.  The  vessel  carried  to  Manzanillo  on  this  voyage  a  cargo  of 
provisions,  consisting  principally  of  eleven  hundred  barrels  of 
flour.     *     *     * 

Thus  far  we  have  proceeded  on  the  assumption  that  the  transfer  of 
the  Benito  Estenger  was  merely  colorable,  and  this,  if  so,  furnished 
in  itself  ground  for  condemnation.  A  brief  examination  of  the  evi- 
dence, in  the  light  of  ^yell-settled  principles,  will  show  that  the  assump- 
tion is  correct.     *     *     * 

Transfers  of  vessels  flagrante  bello  were  originally  held  invaHd,  but 
the  rule  has  been  modified,  and  is  thus  given  by  Mr.  Hall,  who,  after 
stating  that  in  France,  "their  sale  is  forbidden,  and  they  are  declared  to 
be  prize  in  all  cases  in  which  they  have  been  transferred  to  neutrals 
after  the  buyers  could  have  knowledge  of  the  outbreak  of  the  war," 
says:  "In  England  and  the  United  States,  on  the  contrary,  the  right 
to  purchase  vessels  is  in  principle  admitted,  they  being  in  themselves 
legitimate  objects  of  trade  as  fully  as  any  other  kind  of  merchandise, 
but  the  opportunities  of  fraud  being  great,  the  circumstances  attending 
a  sale  are  severely  scrutinized,  and  the  transfer  is  not  held  to  be  good 
if  it  is  subjected  to  any  condition  or  even  tacit  understanding  by  which 
the  vendor  keeps  an  interest  in  the  vessel  or  its  profits,  a  control  over 
it,  a  power  of  revocation,  or  a  right  to  its  restoration  at  the  conclusion 
of  the  war."  International  Law  (4th  Ed.)  525.  And  to  the  same  effect 
is  Mr.  Justice  Story,  in  his  Notes  on  the  Principles  and  Practice  of 
Prize  Courts  (Pratt's  Ed.)  63,  2  Wheat.  App.  30 :  "In  respect  to  the 
transfers  of  enemies'  ships  during  the  war,  it  is  certain  that  purchases 
of  them  by  neutrals  are  not,  in  general,  illegal :  but  such  purchases  are 
liable  to  great  suspicion ;  and  if  good  proof  be  not  given  of  their  va- 
lidity by  a  bill  of  sale  and  payment  of  a  reasonable  consideration,  it 
will  materially  impair  the  validity  of  a  neutral  claim ;  *  *  *  ^^id 
if  after  such  transfer  the  ship  be  employed  habitually  in  the  enemy's 
trade,  or  under  the  management  of  a  hostile  proprietor,  the  sale  will  be 
deemed  merely  colorable  and  collusive.  *  *  *  Anything  tending  to 
continue  the  interest  of  the  enemy  in  the  ship  vitiates  a  contract  of 
this  description  altogether." 

The  Sechs  Geschwistern,  4  C.  Rob.  100,  is  cited,  in  which  Sir  Wil- 
liam Scott  said :  "This  is  the  case  of  a  ship,  asserted  to  have  been 
purchased  of  the  enemy;  a  liberty  which  this  country  has  not  denied 
to  neutral  inerchants,  though  by  the  xegulation  of  France,  it  is  entirely 
forbidden.  The  rule  which  this  country  has  been  content  to  apply  is, 
that  property  so  transferred,  must  be  bona  fide  and  absolutely  trans- 
ferred ;  that  there  must  be  a  sale  divesting  the  enemy  of  all  further  in- 


1032  RIGHTS   AND  DUTIES   OP  NATIONS  IN  TIME  OF  WAR         (Part  3 

terest  in  it ;  and  that  anything  tending  to  continue  his  interest,  vitiates 
a  contract  of  this  description  altogether." 

In  The  Jemmy,  4  C.  Rob.  31,  the  same  eminent  jurist  observed: 
"This  case  has  been  admitted  to  farther  proof,  owing  entirely  to  the 
suppression  of  a  circumstance,  which  if  the  court  had  known,  it  would 
not  have  permitted  farther  proof  to  have  been  introduced;  namely, 
that  the  ship  has  been  left  in  the  trade,  and  under  the  management  of 
her  former  owner.  Wherever  that  fact  appears,  the  court  will  hold  it 
to  be  conclusive,  because,  from  the  evidentia  rei,  the  strongest  presump- 
tion necessarily  arises,  that  it  is  merely  a  covered  and  pretended  trans- 
fer. The  presumption  is  so  strong,  that  scarcely  any  proof  can  avail 
against  it.  It  is  a  rule  which  the  court  finds  itself  under  the  absolute 
necessity  of  maintaining.  If  the  enemy  could  be  permitted  to  make  a 
transfer  of  the  ship,  and  yet  retain  the  management  of  it,  as  a  neutral 
vessel  it  would  be  impossible  for  the  court  to  protect  itself  against 
frauds." 

And  in  The  Omnibus,  6  C.  Rob.  71,  he  said:  "The  court  has  often 
had  occasion  to  observe,  that  where  a  ship,  asserted  to  have  been  trans- 
ferred, is  continued  under  the  former  agency  and  in  the  former  habits 
of  trade,  not  all  the  swearing  in  the  world  will  convince  it  that  it  is  a 
genuine  transaction." 

The  rule  was  stated  by  Judge  Cadwalader  of  the  Eastern  District 
of  Pennsylvania  thus :  "The  rule  of  decision  in  some  countries  has 
been  that,  as  to  a  vessel,  no  change  of  ownership,  during  hostilities  can 
be  regarded  in  a  prize  court.  In  the  United  States,  as  in  England,  the 
strictness  of  this  rule  is  not  observed.  But  no  such  change  of  prop- 
erty is  recognized  where  the  disposition  and  control  of  a  vessel  contin- 
ue in  the  former  agent  of  her  former  hostile  proprietors ;  more  es- 
pecially when,  as  in  this  case,  he  is  a  person  whose  relations  of  resi- 
dence are  hostile."    The  Island  Belle,  13  Fed.  Cases,  168.     *     *     * 

In  The  Soglasie,  Spinks  Prize  Cases,  104,  Dr.  Lushington  held  the 
onus  probandi  to  be  upon  the  claimant,  and  made  these  observations : 
"With  regard  to  documents  of  a  formal  nature,  though  when  well 
authenticated  they  are  to  be  duly  appreciated,  it  does  not  follow  that 
they  are  always  of  the  greatest  weight,  because  we  know,  without  at- 
tributing blame  to  the  authorities  under  which  they  issue,  they  are 
instruments  often  procured  with  extraordinary  facility.  What  the 
court  especially  desires  is  that  testimony  which  bears  less  the  appear- 
ance of  formality — evidence  natural  to  the  transaction,  but  which  often 
carries  with  it  a  proof  of  its  own  genuineness ;  the  court  looks  for  that 
correspondence  and  other  evidence  which  naturally  attends  the  trans- 
action, accompanies  it,  or  follows  it,  and  which  when  it  bears  upon  the 
face  of  it  the  aspect  of  sincerity,  will  always  receive  its  due 
weight." 

In  The  Ernst  Merck,  Spinks  Prize  Cases,  98,  the  sale  was  to  neutrals 
of  Mecklenburg  shortly  before  the  breaking  out  of  war,  and  it  was 


Ch.  17)  NEUTRAL   TRADE    WITH    BELLIGERENTS  1033 

ruled  that  the  onus  of  giving  satisfactory  proof  of  the  sale  was  on  the 
claimant,  and  without  it  the  court  could  not  restore,  even  though  it  was 
not  called  on  to  pronounce  affirmatively  that  the  transfer  was  fictitious 
and  fraudulent.  In  that  case  the  vessel  was  condemned  partly  because 
of  absence  of  proof  of  payment,  Dr.  Lushington  saying:  "We  all 
know  that  one  of  the  most  important  matters  to  be  established  by  a 
claimant  is  undoubted  proof  of  payment." 

To  the  point  that  the  burden  of  proof  was  on  the  claimant  see  also 
The  Jenny,  5  Wall.  183,  18  L.  Ed.  693  ;  The  Amiable  Isabella,  6  Wheat. 
1,  5  L.  Ed.  191 ;  The  Lilla,  2  CUff.  169,  Fed.  Cas.  No.  15,600;  Story's 
Prize  Courts,  26. 

We  think  that  the  requirements  of  the  law  of  prize  were  not  satisfied 
by  the  proofs  in  regard  to  this  transfer,  and  on  all  the  evidence  are 
of  opinion  that  tjie  court  below  was  right  in  the  conclusion  at  which 
it  arrived. 

Decree  affirmed. 

Mr.  Justice  Shiras,  Mr.  Justice  Whiter,  and  Mr.  Justice  Pkckham 
dissented. 


THE  DACIA. 
(French  Council  of  State,  1916.    Journal  Officiel,  January  14,  1917,  p.  498.) 

The  President  of  the  French  Republic,  acting  on  the  report  of  the 
Division  of  Legislation,  Justice,  and  Foreign  Afi"airs, 

In  view  of  the  summary  appeal  and  the  detailed  memorandum,  pre- 
sented by  Mr.  Breitung,  of  Marquette,  Michigan,  U.  S.  A.,  and  regis- 
tered with  the  Secretai-y  General  of  the  Council  of  State,  September 
23,  1915,  and  February  23,  1916,  petitioning  for  annulment  of  a  de- 
cision of  August  3  and  4,  1915,  of  the  Prize  Court,  which  decreed 
good  and  valid  the  capture  of  the  steamer  Dacia  by  the  French  auxil- 
iary cruiser  Europe  on  February  27,  1915, 

Wherein  the  stated  legal  grounds  of  the  appeal  are  that  under  article 
56  of  the  Declaration  of  the  Naval  Conference  of  London  of  February 
26,  1909,  which  was  declared  applicable  by  France  to  the  present  war, 
the  transfer  to  a  neutral  flag  of  a  vessel  that  was  enemy  property  is 
valid  and  can  be  sustained  as  against  the  belligerents  even  if  the  trans- 
fer is  made  after  the  outbreak  of  hostilities,  provided  that  it  is  proved 
that  the  purchaser  of  the  vessel  took  a  substantial  and  legitimate  in- 
terest, and  that  the  passing  of  the  title  and  the  transfer  of  flag  were  not 
efifected  for  the  purpose  of  evading  the  consequences  that  enemy  char- 
acter of  a  ship  involves ;  that  in  fact  the  petitioner  acquired  the 
Dacia  only  because  the  steamer  was  bought  at  an  advantageous  price 
and  was  necessary  to  him  to  carry  on  his  maritime  business ;  that, 
moreover,  he  can  not  be  required  to  prove  that  the  vendor,  the  Ham- 
burg-American Company,  was  influenced  by  considerations  not  connect- 


1034  RIGHTS  AND  DUTIES   OF  NATIONS   IN  TIME   OF  WAR         (Part  3 

ed  with  the  risk  of  capture;  that  it  had,  moreover,  a  certain  interest 
in  getting  rid  of  a  ship  that  was  already  old ;  that  the  fact  that  a  con- 
tract had  been  made  by  a  business  agent  for  the  carriage  of  a  cargo  of 
cotton  to  Bremen  by  the  Dacia  while  still  under  the  German  flag  and 
before  the  petitioner  had  bought  it  cannot  prejudice  the  latter ;  that  said 
contract  to  which  he  was  not  a  part}-  can  not  be  pleaded  against  him, 
and  that  the  Dacia,  as  soon  as  it  became  his  propertv",  was  laden  for 
Rotterdam,  a  neutral  port;  that,  moreover,  the  fact  that  a  vessel,  after 
transfer  of  flag,  continues  to  ply  on  the  same  routes  as  before,  does  not 
raise  a  presumption  that  the  transfer  is  null,  in  accordance  with  the 
decision  made  when  the  Declaration  of  London  of  1909  was  drafted ; 
wherefore,  the  petitioner  asks  that  the  transfer  of  the  Dacia  from  the 
German  flag  to  the  American  flag  be  declared  valid,  and  that  the 
French  government  pay  the  petitioner :  (1)  The  valye  of  the  vessel  il- 
legally seized,  and  of  its  different  fittings  and  furnishings,  the  total  to 
be  fixed  by  inventory ;  (2)  the  sum  of  300,000  francs  by  way  of  dam- 
ages for  the  unjustified  capture  of  the  vessel,  according  to  article  64 
of  the  Declaration  of  London ;  (3)  damages  to  be  fixed  by  inventory  to 
repair  the  loss  sustained  as  a  consequence  of  the  detention  of  the 
vessel,  at  the  rate  of  82,000  a  day  from  Februar}'  27  to  May  10,  1915, 
and  according  to  a  figure  to  be  determined  after  the  latter  date;  (4) 
a  sum  to  be  fixed  later  for  freight  and  demurrage ;     *     *     * 

In  view  of  the  Declaration  of  London  of  February  26,  1909.  concern- 
ing the  law  of  maritime  warfare,  together  with  the  Decree  of  No- 
vember 6,  1914,  applying  the  rules  of  the  said  Declaration  with  certain 
amendments  and  additions ;     *     *     * 

In  view  of  the  Decree  of  July  7,  1916,  repealing  that  of  November  6, 
1914; 

Whereas,  the  Prize  Court,  in  declaring  good  and  valid  the  cap- 
ture of  the  steamer  Dacia  by  the  French  auxiliary  cruiser  Europe 
on  February  27,  1915,  was  of  opinion  that  the  transfer  to  a  neutral 
flag  of  this  vessel,  bought  from  the  German  Hamburg-American  Navi- 
gation Compan}^  by  Mr.  Breitung,  an  American  citizen,  could  not,  hav- 
ing regard  to  the  circumstances  in  which  it  was  made,  be  operative  as 
against  the  belligerents,  by  reason  of  the  provisions  of  article  56  of 
the  Declaration  of  London  of  Februan.-  26,  1909,  as  follows:  "The 
transfer  of  an  enemy  vessel  to  a  neutral  flag  effected  after  the  outbreak 
of  hostilities,  is  void  unless  it  is  proved  that  such  transfer  was  not 
made  in  order  to  evade  the  consequences  to  which  an  enemy  vessel,  as 
such,  is  exposed  j"     *     *     * 

A\'hereas,  it  is  unnecessar)'  to  pronounce  upon  the  regularit}-  of 
the  transfer  of  title  of  the  Dacia  or  that  of  its  registn.'  under  the 
American  flag,  as  it  does  not  appear  anywhere  in  the  examination  nor  in 
any  evidence  produced  by  Mr.  Breitung  that  the  sale  of  the  Dacia  to 
him  by  the  Hamburg-American  Company  was  not  caused  principally 
by  fear  of  seeing  the  vessel  seized  and  captured  by  the  navies  of  the 


Ch.  17)  NEUTRAL    TRADE    WITH    BELLIGERENTS  1035 

Allied  Powers  from  the  moment  of  its  first  voyage ;  whereas,  a  contrary 
presumption  arises  especially,  first,  from  the  fact  that  the  Hamburg- 
American  Company,  whose  commercial  fleet  was  by  reason  of  the  war 
partly  laid  up  in  American  ports,  had  an  interest  to  gain  in  alienating 
the  units  composing  this  fleet  to  the  advantage  of  ressortissants  of  a 
neutral  state,  the  validity  of  such  sale  being  conditioned  on  an  authori- 
zation for  the  vessel  to  fly  the  flag  of  the  United  States;  and  second- 
ly, from  the  fact  that  the  contract  of  affreightment  of  January  17, 
1915,  between  Mr.  Breitung  and  the  firm  of  Tom  Owens  &  Co.  to 
transport  a  cargo  of  eleven  thousand  bales  of  cotton  destined  for 
Germany  on  the  Dacia  was  only  a  confirmation,  with  a  few  modifica- 
tions, of  a  contract  of  the  same  nature  entered  into  through  a  Mr, 
Egon  von  Novelly  the  preceding  December  9  before  the  sale  of  the 
vessel,  respecting  the  same  quantity  of  cotton  to  be  shipped  to  Bremen 
on  the  Dacia  for  the  account  of  the  same  shippers;  that  the  circum- 
stance relied  upon  by  the  petitioner  that  according  to  the  agreement 
of  January  17,  1915,  the  vessel  was  laden  not  for  the  port  of  Bremen 
but  for  the  neutral  port  of  Rotterdam,  did  not  at  all  change  the  nature 
of  the  transaction,  as  the  final  destination  of  the  cargo  was  not  modi- 
fied; 

Whereas,  in  these  circumstances,  the  Prize  Court  has  correctly 
given  judgment  that  such  a  transfer  to  a  neutral  flag,  having  for  its 
object  to  permit  enemy  trade  and  to  withdraw  the  vessel  from  the 
risk  of  capture,  was  not  admissible  against  the  captor  state,  and  that 
therefore  Mr.  Breitung  had  no  grounds  on  which  to  rest  a  claim  for 
the  annulment  of  the  decision  decreeing  the  capture  of  the  steamer 
Dacia  good  and  valid; 

Having  heard  the  Council  of  State,  decrees : 

Article  1.  The  appeal  of  Mr.  Breitung  is  dismissed.     *     *     *  59 

59  In  The  Dacia,  French  Prize  Court,  1915,  Journal  Officiel,  September  28, 
1915,  p.  6914,  from  which  an  appeal  was  taken  the  learned  reporter,  Mr.  Henri 
Fromageot  had  said: 

"But  whereas,  when,  at  the  time  article  56  of  the  Declaration  of  London 
was  being  prepared,  certain  proposals  had  been  made  to  condition  solely 
upon  good  faith  the  validity  of  the  transfer  of  the  flas:  with  respect  to 
belligerents,  a  difference  of  opinion  was  manifested  on  the  subject  of  the 
meaning  of  the  term  'good  faith'  proposed  as  the  criterion  of  validity;  whereas, 
the  United  States  delegation  appeared  to  hold  that  good  faith  existed  if  the 
contract  relating  to  the  transfer  was  sincere  and  definitive,  and  bore  no  evi- 
dence of  anything  fictitious  or  irregular ;  but  the  German  and  English  inter- 
pretations of  good  faith  included  the  absence,  among  the  reasons  of  the  trans- 
fer, of  any  intention  to  protect  the  ship  from  the  consequences  of  the  right 
of  capture:  whereas,  on  this  point,  according  to  the  inten)retations,  as  well  as 
according  to  the  original  text  offered  for  adoption  at  the  Naval  Conference 
of  London,  as  No.  35  of  the  subjects  for  discussion,  the  transfer  could  be  re- 
garded as  valid  only  if  there  was  reason  to  believe  that  it  would  have  been 
effected  just  the  same  had  the  war  not  occun-ed  (Blue  Book,  pp.  183  and  260) ; 

"Whereas,  it  is  the  latter  interpretation  that  the  framers  of  the  Declaration 
of  T>ondon  decided  upon  in  adopting  the  text  of  the  above  mentioned  topic  of 
discussion,  at  the  same  time  indicating  the  possibility  of  evidence  in  rebuttal, 
except  in   certain  cases  not  bearing  upon  the  present  case; 

"Whereas,  the  report  presented  to  the  conference  with  regard  to  the  vari- 


1036  EIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

CHAPTER  XVIII 
ADJUDICATION  OF  PRIZE 


SECTION  L— CONDEMNATION  1 


THE  HULDAH. 
(High  Court  of  Admiralty,  1801.    3  C.  Rob.  235.) 

This  was  one  of  several  cases  of  ships  and  cargoes  carried  into  St. 
Domingo,  and  proceeded  against  in  a  court  of  admiralty,  which  was 
held  not  to  be  vested  with  competent  authority  to  proceed  in  prize 
causes.     In  consequence  of  that  mistake,  original  proceedings  were 

ous  provisions,  especially  Article  56  of  the  Declaration,  clearly  indicated  that 
the  transfer  in  order  to  be  valid  as  against  belligerents  should  not  have  been 
actuated  by  the  existence  of  the  war  (Blue  Book,  p.  326,  and  page  212),  but,  for 
example,  by  inheritance; 

"Whereas,  this  view  was  adopted  by  German  legislation  (Prize  Regulations 
of  Sept.  30,  1909,  c.  2,  art.  12,  Reichsgesetzblatt,  August  3,  1914)  according  to 
which  the  transfer  is  valid  only  when  the  captor  is  convinced  'that  the 
transfer  would  have  been  made  even  had  the  war  not  broken  out,  for  example, 
through  inheritance  or  building  contract';  by  Austrian  legislation  (Service 
Regulations  for  the  I.  and  R.  Navy,  May  2,  1913,  3  art.  3)  which  simply  re- 
produces the  text  of  article  56  of  the  Declaration  of  London;  by  Russian 
legislation  (Prize  Regulations,  March  27,  1895,  art.  7)  according  to  which  it 
must  be  proved  that  the  transfer  was  not  made  in  order  to  protect  enemy 
property;  by  British  legislation,  which  made  the  Declaration  of  London  ap- 
plicable during  the  war  in  the  same  terms  as  the  French  decree  of  November 
6,  1914,  cited  above  (Order  in  Council,  Oct.  29,  1914) ;  and  by  Italian  juris- 
prudence and  legislation  (Decree  of  June  3,  1915,  Gaz.  Uff.  No.  150  of  June  15, 
1915);     *     *     *     * 

•Whereas,  it  is  proven  that  not  only  had  the  ship,  after  its  transfer,  continued 
its  commerce  with  the  enemy  as  before,  thus  bringing  it  within  other  anal- 
ogous cases  (case  of  The  Jemmy  in  England,  July  17,  1801,  6  Rob.  31,  1 
English  Prize  Cases,  337 ;  case  of  The  Benito  Estenger,  in  the  United  States, 
March  5,  1900,  176  U.  S.  568,  20  Sup.  Ct.  489,  44  L.  Ed.  592 ;  Story,  Notes  on 
the  Principles  and  Practice  of  Prize  Courts,  [Pub.  by  Pratt,  1S54]  p.  63),  but 
that  at  the  time  of  its  capture  it  was  accomplishing  the  very  voyage  for 
which  it  had  been  chartered  when  it  was  under  the  German  flag  and  in  view 
of  which  it  had  been  transferred  to  a  neutral  flag; 

"Whereas,  such  a  transfer  to  a  neutral  flag  with  the  object  of  carrying  on 
enemy  trade  and  of  protecting  the  ship  from  capture  cannot  be  valid  against 
belligerents.     *     *     * " 

In  the  case  of  The  Daksa,  L.  R.,  [1917]  App.  Cas.  386,  it  appeared  that  a 
sale  had  been  made  previous  to  war,  in  order  to  evade  capture  by  the  French. 
As  the  sale  had  not  been  made  in  order  to  escape  capture  at  the  hands  of 
the  British,  it  was  held  to  be  valid  and  the  vessel  released. 

1  It  was  the  practice  of  the  High  Court  of  Admiralty  to  restore  property 
under  the  amount  of  one  hundred  pounds  without  the  expense  of  a  formal 
claim,  to  avoid  disproportionate  expense.?.  In  The  Mercurius,  5  C.  Rob.  127. 
128  (1804),  the  counsel  requested  the  court  "to  allow  the  same  indulgence  to 


Ch.  18)  ADJUDICATION  OP  PRIZE  1037 

instituted  afterwards  in  the  High  Court  of  Admiralty,  on  the  petition 
of  the  claimants,  by  a  monition  calling  on  the  captors  to  proceed  to 
adjudication. 

The  claim,  in  the  present  case,  was  not  given  till  a  year  and  nine 
months  after  the  sentence  of  condemnation  passed  in  the  court  of  St. 
Domingo.    The  captors  appeared  under  protest. 

In  support  of  the  protest,  the  King's  Advocate  and  Arnold.  It  will 
be  a  case  of  great  hardship  on  the  captors,  if  they  should  be  obliged 
to  answer  at  this  distance  of  time,  when  distribution  has  actually  been 
made.  The  court  of  St.  Domingo,  under  which  they  have  hitherto 
proceeded,  was  properly  constituted  as  a  civil  Court  of  Admiralty, 
and  his  Majesty's  instructions  were  addressed  to  it  as  a  prize  court; 
but,  by  a  mistake,  no  warrant  had  been  issued  to  give  it  a  prize  jurisdic- 
tion against  France  and  Holland,  although  there  had  been  a  prize 
warrant  against  Spain.  Owing  to  this  oversight  alone  it  is,  that  the 
acts  which  have  been  done  therein  are  mere  nullities.  The  captors 
knew  nothing  of  this  defect  of  jurisdiction;  they  proceeded  regularly, 
and  obtained  condemnation.     *     *     * 

On  the  other  side,  Lawrence  and  Swabey. 

*  *  *  f  he  court  has  already  determined  that  the  prize  proceed- 
ings of  the  court  of  St.  Domingo  are  to  be  taken  as  nullities ;  and  that 
all  claims  for  property  carried  in  there  are  to  be  considered  as  if  no 
proceedings  had  taken  place.  It  is  a  fundamental  principle  of  mari- 
time jurisprudence,  that  the  claimant  was  bound  to  go  to  the  tribunal 
to  which  the  captor  had  carried  his  property.  He  could  not  be  sup- 
posed to  know  whether  it  was  a  competent  jurisdiction  or  not;  it  lies 
on  the  captor  to  institute  right  proceedings  in  a  proper  place ;  and  if  he 
do€s  not,  from  whatever  cause  it  may  arise,  the  claimant  cannot  be 

a  property  estimated  only  at  100  guineas."  Sir  William  Scott,  however,  held 
that  "it  was  necessary  to  confine  this  Indulgence  to  some  definite  amount ; 
that  whatever  was  the  sum  fixed,  there  would  be  always  other  sums  just  ex- 
ceeding that,  which  might  not  be  distinguishable  in  principle ;  at  the  same  time 
that  it  was  necessary  to  adhere  to  the  rule  laid  down." 

"Treating  the  proceedings  in  the  District  Court  as  in  admiralty,  they  are 
without  validity.  The  admiralty  jurisdiction  of  the  District  Court  extends 
only  to  seizures  on  navigable  waters,  not  to  seizures  on  land.  The  difference 
is  important,  as  cases  in  admiralty  are  tried  witliout  a  jury,  whilst  in  cases 
at  law  the  parties  are  entitled  to  a  jury,  unless  one  is  waived.  United  States 
V.  The  Betsey,  and  Charlotte,  4  Cranch,  443.  2  L.  Ed.  iJT.i  (ISOS) ;  The  Sarah,  8 
Wheat.  391,  5  L.  Ed.  644  (1823)."  U.  S.  v.  Winchester,  99  U.  S.  372,  374,  25  L. 
Ed.  479  (1878),  per  Field,  J. 

"By  the  law  of  nations,  as  recognized  and  administered  In  this  country,  when 
movable  property  in  the  hands  of  the  enemy,  used,  or  intended  to  be  used, 
for  hostile  purposes,  is  captured  by  land  forces,  the  title  passes  to  the  captors 
as  soon  as  they  have  reduced  the  property  to  firm  possession ;  but  when  such 
property  is  captured  by  naval  forces,  a  judicial  decree  of  condemnation  is 
usually  necessary  to  complete  the  title  of  the  captors.  1  Kent,  Com.  102.  110; 
Halleck's  International  Law,  c.  19.  §  7,  and  chapter  30,  §  4 ;  Kirk  v  Lvnd 
106  U.  S.  315,  317,  1  Sup.  Ct.  296,  27  L.  E<1.  193  (1SS2^."  Oakes  v.  U  S.  '  174 
U.  S.  778,  7S6,  19  Sup.  Ct.  864,  43  I*  Ed.  1169  (1898),  per  Gray,  J.  See  Com- 
modore Stewart's  Case,  p.  1039. 


1038  RIGHTS  AND  DUTIES  OP  NATIONS  IN  TIME  OF  WAR         (Part  3 

precluded  from  seeking  redress  at  any  time  when  he  may  receive  the 
necessary  information,  and  finds  an  opportunity  of  so  doing.  Till 
prize  has  been  brought  to  adjudication  before  a  competent  court,  the 
claimant  is  not  barred  by  time,  and  cannot  come  too  late  to  be  heard. 
The  captors,  in  this  instance,  have  not  obtained  the  sentence  of  a 
competent  court;  without  that,  no  laches  of  the  claimant  can  give 
them  a  title,  unless  it  could  be  said  also,  that  a  common  pirate  could 
obtain  a  title  by  such  forbearance.  It  is  impossible  to  sustain  this  pro- 
test as  a  bar  to  our  claim,  unless  one  of  these  three  things  could  be 
maintained ;  either  that  the  sentence  of  this  court  could  proceed  to 
affirm  the  sentence  of  an  incompetent  court,  or  unless  it  could  condemn, 
without  any  proceeding,  (the  object  of  the  protest  being  to  bar  us  from 
any  proceeding  at  all) ;  or  unless  it  could  leave  the  property  in  the 
hands  of  these  persons,  as  held  by  a  just  title,  without  any  proceed- 
ings whatever. 

Sir  W.  Scott.  This  is  a  very  hard  case  on  the  captors ;  but  I  do  not 
think  it  is  in  my  power  to  relieve  them  from  the  necessity  of  proceed- 
ing to  adjudication.  During  the  existence  of  the  prize  commission, 
there  is  no  fixed  and  definite  time  by  which  the  party  can  be  said  to  be 
legally  barred  from  calling  on  the  captor  to  proceed  to  adjudication, 
although  it  may  be  proper  to  hold,  that  there  must  exist  a  time  whidh 
would  work  such  an  effect;  but  I  know  of  no  prescribed  limitation 
against  the  admission  of  a  claim,  nor  of  any  other  means  by  which  the 
captor  can  protect  himself  but  by  applying  to  a  court  of  competent 
jurisdiction.  If  he  neglects  to  apply  to  any  tribunal,  he  would  be 
guilty  of  a  great  misdemeanor ;  if,  through  misapprehension,  he  applies 
to  an  improper  tribunal,  though  he  may  defend  himself  against  the 
charge  of  a  misdemeanor,  he  cannot  protect  himself  from  the  call  of  the 
claimant  to  proceed  to  adjudication  before  a  competent  tribunal.  In 
this  case  there  is  no  imputation  of  misconduct;  the  captor  went  to  a 
court  which  was  sitting  at  St.  Domingo,  apparently  with  competent 
authority ;  in  that  court  he  obtained  a  sentence  of  condemnation,  and 
distribution  has  taken  place  in  consequence  of  it.  But  that  court  hav- 
ing no  authority,  those  proceedings  are  null  and  of  no  legal  effect  what- 
ever. On  the  other  hand,  it  was  the  duty  of  the  claimant  to  have 
brought  this  matter  before  the  court  as  soon  as  he  could,  as  it  is  always 
in  the  power  of  the  claimant  to  compel  the  captor  to  proceed,  if  he 
neglects  to  do  so  himself.  It  might,  perhaps,  appear  to  the  claimant, 
who  is  not  bound  to  look  to  the  nature  of  the  jurisdiction,  by  an  ob- 
ligation equal  to  that  of  the  captor,  that  the  court  was  not  incompetent ; 
it  might  be  a  common  error.  In  that  case  it  would  be  something  to 
show  that  he  had  entered  an  appeal.  The  appeal,  it  is  true,  could  not 
have  been  received,  as  it  came  from  a  court  which  had  no  legal  ex- 
istence ;  but  it  would  have  proved  the  parties  to  have  used  diligence, 
which  might  be  material,  if  questions  of  costs  and  damages  should 
arise.    There  existed  something  of  difficulty,  a  sort  of  cloud  of  uncer- 


Ch.  18)  ADJUDICATION  OF  PRIZE  1039 

tainty  on  the  minds  of  persons  as  to  the  competency  of  the  court,  which 
might  account  for  some  part  of  this  delay.  However,  the  claimant  has 
now  applied  to  this  court ;  and  I  am  of  opinion  that  the  court  is  under 
the  legal  duty  of  admitting  the  claim,  and  that  it  cannot  relieve  the 
captor  from  the  obligation  of  proceeding  to  adjudication. 

Protest  overruled. 

An  absolute  appearance  being  given  for  the  captors,  the  cause  was 
heard  on  the  merits,  when  the  court  decreed  restitution  of  the  principal 
part  of  the  cargo  belonging  to  the  owner  of  the  ship. 


COMMODORE  STEWART'S  CASE. 

(Court  of  Claims  of  the  United  States,  1864.    1  Ct.  CI.  113.) 

Casey,  C.  J.,  delivered  the  opinion  of  the  court. 

The  claimant  sets  forth  in  his.  petition  that,  on  the  20th  February, 
1815,  he  was  a  captain  in  the  navy  of  the  United  States  and  was  in 
command  of  the  United  States  frigate  Constitution,  That  on  that 
day  he  overtook,  on  the  high  seas,  about  sixty  leagues  from  the  island 
of  Madeira,  the  British  ships-of-war  Cyane  and  Levant  and  engaged 
them;  and,  after  a  sharp  conflict  of  forty  minutes,  they  surrendered 
to  him  and  he  took  possession  of  them  as  prizes  of  war.  He  proceeded 
with  them  and  his  own  ship  to  the  island  of  St.  lago,  in  the  possession 
of  the  troops,  and  subject  to  the  dominion  of  the  prince  regent  of 
Portugal,  with  whom  the  United  States  were  then  at  peace,  and  who 
had  issued  a  declaration  of  neutrality  between  the  belligerents — the 
United  States  and  Great  Britain. 
N  Having  come  to  anchor  in  the  port  of  Praya,  on  the  10th  of  March, 
1815,  and  while  he  was  preparing  to  divest  himself  of  the  prisoners 
taken  on  the  Cyane  and  Levant  by  sending  them  to  Barbadoes,  he 
discovered  on  the  following  day,  off  the  port,  a  squadron  consisting 
of  three  British  ships-of-war,  the  Leander,  New  Castle,  and  Acasta; 
but  which,  in  consequence  of  the  prevalence  of  a  dense  fog,  were  not 
discovered  until  within  three  miles,  and  standing  in  for  anchorage. 
Being  apprehensive  that  the  enemy  would  not  respect  the  immunity 
afforded  by  a  neutral  port,  Captain  Stewart  put  to  sea  with  the  Con- 
stitution and  his  prizes,  and  the  squadron  immediately  gave  chase. 
After  about  an  hour's  chase,  finding  the  Cyane  sailing  dull  and  drop- 
ping down  on  the  Acasta,  he  signalled  her  to  tack,  which  she  immediate- 
ly did,  doubled  the  rear  of  the  enemy  and  afterwards  arrived  safely 
at  New  York.  The  enemy  took  no  notice  of  the  Cyane's  change  of 
course,  but  continued  the  pursuit  of  the  Constitution  and  Levant. 
Soon  after  he  discovered  the  Levant  dropping  down  in  the  same  way 
that  the  Cyane  had  done,  and  he  ordered  her  also  to  tack,  which  she 
did.  The  enemy  continued  the  chase  after  her,  cut  off  her  retreat, 
and  forced  her  back  into  the  port  of  Praya,  where  she  came  to  anchor 


1040  RIGHTS  AND   DUTIES   OF   NATIONS   IN  TIME   OF  WAR         (Part  3 

close  to  the  battery.  She  was  in  this  position  when  the  enemy's  ships 
stood  in,  fired  at  her,  and  forced  her  to  surrender,  took  possession  of 
her  and  carried  her  out  of  the  harbor,  without  the  Portuguese  authori- 
ties attempting  to  hinder  or  prevent  them,  or  offering  any  resistance 
or  remonstrance  to  the  violation  of  the  neutral  rights  and  sovereignty 
of  Portugal.     *     *     *  2 

The  petition  also  avers  that  he  and  those  for  whom  he  claims  are 
citizens  of  the  United  States,  and  can  have  no  redress  against  the 
Portuguese  government,  from  whom  the  indemnity  is  due;  that  it 
was  and  is  the  duty  of  the  United  States  to  prosecute  and  enforce  the 
claim,  on  their  behalf,  against  Portugal,  and  on  the  recovery  of  the 
amount  to  distribute  the  same  to  him,  his  officers  and  crew ;  that  there 
was  a  convention  between  the  two  governments  in  1851  for  the  adjust- 
ment of  the  claims  of  citizens  of  the  United  States  against  Portugal, 
in  which  this  claim  was  not  included,  and  that  by  having  relinquished 
the  claim  without  the  authority  or  consent  of  claimants,  or  failed  to 
prosecute  and  enforce  it,  the  United  States  became  liable  to  pay  it 
themselves. 

The  fifth  and  sixth  sections  of  the  Act  of  Congress  approved  23d 
April,  1800  (1  Stat.),  in  force  at  the  time  of  the  capture  of  these 
vessels,  gave  the  captors  the  whole  of  the  captured  vessels,  where 
they  were  superior  in  force  to  the  vessel  making  the  capture.  The 
Cyane  was  libelled  in  the  Admiralty  Court  at  New  York  and  duly 
condemned  as  good  and  lawful  prize  to  the  captors.  The  claimant 
contends  that  by  the  capture  of  the  Levant  the  prize  vested  in  him 
and  his  crew;  that  the  recapture  under  the  circumstances  alleged  was 
illegal,  and  that  Portugal  was  liable  to  the  United  States,  and  they 
to  the  claimants,  for  the  value  of  the  prize. 

To  this  petition  the  solicitor  for  the  United  States  has  demurred,  and 
assigns  for  cause  of  demurrer: 

■  1st.  That  the  petition  sets  forth  no  valid  ground  of  claim, 

2d.  That  it  does  not  appear  that  the  United  States  had  released 
Portugal,  or  relinquished  any  claim  the  plaintiffs  have  upon  her  for 
indemnity.     *     *     * 

The  argument  on  behalf  of  the  claimants  assumes  that  the  captors 
had  a  right  and  title  to  the  captured  ship,  and  of  which  they  were 
illegally  divested  or  deprived. 

There  is  no  doubt  if  this  vessel  had  reached  a  port  of  the  United 
States  she  would  have  been  condemned  as  a  good  prize  to  the  claim- 
ants; for  the  Cyane,  taken  in  the  same  engagement  and  at  the  same 
time,  was  actually  so  condemned.  The  title  to  property  lawfully  taken 
in  war  may,  upon  general  principles,  be  considered  as  immediately  di- 
vested out  of  the  original  owner  and  transferred  to  the  captor.     As 

2  The  question  concerning  capture  in  neutral  waters  is  omitted.  For  this 
question,  see  ante,  p.  848. 


Ch.  IS)  ADJUDICATION   OF   PRIZE  1011 

to  personal  property,  it  is  considered  as  lost  to  the  owner  as  soon 
as  the  enemy  has  acquired  a  firm  possession,  which  is  in  general  con- 
sidered as  taking  place  after  the  lapse  of  twenty-four  hours,  or  after 
the  booty  has  been  carried  into  a  place  of  safety,  infra  prsesidia.  Gro- 
tius.  Lib.  Ill,  c.  6,  §  3 ;  Id.  c.  9,  §  14 ;  Kliiber,  Droit  des  Gens  Moderne 
de  I'Europe,  §  254;  Vattel,  bk.  Ill,  c.  14,  §  196;  c.  14,  §  209;  Heffter, 
das  Europaische  Volkerrecht,  §  136. 

It  is  upon  authorities  like  the  foregoing  that  the  right  and  title  of 
the  claimant^  in  the  present  case  is  predicated.  But  these  general 
expressions  refer  to  the  time  when  the  title  of  the  original  owner  is 
divested,  rather  than  when  the  right  of  the  individuals  making  the 
capture  vests.  Attention  for  a  moment  to  the  foundation  and  origin 
of  the  right  of  the  individual  to  the  captured  property  will  assist  us  in 
the  solution  of  this  question.  That  right  is  acquired  not  in  virtue  of  the 
seizure  of  it  as  enemies'  property,  but  by  grant  of  the  sovereign  whose 
commission  the  captor  bears.  Judge  Story  says :  "It  is  now  clear  that 
all  captures  in  war  inure  to  the  sovereign,  and  can  become  private  prop- 
ertv  only  by  his  grant."  The  Emulous,  1  Gall.  569,  Fed.  Gas.  No. 
4,479;  11  East,  619. 

The  right  to  all  captures  from  the  earliest  times  has  vested  primarily 
in  the  sovereign,  and  no  individual  can  have  any  interest  in  a  prize, 
whether  made  by  a  public  or  private  armed  vessel,  except  that  which 
he  receives  from  the  bountv  of  the  state.  Law  of  Maritime  Warfare, 
p.  374;  Valin,  Com.  II,  235;  Bynk.  c.  17;  Sir  L.  Jenkins'  Work,  p. 
714.  An  interest  in  a  prize  can  only  be  derived  from  the  government. 
1  Phillips  on  Insurance,  182,  §  320;  The  Joseph,  1  Gall.  558,  Fed. 
Cas.  No,  7,533;  11  East,  428.  It  is  even  denied  that  the  individual 
captors,  prior  to  condemnation,  have  any  insurable  interest  in  the 
captured  property.  Routh  v.  Thompson,  11  East,  432;  De  Vause  v. 
Steele,  6  Bingh.  N.  C.  370;  Lucena  v.  Crawford,  3  B.  &  P.  75 ;  5  B.  & 
P.  323;  Crawford  v.  Hunter,  8  T.  Rep.  13. 

The  principle  applicable  to  this  case  to  be  extracted  from  the 
authorities  cited,  is,  that  by  the  capture  of  this  ship  the  property  to 
it  vested  in  the  United  States,  and  whatever  right  to  or  title  in  it  the 
claimants  acquired  must  be  derived  from  their  sovereign  authority. 
Such  a  grant  is  set  up  under  the  act  of  Congress  approved  the  23d 
April,  1800,  §  5,  which  is  as  follows: 

"The  proceeds  of  all  ships  and  vessels,  and  the  goods  taken  on 
board  of  them,  which  shall  be  adjudged  good  prize,  shall,  when  of 
equal  or  superior  force  to  the  vessel  or  vessels  making  the  capture,  be 
the  sole  property  of  the  captors;  and  when  of  inferior  force,  shall  be 
divided  equally  between  the  United  States  and  th^  officers  and  men 
making  the  capture."    Bright.  Dig.  p.  665,  pi.  78.-'' 

8  An  "Act  to  reorganize  and  increase  the  efficiency  of  the  personnel  of  the 
Navy  and  Marine  Corps  of  the  United  States,"  approved  March  3,  1899,  re- 
ScoiT  Ijst.Law— GG 


1042  RIGHTS   AND   DUTIES   OF  NATIONS   IN   TIME   OF   WAR         (Part  3 

The  property  of  the  original  owner  cannot  be  considered  as  fully 
divested  until  there  has  been  a  condemnation  by  a  regular  prize  tribunal 
having  jurisdiction  of  the  subject-matter.  Until  such  adjudication  is 
made,  the  right  of  recapture  continues,  as  well  as  the  right  of  post- 
liminii.  And  in  case  the  captured  vessel  escapes,  is  recaptured,  or  is 
voluntarily  discharged,  the  jurisdiction  of  the  prize  court  is  lost,  and 
all  rights  acquired  by  the  capture  are  divested.  1  Kent's  Com.  359. 
The  Supreme  Court  of  the  United  States  say :  "The  right  of  capture 
is  a  limited  right,  is  derived  from  the  law,  and  is  subject  to  all  the 
restrictions  the  law  imposes,  and  is  to  be  exercised  in  the  manner  in 
which  its  wisdom  has  prescribed."  The  Thomas  Gibbons,  8  Cranch, 
421,  3  L.  Ed.  610. 

The  question  of  prize  may  always  be  contested,  either  on  account  of 
the  character  of  the  vessel  or  cargo,  the  conduct  of  the  captors,  or 
the  place  and  circumstances  where  and  under  which  the  capture  was 
made ;  and  until  their  right  is  established  by  the  sentence  of  a  compe- 
tent tribunal,  the  captors  are  not  invested  with  the  property.  Vincen's 
Exposition  Raisonnee  de  la  Legislation  Commerciale,  c.  17. 

A  citizen  may  seize  the  property  of  an  enemy  wherever  found,  and 
it  rests  with  the  sovereign  whether  he  will  ratify  and  consummate 
the  capture  by  proceeding  to  condemnation.  Per  Story,  J.,  The  Emu- 
lous, 1  Gall.  566,  Fed.  Cas.  No.  4,479. 

These  authorities  are  very  full  and  conclusive  that  this  capture, 
whatever  right  it  conferred  or  property  it  changed,  was  in  favor  of  the 
United  States.  It  remains  to  inquire  what  property  or  interest  the 
individual  captors  acquired  by  the  surrender  of  the  ship  and  her  con- 
veyance to  this  neutral  port.  The  claimants  contend  that  under  the 
act  cited  they  were  once  invested  with  the  right  to  the  vessel,  that  it 
operated  as  an  immediate  transfer  of  the  right  of  the  United  States 
to  them.  Such  a  position  is  assumed,  we  think,  without  due  attention 
to  the  form,  of  the  grant  and  the  character  of  the  grantor.  It  being 
the  grant  of  a  sovereign,  it  is  contrary  to  the  general  rule  to  be  taken 
most  strongly  against  the  grantee  and  in  favor  of  the  grantor.  It  can 
only  take  effect  when  its  stipulations,  limitations,  and  conditions  have 
been  complied  with.  The  act  prescribes  that  those  vessels  or  cargoes 
"which  shall  be  adjudged  good  prize"  shall  be  the  property  of  the 


pealed  "all  provisions  of  law  authorizing  tlie  distribution  among  captors  of  the 
whole  or  any  portion  of  the  proceeds  of  vessels,  or  any  property  hereafter  cap- 
tured, condemned  as  prize,  or  providing  for  the  payment  of  bounty  for  the 
sinlving  or  destruction  of  vessels  of  the  enemy  hereafter  occurring  in  time  of 
war."    30  U.  S.  Stat,  at  Large,  1004,  1007. 

The  laws  for  the  distribution  of  prize  moneys,  bounty  and  salvage,  as  they 
exist  in  Great  Britain  at  the  present  time,  are  to  be  found  in  Order  in  Council 
of  February  6,  1917  (London  Gazette,  February  9,  1917,  p.  1373) ;  Proclamation 
of  February  10,  1919  (London  Gazette,  February  11,  1919,  p.  2148);  and  Order 
in  Council  of  April  27,  1918  (London  Gazette,  May  3,  1918,  p.  5355). 

Scott  Int.Law 


Ch.  18)  ADJUDICATION   OF  PRIZE  1043 

captors.  This,  of  course,  upon  the  rule  we  have  stated,  excludes  all 
such  as  have  not  been  adjudged  good  prize;  for  expressio  unius,  est 
exclusio  alterius.  The  title  depends  upon  a  grant,  and  must  conform 
to  it  and  comply  with  its  conditions.  The  condition  in  this  case  is,  that 
it  shall  be  brought  in  and  condemned  as  lawful  prize  before  any  title 
accrues.  Chief  Justice  Taney  says:  "All  captures  jure  belli  are 
for  the  benefit  of  the  sovereign  under  whose  authority  they  are  made ; 
and  the  validity  of  the  seizure,  and  the  question  of  prize  or  no  prize, 
can  be  determined  in  his  own  courts  only  upon  which  he  has  con- 
ferred jurisdiction  to  try  the  question."  Jecker  v.  Montgomery,  13 
How.  515,  14  Lt.  Ed.  240.  To  the  same  effect  is  the  judgment  and 
opinion  of  Sir  William  Scott.  That  eminent  admiralty  judge  says : 
"All  grants  of  the  sovereign  are  to  be  strictly  construed  against  the 
grantee,  contrary  to  the  usual  policy  of  the  law  in  the  consideration  of 
grants;  and  upon  this  just  ground,  that  the  prerogatives,  rights,  and 
emoluments  of  the  sovereign  being  conferred  upon  him  for  great  pur- 
poses and  for  public  use,  it  shall  not  be  intended  that  such  preroga- 
tives, rights,  and  emoluments  are  diminished  by  any  grant  beyond  what 
such  grant  by  necessary  and  unavoidable  construction  shall  take  away." 
The  Rebekah,  1  C.  Rob.  230. 

The  case  which  bears  most  strongly  on  the  question  in  hand  is  the 

judgment  of  the  same  great  jurist  in  the  case  of  The  Elsebe,  5  Rob. 
■^y^      *     *     * 

If  these  principles  are  sound,  and  we  think  they  are  sustained  by 
the  strongest  reasons  and  the  highest  authorities,  it  must  follow  that 
this  suit  cannot  be  maintained  by  this  claimant,  for  want  of  title  to 
and  interest  in  the  subject-matter  in  respect  of  which  the  claim  is  made. 

By  the  seizure  of  the  ships  they  acquired  a  right  to  carry  them  into 
a  port  of  this  country  for  adjudication.  It  is  the  condemnation  under 
the  act  which  gives  the  interest,  and  not  the  seizure.  The  capture 
vests  it  in  the  United  States — the  condemnation  in  the  captors.  It 
follows,  as  a  necessary  consequence  from  this,  that  there  never  having 
been  a  condemnation  by  a  competent  tribunal,  there  never  has  been 
any  legal  right  vested  in  the  claimants.  Nor  could  there  be  any  such, 
for  it  required  the  judgment  of  a  competent  prize  tribunal  to  vest  that 
right  in  them  under  the  act  of  Congress.  No  other  court  is  competent 
to  supply  the  want  of  it,  because  that  is  an  essential  condition  of  the 
grant,  and  cannot  be  supplied  by  anything  else.  What  follows  then? 
Simply  this,  that  when  the  Levant  was  permitted  to  be  unlawfully 
recaptured  by  the  Portuguese  government,  in  violation  of  the  rights 
of  hospitality,  as  well  as  her  neutrality,  the  sole  right  to  and  interest 
in  the  captured  prize  was  in  the  United  States  alone.  The  injury  was 
committed  against  her  rights ;  and  whether  she  should  demand  repara- 
tion in  any  form,  or  to  any  extent,  was  a  matter  to  be  dictated  and 
controlled  by  considerations  of  public  interest  and  policy  alone,  and 


1044  RIGHTS  AND   DUTIES  OF   NATIONS  IN  TIME  OF  WAR         (Part  3 

not  by  any  considerations  of  private  interest  or  grievance,  for  none 
existed.     *     *     * 

We,  therefore,  are  compelled  to  sustain  the  demurrer  and  dismiss 
the  petition.* 


SECTION  2.— PRIZE  COURTS— AUTHORITY  AND 
JURISDICTION 


UNDO  V.  RODNEY. 

(King's  Bench,  1782.    2  Doug.  613,  note.) 

Lord  Mansfield.^  Many  persons,  in  the  same  case,  under  the  same 
circumstances,  upon  the  same  ground,  have  severally  applied  for  a 
prohibition,  to  stop  the  judge  of  the  Admiralty  from  proceeding  upon 
a  monition,  issued  in  the  usual  form,  in  order  to  the  condemnation  of 
goods,  wares,  merchandizes,  arms,  stores,  and  ammunition,  taken  and 
seized,  by  His  Majesty's  land  and  sea  forces,  under  the  command  of 
Admiral  Rodney  and  General  Vaughan,  at  the  island  of  St.  Eustatius, 
and  its  dependencies,  upon  the  surrender  of  the  said  island  of  St. 
Eustatius,  and  its  dependencies,  on  or  about  the  3d  of  February  last ; 
and  citing  all  persons  to  shew  cause,  why  they  should  not  be  pro- 
nounced to  have  belonged,  at  the  time  of  the  capture  and  seizure,  to 
our  enemies,  and  as  goods  of  enemies,  or  otherwise  liable  to  confisca- 
tion, be  adjudged,  and  condemned,  as  good  and  lawful  prize. 

Elias  Lindo  claims  part  of  these  goods,  as  belonging  to  him,  a  British 
subject,  and  as  to  them,  prays  a  prohibition ;  and,  by  his  suggestion, 
among  other  things,  he  avers ; 

That  Sir  George  Rodney  and  General  Vaughan,  upon  the  3d  of 

4  For  another  occasion  on  which  this  famous  frigate  appeared  in  court,  see 
The  Constitution,  L.  R.  1878-79,  4  Prob.  Div.  39  (1879),  ante,  p.  310,  note. 

For  a  description  of  the  naval  battle  out  of  which  Ck)mmodore  Stewart's 
claim  arose,  see  Ira  Nelson  HoUis,  The  Frigate  Constitution  196-215  (1900). 

It  may  be  of  interest  to  note  that  Stewart  remained  in  active  service 'until 
he  was  retired  as  senior  commodore  in  1856  and  flag  officer  in  1860;  that  on 
July  16,  1862,  he  was  commissioned  rear  admiral  in  his  eighty-fourth  year, 
and  that  he  remained  on  waiting  orders  until  his  death,  in  1869.  His  fighting 
qualities  as  well  as  his  name  appeared  in  his  grandson,  the  late  Charles 
Stewart  Parnell. 

In  The  Nuestra  Senora  de  Regla  108  U.  S.  92,  103,  2  Sup.  Ct.  287,  27  L.  Ed. 
662  (1882),  the  Supreme  Court,  per  Chief  Justice  Waite,  said: 

"The  duty  of  a  Captor  is  to  institute  .judicial  proceedings  for  the  condem- 
nation of  his  prize  without  unnecessary  delay,  and  if  he  fails  in  this  the  court 
may,  in  case  of  restitution,  decree  demurrage  against  him  as  damages.  This 
rule  is  well  settled.  Slocum  v.  Mayberry,  2  Wheat.  1,  4  L.  Ed.  169  (1817): 
The  Apollon,  9  Wheat.  362,  6  L.  Ed.  Ill  (1824) ;  The  Lively,  1  Gall.  315,  Fed. 
Cas.  No.  8,403  (1812);    The  Gorier  Maratimo,  1  C.  Rob.  287  (1799)," 

6  Parts  of  the  opinion  are  omitted. 


Ch.  18)  ADJUDICATION   OF   PRIZE  1045 

February,  in  a  hostile  manner,  seized  upon,  and  took  possession  of, 
the  island  of  St.  Eustatius,  with  everything  whatsoever  therein  being 
(open  hostilities  then  subsisting  between  the  King  and  the  States),  and 
that  the  goods  claimed  were  taken  upon  land,  in  the  said  island  of  St. 
Eustatius. 

The  ground  upon  which  the  prohibition  is  prayed,  is ;  that  the  goods 
were  taken  upon  land,  which  appears  upon  the  face  of  the  monition, 
and  is  averred  by  the  suggestion. 

The  only  question  then  is,  whether  the  goods  being  taken  on  land, 
though  in  consequence  of  a  surrender  to  ships  at  sea,  excludes  the  only  , 
prize  jurisdiction  known  in  this  kingdom? 

This  question  naturally  leads  to  an  enquiry  into  the  nature  of  this 
jurisdiction,  exercised  by  the  judge  of  the  Admiralty,  exclusively  of 
every  other  judicature  of  every  kind  except  upon  appeal. 

Upon  the  motion  being  made,  I  directed,  in  court,  a  search  to  be 
made  into  the  books  of  the  Admiralty,  especially  during  the  reign  of 
Queen  Elizabeth ;  I  also  got  a  search  made  myself.  And  one  of  the 
registers  informed  us,  in  court,  during  the  argument,  that  there  are 
no  Prize  Act  books  farther  back  than  1643 ;  no  sentences  farther  back 
than  1648. 

The  register  has  not  been  able  to  search  farther  back  than  1690. 
The  prior  records  are  in  confusion,  illegible,  and  no  index. 

It  appears  that  this  jurisdiction  in  matters  of  prize  (whether  it  be 
coeval  with  the  Court  of  Admiralty,  or,  which  is  much  more  probable, 
of  a  later  institution,  beyond  the  time  of  memory),  though  exercised 
by  the  same  person,  is  quite  distinct. 

He  is  appointed  Judge  of  the  Admiralty  by  a  commission  under  the 
Great  Seal,  which  enumerates  particularly,  as  well  as  generally,  every 
object  of  his  jurisdiction ;  but  not  a  word  of  prize. 

To  constitute  that  authority,  or  to  call  it  forth,  in  every  war,  a 
commission  under  the  Great  Seal  issues  to  the  Lord  High  Admiral,  to 
will  and  require  the  Court  of  Admiralty,  and  the  lieutenant  and  judge 
of  the  said  court,  his  surrogate  or  surrogates,  and  they  are  hereby 
authorized  and  required,  to  proceed  upon  all  and  all  manner  of  cap- 
tures, seizures,  prizes,  and  reprisals,  of  all  ships  and  goods,  that  are, 
or  shall  be,  taken;  and  to  hear  and  determine,  according  to  the  course 
of  the  Admiralty,  and  the  law  of  nations. 
A  warrant  issues  to  the  judge  accordingly. 

The  monition,  and  other  proceedings,  are  in  his  name,  with  all  his 
titles  of  office,  rank,  and  degree ;  adding,  emphatically,  as  the  authority 
under  which  he  acts,  the  following  words :  "And  also  to  hear  and  de- 
termine all  and  all  manner  of  causes,  and  complaints,  as  to  ships  and 
goods  seized  and  taken  as  prize,  specially  constituted  and  appointed." 

The  Court  of  Admiralty  is  called  the  Instance  Court;  the  other  the 
Prize  Court. 

The  manner  of  proceeding  is  totally  different. 


1046  RIGHTS  AND   DUTIES   OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

The  whole  system  of  litigation  and  jurisprudence  in  the  Prize  Court 
is  peculiar  to  itself ;  it  is  no  more  like  the  Court  of  Admiralty  than 
it  is  to  any  court  in  Westminster  Hall. 

From  8  Eliz.  c.  5,  it  appears  that,  in  civil  and  marine  causes,  there 
were  many  appeals,  which  the  statute  restrains  to  one  to  the  King  in 
Chancery,  to  be  finally  decided  by  delegates.  But  prize  is  not  a  civil 
and  marine  cause ;  and  the  appeal  lies  to  commissioners,  consisting  of 
the  Privy  Council. 

A  thing  being  done  upon  the  high  sea,  don't  exclude  the  jurisdic- 
tion of  the  courts  of  common  law.  For  seizing,  stopping,  or  taking, 
a  ship,  upon  the  high  sea,  not  as  prize,  an  action  will  lie ;  but  for  tak- 
ing, as  prize,  no  action  will  lie.  The  nature  of  the  question  excludes, 
not  the  locality.    This  was  explained  in  the  case  of  Le  Caux  v.  Eden. 

The  end  of  a  Prize  Court  is,  to  suspend  the  property  till  condemna- 
tion; to  punish  every  sort  of  misbehaviour  in  the  captors;  to  restore 
instantly,  velis  levatis  (as  the  books  express  it,  and  as  I  have  often 
heard  Dr.  Paul  quote),  if,  upon  the  most  summary  examination,  there 
don't  appear  a  sufficient  ground;  to  condemn  finally,  if  the  goods 
really  are  prize,  against  every  body,  giving  every  body  a  fair  oppor- 
tunity of  being  heard.  A  captor  may,  and  must,  force  every  person 
interested  to  defend,  and  every  person  interested  may  force  him  to 
proceed  to  condemn,  without  delay. 

These  views  cannot  be  answered  in  any  court  of  Westminster  Hall, 
and,  therefore,  the  courts  of  Westminster  Hall  never  have  attempted 
to  take  cognizance  of  the  question,  "prize  or  not  prize" ;  not  from  the 
locality  of  being  done  at  sea,  as  I  have  said,  but  from  their  incompe- 
tence to  embrace  the  whole  of  the  subject. 

As  to  plunder,  or  booty,  in  a  mere  continental  land  war,  without  the 
presence  or  intervention  of  any  ships,  or  their  crews,  it  never  has  been 
important '  enough  to  give  rise  to  any  question  about  it.  It  is  often 
given  to  the  soldiers  upon  the  spot ;  or  wrongfully  taken  by  them, 
contrary  to  military  discipline.  If  there  is  any  dispute,  it  is  regulated 
by  the  commander  in  chief.  There  is  no  instance,  in  history  or  law, 
ancient  or  modern,  of  any  question  before  any  legal  judicature,  ever 
having  existed  about  it,  in  this  kingdom.  To  contend  that  such  plunder 
was  within  the  rules  and  jurisdiction  of  the  Prize  Court,  might  be  op- 
posed by  the  subject  matter,  the  nature  of  the  jurisdiction,  the  person 
to  whom  it  is  given,  and  the  rules  by  which  he  is  judge.  Therefore, 
the  counsel  have  confined  their  argument  to  reprisals  ashore,  by  a  naval 
force ;  at  least,  I  shall  consider  it  as  so  confined,  without  entering  into 
any  question  about  booty,  in  a  mere  land  war ;  as  to  which  J  have  no 
light  to  go  by,  and  it  is  not  now  necessary  to  be  decided.  Neque  teneo, 
neque  dicta  refello. 

The  question  then  is,  whether  such  a  capture  ashore,  by  a  fleet  of 
ships,   and   the  land   and   sea   forces   aboard,   in   consequence   of   a 


Ch.  18)  ADJUDICATION   OF   PRIZE  1047 

previous  surrender  of  the  place,  is  within  the  jurisdiction  of  the  Court 
of  Prize. 

Two  general  objections  have  been  relied  upon. 

1.  That,  though  it  were  given  and  immemorially  exercised,  yet  it  can- 
not subsist,  because  contrary  to  the  Statutes  of  13  and  15  Ric.  II,  and 
2  Hen.  IV. 

2.  If  there  is  no  objection  from  these  statutes  to  the  existence  of  such 
a  jurisdiction,  that  it  is  not  given  by  immemorial  usage,  or  the  true 
construction  of  the  commission. 

As  to  the  first:  *  *  *  The  view,  purport,  and  tendency  of  the 
statutes,  is  to  prevent  the  Admiralty  from  trying  matters  triable  at  law. 
The  taking  a  ship  upon  the  high  sea  is  triable  at  law  to  repair  the 
plaintiff  in  damages :  but  a  taking  on  the  high  sea,  as  prize,  is  not  tria- 
ble at  law  to  repair  the  plaintiff  in  damages.  The  nature  of  the  ground 
of  the  action — prize  or  not  prize — not  only  authorizes  the  Prize  Court, 
but  excludes  the  common  law. 

These  statutes  don't  exclude  the  common  law  in  any  case,  and  they 
confine  the  Admiralty  by  the  locality  of  the  thing  done,  which  is  the 
cause  of  action;  it  must  be  done  upon  the  high  sea. 

If  done  in  ports,  havens,  or  rivers,  within  the  body  of  a  county  of 
the  realm,  the  Admiralty  is  excluded.  But  the  Prize  Court  has  uni- 
formly, without  objection,  tried  all  captures  in  ports,  havens,  etc.,  with- 
in the  realm.  It  happens  often.  We  all  remember  several  cases. 
Ships,  not  knowing  of  hostilities,  come  in  by  mistake.  Upon  the  dec- 
laration of  war,  or  hostilities,  all  the  ships  of  the  enemy  are  detained  in 
our  ports,  to  be  confiscated  as  the  property  of  the  enemy,  if  no  recip- 
rocal agreement  is  made.  They  can  only  be  condemned  in  the  Court 
of  Prize. 

What  is  still  more  extensive,  foreign  ports,  or  harbours,  are  not 
the  high  sea,  any  more  than  the  shore,  but  numberless  captures  made 
there,  have  been  condemned  as  prize. 

I  am  of  opinion,  that  these  statutes  have  no  view,  or  relation  to  the 
subject  of  prize:    consequently  there  arises  from  them  no  objection. 

2.  The  second  objection  is,  that  the  jurisdiction  is  not  given. 

I  will  consider  this  objection  in  three  points  of  view, 

(1)  Upon  the  words  of  the  commission. 

(2)  Upon  the  reason  of  the  thing. 

(3)  Upon  authorities  and  usage. 

1.  As  to  the  first;  the  commission  certainly  has  in  view  captures  by 
ships.  Hostilities  are  committed  by  ships  and  the  men  aboard,  at  sea, 
or  ashore;  a  fight  begins;  the  vanquished  runs  ashore;  gets  the  goods 
out;   is  pursued  ashore;   and  the  goods  are  taken. 

A  fort,  or  town,  is  taken  by  the  force  of  ships  at  sea,  and  is  ran- 
somed ;   or  plate,  money,  and  valuable  effects  taken. 

The  means  this  country  has  of  annoying,  and  making  reprisals  upon 
an  enemy,  is  by  naval  expeditions.    There  never  was,  there  never  will 


1048  RIGHTS   AND   DUTIES   OF  NATIONS   IN  TIME   OF  WAR         (Part  3 

be,  one,  no,  not  a  single  ship,  which  has  not  a  view  to  operations  upon 
land,  if  occasion  should  offer.  They  are  often  the  main  view ;  Sir 
George  Rooke,  at  Vigo ;  Admiral  Vernon,  at  Porto  Bello  and  Cartha- 
gena ;  Lord  Anson,  in  the  South  Seas ;  Sir  George  Pocock,  at  the 
Havannah ;  many  last  war  to  Martinico,  Guadaloupe,  and  other  places ; 
Commodore  Johnston  the  other  day. 

In  many  old  treaties,  some  of  which  I  shall  mention  by  and  by,  the 
usual  stipulation  is,  that  the  subjects  of  the  one  prince  shall  do  no  in- 
jury or  violence  to  the  subjects  of  the  other,  by  land  or  sea,  or  in 
fresh  waters,  or  in  port.  It  is  not  by  accident,  therefore,  that  the  words 
of  the  commission  are  general — all  manner  of  captures,  seizures,  prizes, 
and  reprisals  of  all  ships  and  goods.  It  don't  say — upon  the  sea. 
It  don't  say — Goods  in  the  ship.  "Reprisals"  is  the  most  general  word 
that  can  be  used. 

In  causes  civil  and  marine,  to  give  jurisdiction  to  the  Court  of  Ad- 
miralty, the  libel  must  allege  the  cause  of  suit  to  be  done  upon  the 
high  sea,  and,  therefore,  if  that  had  been  the  intention  of  the  commis- 
sion, or  the  rule  of  law,  it  would  certainly  have  been  so  expressed 
in  the  commission. 

2.  The  reason  of  the  thing  requires  the  words  should  be  general. 

It  is,  as  I  have  said,  in  the  view  of  every  ship,  much  more  of  every 
fleet,  which  sails  to  make  reprisals,  to  act  on  shore.  There  is  no 
place  of  note  which  can  be  attacked,  where  neutral  or  British  subjects 
do  not  reside,  or  have  property,  or  where  the  enemy  may  not  colourably 
borrow  their  names. 

If  it  is  not  within  the  jurisdiction  of  the  Prize  Court,  consider  the 
consequence  to  the  captors,  to  the  claimants,  and  to  the  state. 

The  captors  are  in  a  miserable  condition  indeed.  The  prize  cannot  be 
condemned.  If  granted,  it  cannot  be  shared.  Every  officer  and  sailor 
may  be  liable  to  actions  without  number.  The  taking  cannot  be  dis- 
puted. To  disprove  the  property,  they  can  only  have  witnesses  from 
abroad,  who  cannot  be  compelled  to  come.  The  grounds  upon  which 
the  Prize  Court  condemns  or  acquits,  cannot  be  read  at  law ;  and,  in 
every  action  where  the  plaintiff  recovers  to  the  value  of  a  farthing, 
the  captor  must  pay  the  costs. 

Colourable  claimants  might  easily  ruin  the  captors,  through  their 
want  of  the  means  of  defence. 

It  would  be  equally  mischievous  to  fair  claimants.  They  could  not 
have  their  property  restored  instantly,  upon  their  own  papers,  books, 
and  affidavits.  They  must  make  formal  proof.  And  the  owners  or 
crew  of  a  privateer  all  the  while  might  be  spending  the  effects. 

But  to  the  state  the  consequences  would  be  still  more  mischievous. 

No  distinction  can  be  made  between  British  and  neutrals.  If  the 
jurisdiction  is  null  by  the  statutes,  or  never  was  given,  it  can  no  more 
be  exercised  in  the  case  of  a  neutral,  than  in  the  case  of  a  subject. 

By  the  law  of  nations,  and  treaties,  every  nation  is  answerable  to 


Ch.  18)  ADJUDICATION   OF   PRIZE  1049 

the  other  for  all  injuries  done,  by  sea  or  land,  or  in  fresh  waters,  or  in 
port.  Mutual  convenience,  eternal  principles  of  justice,  the  wisest 
regulations  of  policy,  and  the  consent  of  nations,  have  established  a 
system  of  procedure,  a  code  of  law,  and  a  court  for  the  trial  of  prize. 
Every  country  sues  in  these  courts  of  the  others,  which  are  all  gov- 
erned by  one  and  the  same  law,  equally  known  to  each.  The  claim- 
ant is  not  obliged  to  sue  the  captors  for  damages,  and  undergo  all  the 
delay  and  vexation  to  which  he  may  think  himself  liable,  if  he  sues  by 
a  form  of  litigation,  of  which  he  is  totally  ignorant,  and  subjects  his 
property  to  the  rules  and  authority  of  a  municipal  law,  by  which  he 
is  not  bound. 

In  short,  every  reason  which  created  a  Prize  Court  as  to  things  taken 
upon  the  high  seas,  holds  equally  when  they  are  thus  taken  at  land. 
The  original  cause  of  taking  is  here  at  sea.  The  force  which  terrified 
the  place  into  a  surrender  was  at  sea.  If  they  had  resisted,  the  force  to 
subdue  would  have  been  from  the  sea. 

Mr.  Piggott  candidly  said,  it  would  be  spinning  very  nicely,  to  con- 
tend, if  the  enemy  left  their  ship,  and  got  ashore  with  money,  were 
followed  upon  land,  and  stripped  of  their  money,  that  this  would 
not  be  a  sea  capture.  I  agree  with  him,  but  I  cannot  distinguish  that 
case  from  this.  Both  takings  are  literally  upon  land.  In  both  the 
prey  is,  as  it  were,  killed  at  sea,  and  taken  upon  land.  Here  the  cap- 
ture of  the  goods  on  land  is  the  immediate  consequence  of  the  surren- 
der at  discretion  to  a  sea  force. 

Would  a  sum  paid  by  capitulation  upon  land  have  made  it  a  sea  or  a 
land  prize? 

Cui  bono  should  all  this  subtlety  be  spun,  when  the  reason  for  a 
jurisdiction  to  judge  a  capture  at  sea,  and  such  a  capture  at  land,  is 
exactly  the  same? 

3.  Authorities  and  immemorial  usage. 

In  1498,  a  treaty,  entitled  "Confirmatio  Tractatus  contra  spolia  mari- 
tima,  et  pro  deprsedatoribus  coercendis,"  between  Henry  VII  and 
Louis  XII,  confirming  one  before  made  with  Charles  VIII  (13  Hen. 
VII,  Rymer,  vol.  12,  p.  690);  ,and,  an  1526,  another  between  Henry 
VIII  and  Francis  I  (17  Hen.  VIII,  Rymer,  vol.  14,  p.  147).     *     *     * 

These  treaties  demonstrate  the  jurisdiction  of  prize  in  the  Admi- 
ralty and  Commissioners  of  Appeal  then,  to  have  been  pretty  much  as 
it  is  now.  Ships  of  war  are  to  give  security  to  do  no  injury  or  vio- 
lence by  land  or  sea,  or  in  fresh  waters,  or  in  any  port.  When  they 
return  with  prize,  they  are  to  disclose  it,  if  they  have  taken  any  thing 
by  sea  or  land  from  the  subjects  of  either  prince.  If  they  have  taken 
from  the  subjects,  lands,  kingdoms,  or  dominions,  of  either;  instant 
restitution  to  be  made,  with  costs  and  damages.  If  taken  from  the 
subject,  in  the  land  of  an  enemy,  to  be  restored.  If  taken  from  the 
land  of  either  prince,  though  the  goods  of  an  enemy,  to  be  restored: 
it  is  a  breach  and  violation  of  his  territory.     A  capture  of  Admiral 


1050  RIGHTS   AND  DUTIES   OF  NATIONS   IN  TIME  OP  WAR         (Part  3 

Boscawen  upon  the  land  and  shore  of  the  king  of  Portugal  occasioned 
much  discussion. 

It  manifestly  appears  from  these  treaties,  that  the  jurisdiction  equally 
extended  to  goods  taken  by  ships  or  their  crews  on  land  and  at  sea. 
They  shew  too,  that  no  property  vests  in  any  goods  taken  at  sea  or  on 
land,  by  a  ship  or  her  crew,  till  a  sentence  of  condemnation  as  good 
and  lawful  prize;   which  continues  law  to  this  day.     *     *     * 

In  the  reign  of  Queen  Elizabeth,  it  is  well  known  that  a  buccaneering 
war  was  carried  on  by  private  adventurers,  and  that,  in  the  Spanish 
West  Indies,  considerable  prize  was  taken  on  land. 

Dr.  Wynne  said,  the  commissions  to  fit  out  ships  against  the  enemy, 
expressly  authorize  the  persons  to  whom  they  are  granted  to  take  the 
enemy's  goods  by  land  as  well  as  by  sea. 

He  cited  one,  by  way  of  instance,  in  the  37th  of  EHzabeth,  1595 
(Rymer,  vol.  16,  p.  2751).  A  commission  to  Robert  Crosse,  giving  full 
power,  in  hostile  manner,  as  well  by  land  as  sea,  to  invade,  take,  stay, 
and  destroy,  any  ships  or  goods  of  the  king  of  Spain,  his  subjects,  or 
adherents. 

"And  such  ships,  goods,  jewels,  bullion,  or  any  other  riches  as  they 
shall  take  in  them,  we  do  strictly  charge  and  command  you  to  see  that 
they  be  safely  preserved  from  spoil,  and  to  be  brought  home  in  good 
order  into  our  realm  of  England." 

They  were  to  seize  goods  by  land  and  sea.  All  they  seized  they  were 
to  bring  to  England.  No  property  vested  till  condemnation.  They 
could  only  be  condemned  by  the  Prize  Court  of  Admiralty.  They, 
therefore,  most  certainly  were  so  condemned,  though  the  proceedings 
are  lost. 

In  the  reign  of  Queen  Elizabeth,  and  former  reigns,  many  special 
commissions  issued,  to  inquire  into  depredations  by  violators  of  treaties, 
and  the  law  of  nations,  which  are  to  be  seen  in  Rymer.  But  the  most 
ancient  instrument  shews  a  prize  jurisdiction,  either  inherent  or  by 
commission,  in  the  admiral.  It  is  a  letter  from  Edward  III  to  the 
king  of  Portugal  (Rymer,  vol.  6,  p.  15),  and  recites  a  complaint,  that 
the  admiral,  before  whom  the  goods  were  judicially  demanded,  de- 
termined, that  they  should  not  be  restored,  as  having  been  taken  in 
war. 

Since  the  reign  of  Queen  Elizabeth  no  special  commission  appears  to 
have  issued;  but  the  Judge  of  the  Admiralty,  either  by  virtue  of  an 
inherent  power,  or  the  king's  commission,  or  both,  has  solely  exercised 
the  jurisdiction  of  prize. 

I  will  conclude  with  three  propositions. 

1.  That,  so  far  back  as  particular  cases  can  be  traced,  which  is  for  a 
century,  the  Admiralty  has  judged  of,  and  condemned,  goods  taken  on 
land  as  prize,  as  well  as  goods  taken  on  sea. 

2.  That  every  common-law  authority  to  be  found  on  the  subject  al- 
lows and  supports  the  jurisdiction. 


Ch.  18)  ADJUDICATION   OF   PRIZE  1051 

3.  That  the  Legislature  has,  in  many  Acts  of  Parliament,  recognized 
and  referred  to  it,  as  clear,  certain,  and  undoubted.     *     *     * 

If  the  question  had  been  doubtful,  arguments  from  utility  and  public 
convenience  ought  to  have  turned  the  scale.  It  could  answer  no  good 
end,  and  must  produce  inextricable  mischief,  to  captors,  claimants, 
and  the  state,  if  goods  taken  upon  land  by  ships,  should  not  be  within 
the  prize  jurisdiction. 

The  merits  are  no  part  of  this  question.  If  the  captors  have  done 
wrong,  in  substance,  or  in  manner,  the  Judge  of  Admiralty,  and,  if  he 
err,  the  Lords  of  Appeal,  have  full  power  to  make  ample  reparation. 
They  give  satisfaction  even  to  an  enemy  prisoner,  who  is  illiberally 
plundered,  or  personally  ill  treated. 

As  we  are  all  clearly  of  the  opinion  I  deliver,  we  ought  not  to 
contribute  to  the  injustice  and  mischief  which  may  be  occasioned  to 
many  persons,  from  giving  liberty  to  declare  in  prohibition,  and  the 
parties  know,  they  are  not  finally  barred  by  our  judgment.  They  may 
apply  for  a  prohibition  to  every  court  in  Westminster  Hall. 

Therefore,  we  are  all  of  opinion,  that  the  rule  should  be  discharged. 

6  In  Novion  v.  Hallett,  16  John.  (N.  Y.)  327  (1819),  Chancellor  Kent  examin- 
ed with  great  thoroughness  the  jurisdiction  of  the  Court  of  Admiralty,  and, 
after  citing  Lindo  v.  Rodney,  2  Doug.  61.3.  note,  615  (17S2),  Le  Caux  v.  Eden, 
2  Doug.  594  (1781),  and  other  cases,  held  according  to  the  headnote,  that: 

"No  action  at  common  law  lies  for  an  illegal  capture  on  the  high  seas,  as 
prize  of  war ;  and  no  irregularity  or  misconduct  of  the  captor,  in  the  subse- 
quent disposition  of  the  prize,  can  confer  .iurisdiction  as  to  the  original  taking, 
or  is,  in  itself,  a  ground  of  action  at  common  law. 

"Jurisdiction,  in  cases  of  prize,  and  of  everything  incidental,  and  conse- 
quential thereto,  belongs  exclusively  to  the  admiralty. 

"And  piracy,  and  piratical  captures,  with  all  their  incidents,  are  exclusively 
of  admiralty  cognizance. 

"It  makes  no  difference  that  the  capturing  vessel  was  fitted  out  in  a  port 
of  the  United  States,  in  violation  of  our  neutrality,  or  an  act  of  Congress; 
and  in  such  case  the  District  Courts  of  the  United  States  have  a  clear  and 
indisputable  jurisdiction." 

This  opinion  is  especially  valuable  to  the  American,  because  in  its  course 
the  Chancellor  examines,  upon  principle  and  authority,  the  attempts  of  courts 
of  the  American  states  to  exercise  jurisdiction  in  the  matter  of  prize,  and 
holds  that  prize  jurisdiction  is  vested  exclusively  in  the  federal  courts  of  the 
United  States. 

In  the  Matter  of  Certain  Craft  Captured  on  the  Victoria  Nyanza,  L.  R. 
[1919]  Prob.  Div.  S3,  87,  88  (1918),  it  was  held,  following  the  cases  of  Lindo 
V.  Rodney,  2  Doug.  613,  note,  615,  (1782).  and  Le  Caux  v.  Eden,  2  Doug.  594 
(1781),  that  the  right  of  prize  is  not  limited  to  property  on  the  sea,  and  that 
enemy  craft  captured  on  an  inland  lake  (the  Victoria  Nyanza  in  Africa),  are 
subject  to  condemnation  as  prize.  In  the  course  of  his  opinion  Lord  Stern- 
dale  said : 

"It  appears  fairly  clear  that  there  is  no  settled  practice  hy  which  captures 
on  inland  waters  are  excluded  from  the  law  of  prize.  On  February  21,  1917, 
the  Italian  Prize  Court  sitting  at  Rome  condemned  as  lawful  prize  two  river 
steamers  employed  in  navigation  from  the  port  of  Cervignano  on  the  river 
Aussa,  some  miles  from  its  mouth,  to  Grade,  on  the  Gulf  of  Trieste,  and 
Trieste.  The  case  itself  is  perhaps  not  entirely  in  point,  as  it  proceeded  to  a 
certain  extent  upon  the  doctrine  of  reprisals,  and  it  does  not  seem  quite  clear 
whether  the  actual  seizure  was  at  Cervignano  or  at  Grade,  which  is  on  the 


1052  RIGHTS  AND  DUTIES  OF  NATIONS   IN  TIME  OF  WAR         (Part  3 

THE  ZAMORA. 
(Privy  Council,  1916.     [1916]  2  A.  C.  77.) 

Lord  Parker  of'  Waddington.'  On  April  8,  1915,  the  Zamora, 
a  Swedish  steamship  bound  from  New  York  to  Stockholm  with  a  cargo 
of  grain  and  copper,  was  stopped  by  one  of  His  Majesty's  cruisers  be- 
tween the  Faroe  and  Shetland  Islands  and  taken  for  purposes  of  search 
first  to  the  Orkney  Islands  and  then  to  Barrow-in-Furness.  She  was 
seized  as  prize  in  the  latter  port  on  April  19,  1915,  and  in  due  course 
placed  in  the  custody  of  the  marshal  of  the  Prize  Court.  It  is  admitted, 
on  the  one  hand,  that  the  copper  was  contraband  of  war,  and,  on  the 
other  hand,  that  the  steamship  was  ostensibly  bound  for  a  neutral  port. 
The  question  whether  either  steamship  or  cargo  was  lawful  prize  must 
therefore  depend  on  whether  the  steamship  had  a  concealed  or  ulterior 
destination  in  an  enemy  country,  or  whether  the  copper  was  by  means- 
of  transshipment  or  otherwise,  in  fact,  destined  for  the  enemy. 

On  May  14,  1915,  a  writ  was  issued  by  His  Majesty's  Procurator 
General  claiming  confiscation  of  both  vessel  and  cargo,  and  on  June 
14,  1915,  the  President,  at  the  instance  of  the  Procurator  General,  made 
an  order  under  Order  XXIX,  r.  1,  of  the  Prize  Court  Rules  giving 
leave  to  the  War  Department  to  requisition  the  copper,  but  subject  to 
an  undertaking  being  given  in  accordance  with  the  provisions  of  Order 
XXIX,  r.  5.  This  appeal  is  from  the  President's  order  of  June  14, 
1915. 

It  will  be  convenient  in  the  first  place  to  consider  the  precise  terms 
of  Order  XXIX  of  the  Prize  Court  Rules.  In  so  doing  it  must  be 
borne  in  mind  that  though  the  order  in  terms  applies  to  ships  only, 
it  is  by  virtue  of  Order  I,  r.  2,  of  the  Prize  Court  Rules  equally  ap- 
plicable to  goods.  The  first  rule  of  Order  XXIX  provides  that  where 
it  is  made  to  appear  to  the  judge  on  the  application  of  the  proper  offi- 
cer of  the  Crown  that  it  is  desired  to  requisition,  on  behalf  of  His 
Majesty,  a  ship  in  respect  of  which  no  final  decree  of  conddmnation 
has  been  made,  he  shall  order  that  the  ship  be  appraised,  and  upon 
an  undertaking  being  given  in  accordance  with  rule  5  of  the  order,  the 
ship  shall  be  released  and  delivered  to  the  Crown.  The  third  rule  of 
the  order  provides  that  where  in  any  case  of  requisition  under  the 
order  it  is  made  to  appear  to  the  judge  on  behalf  ,of  the  Crown  that 
the  ship  is  required  for  the  service  of  His  Majesty  forthwith,  the  judge 
may  order  the  same  to  be  forthwith  released  and  delivered  to  the 

Gulf  of  Trieste.  In  the  course  of  the  judgment,  however,  reference  is  made 
to  a  decision  of  the  German  Prize  Court,  in  which  some  Belgian  ships  moored 
in  the  port  of  Duisberg,  many  miles  up  the  Rhine,  were  condemned ;  and  also 
to  the  case  of  The  Primula  [Entscheidungen  des  Oberpriseugerichs  in  Berlin, 
1918,  p.  17  (1915)],  a  Russian  vessel  which  was  seized  on  the  river  Trave  be- 
tween Liibeck  and  Travemiinde.  I  do  not  know  the  particulars  of  the  case  as 
to  the  captures  at  Duisberg,  but  I  think  I  may  accept  the  statement  of  the 
Italian  court  that  the  German  court  recognized  the  legality  of  the  seizure," 
7  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


Ch.  18)  ADJUDICATION   OF   PRIZE  1053 

Crown  without  appraisement.  In  such  a  case  the  amount  payable  by 
the  Crown  is  to  be  fixed  by  the  judge  under  rule  4  of  this  order.  The 
fifth  rule  of  the  order  provides  that  in  every  case  of  requisition  under 
the  order  an  imdertaking  in  writing  shall  be  filed  by  the  proper  officer 
of  the  Crown  for  payment  into  court  on  behalf  of  the  Crown  of  the 
appraised  value  of  the  ship  or  of  the  amount  fixed  under  rule  4  of  the 
order,  as  the  case  may  be,  at  such  time  or  times  as  the  court  shall  de- 
clare that  the  same  or  any  part  thereof  is  required  for  the  purpose 
of  payment  out  of  court. 

The  first  observation  which  their  Lordships  desire  to  make  on  this 
order  is  that  the  provisions  of  rule  are  prima  facie  imperative.  The 
judge  is  to  act  in  a  certain  way  whenever  it  is  made  to  appear  to  him 
that  it  is  desired  to  requisition  the  vessel  or  goods  in  question  on  His 
Majesty's  behalf.  If  this  be  the  true  construction  of  the  rule  and  the 
judge  is,  as  a  matter  of  law,  bound  thereby,  there  is  nothing  more  to 
be  said  and  the  appeal  must  fail.  If,  however,  it  appear  that  the  rule 
so  construed  is  not,  as  a  matter  of  law,  binding  on  the  judge,  it  will 
have,  if  possible,  to  be  construed  in  some  other  way.  Their  Lordships 
propose,  therefore,  to  consider  in  the  first  place  whether  the  rule  con- 
strued as  an  imperative  direction  to  the  judge  is  to  any  and  what  ex- 
tent binding. 

The  Prize  Court  Rules  derive  their  force  from  Orders  of  His 
Majesty  in  Council.  These  orders  are  expressed  to  be  made  under  the 
powers  vested  in  His  Majesty  by  virtue  of  the  Prize  Court  Act,  1894, 
or  otherwise.  The  act  of  1894  confers  on  the  King  in  Council  power  to 
make  rules  as  to  the  procedure  and  practice  of  the  Prize  Courts.  So 
far,  therefore,  as  the  Prize  Court  Rules  relate  to  procedure  and  prac- 
tice they  have  statutory  force  and  are,  undoubtedly,  binding.  But 
Order  XXIX,  r.  1,  construed  as  an  imperative  direction  to  the  judge 
is  not  merely  a  rule  of  procedure  or  practice.  It  can  only  be  a  rule 
of  procedure  or  practice  if  it  be  construed  as  prescribing  the  course  to 
be  followed  if  the  judge  is  satisfied  that  according  to  the  law  adminis- 
tered in  the  Prize  Court  the  Crown  has,  independently  of  the  rule,  a 
right  to  requisition  the  vessel  or  goods  in  question,  or  if  the  judge  is 
minded  in  exercise  of  some  discretionary  power  inherent  in  the  Prize 
Court  to  sell  the  vessel  or  goods  in  question  to  the  Crown.  If  ^  there- 
fore, Order  XXIX,  r.  1,  construed  as  an  imperative  direction  be  bind- 
ing, it  must  be  by  virtue  of  some  power  vested  in  the  King  in  Council 
otherwise  than  by  virtue  of  the  act  of  1894.  It  was  contended  by  the 
Attorney  General  that  the  King  in  Council  has  such  a  power  by  virtue 
of  the  royal  prerogative,  and  their  Lordships  will  proceed  to  consider 
this  contention. 

The  idea  that  the  King  in  Council,  or  indeed  any  branch  of  the 
executive,  has  power  to  prescribe  or  alter  the  law  to  be  administered 
by  courts  of  law  in  this  country  is  out  of  harmony  with  the  principles 
of  our  Constitution.    It  is  true  that,  under  a  number  of  modern  stat- 


1054  RIGHTS   AND   DUTIES   OF  NATIONS   IN   TIME   OF   WAR         (Part  3 

utes,  various  branches  of  the  executive  have  power  to  make  rules  hav- 
ing the  force  of  statutes,  but  all  such  rules  derive  their  validity  from 
the  statute  which  creates  the  power,  and  not  from  the  executive  body 
by  which  they  are  made.  No  one  would  contend  that  the  prerogative 
involves  any  power  to  prescribe  or  alter  the  law  administered  in  courts 
of  common  law  or  equity.  It  is,  however,  suggested  that  the  manner  in 
which  Prize  Courts  in  this  country  are  appointed  and  the  nature  of 
their  jurisdiction  differentiate  them  in  this  respect  from  other  courts. 

Prior  to  the  Naval  Prize  Act,  1864,  jurisdiction  in  matters  of  prize 
was  exercised  by  the  High  Court  of  Admiralty,  by  virtue  of  a  com- 
mission issued  by  the  Crown  under  the  Great  Seal  at  the  commence- 
ment of  each  war.  The  commission  no  doubt  owed  its  validity  to  the 
prerogative,  but  it  cannot  on  that  account  be  properly  inferred  that 
the  prerogative  extended  to  prescribing  or  altering  the  law  to  be  ad- 
ministered from  time  to  time  under  the  jurisdiction  thereby  conferred. 
The  courts  of  common  law  and  equity  in  like  manner  originated  in  an 
exercise  of  the  prerogative.  The  form  of  commission  conferring  ju- 
risdiction in  prize  on  the  Court  of  Admiralty  was  always  substantially 
the  same.  Their  Lordships  will  take  that  quoted  by  Lord  Mansfield  in 
Lindo  V.  Rodney  (1782)  2  Doug.  612,  note,  614,  note,  as  an  example. 
It  required  and  authorized  the  Court  of  Admiralty  "to  proceed  upon 
all  and  all  manner  of  captures,  seizures,  prizes,  and  reprisals,  of  all 
ships  and  goods,  that  are,  or  shall  be,  taken;  and  to  hear  and  de- 
termine, according  to  the  course  of  the  Admiralty,  and  the  law  of  na- 
tions." If  these  words  be  considered,  there  appear  to  be  two  points 
requiring  notice,  and  each  of  them,  so  far  from  suggesting  any  reason 
why  the  prerogative  should  extend  to  prescribing  or  altering  the  law  to 
be  administered  by  a  Court  of  Prize,  suggests  strong  grounds  why  it 
should  not. 

In  the  first  place,  all  those  matters  upon  which  the  court  is  au- 
thorized to  proceed  are,  or  arise  out  of,  acts  done  by  the  sovereign 
power  in  right  of  war.  It  follows  that  the  King  must,  directly  or  in- 
directly, be  a  party  to  all  proceedings  in  a  Court  of  Prize.  In  such 
a  court  his  position  is  in  fact  the  same  as  in  the  ordinary  courts  of  the 
realm  upon  a  petition  of  right  which  has  been  duly  fiated.  Rights 
based  pn  sovereignty  are  waived  and  the  Crown  for  most  purposes  ac- 
cepts the  position  of  an  ordinary  litigant.  A  Prize  Court  must  of 
course  deal  judicially  with  all  questions  which  come  before  it  for  de- 
termination, and  it  would  be  impossible  for  it  to  act  judicially  if  it 
were  bound  to  take  its  orders  from  one  of  the  parties  to  the  proceed- 
ings. 

In  the  second  place,  the  law  which  the  Prize  Court  is  to  administer 
is  not  the  national  or,  as  it  is  sometimes  called,  the  municipal  law, 
but  the  law  of  nations — in  other  words,  international  law.  It  is  worth 
while  dwelling  for  a  moment  on  this  distinction.  Of  course,  the  Prize 
Court  is  a  municipal  court,  and  its  decrees  and  orders  owe  their  validity 


Ch.  18)  ADJUDICATION   OF   PRIZE  1055 

to  municipal  law.  The  law  it  enforces  may  therefore,  in  one  sense,  be 
considered  a  branch  of  municipal  law.  Nevertheless,  the  distinction 
between  municipal  and  international  law  is  well  defined.  A  court 
which  administers  municipal  law  is  bound  by  and  gives  effect  to  the 
law  as  laid  down  by  the  sovereign  state  which  calls  it  into  being.  It 
need  inquire  only  what  that  law  is,  but  a  court  which  administers  in- 
ternational law  must  ascertain  and  give  effect  to  a  law  which  is  not 
laid  down  by  any  particular  state,  but  originates  in  the  practice  and 
usage  long  observed  by  civilized  nations  in  their  relations  towards  each  , 
other  or  in  express  international  agreement.  It  is  obvious  that,  if  and 
so  far  as  a  Court  of  Prize  in  this  country  is  bound  by  and  gives  effect 
to  Orders  of  the  King  in  Council  purporting  to  prescribe  or  alter  the 
international  law,  it  is  administering  not  international  but  municipal 
law ;  for  an  exercise  of  the  prerogative  cannot  impose  legal  obligation 
on  any  one  outside  the  King's  dominions  who  is  not  the  King's  sub- 
ject. If  an  Order  in  Council  were  binding  on  the  Prize  Court,  such 
court  might  be  compelled  to  act- contrary  to  the  express  terms  of  the 
commission  from  which  it  derived  its  jurisdiction. 

There  is  yet  another  consideration  which  points  to  the  same  conclu- 
sion. The  acts  of  a  belligerent  power  in  right  of  war  are  not  justicia- 
ble in  its  own  courts  unless  such  power,  as  a  matter  of  grace,  submit 
to  their  jurisdiction.  Still  less  are  such  acts  justiciable  in  the  courts 
of  any  other  power.  As  is  said  hy  Story,  J.,  in  the  case  of  The  Invinci- 
ble, 2  Gall.  28,  44,  Fed.  Cas.  No.  7,054,  "the  acts  done  under  the  au- 
thority of  one  sovereign  can  never  be  subject  to  the  revision  of  the 
tribunals  of  another  sovereign;  and  the  parties  to  such  acts  are  not 
responsible  therefor  in  their  private  capacities."  It  follows  that  but 
for  the  existence  of  Courts  of  Prize  no  one  aggrieved  by  the  acts  of  a 
belligerent  power  in  times  of  war  could  obtain  redress  otherwise  than 
through  diplomatic  channels  and  at  the  risk  of  disturbing  international 
amity.  An  appropriate  remedy  is,  however,  provided  by  the  fact  that, 
according  to  international  law,  every  belligerent  power  must  appoint 
and  submit  to  the  jurisdiction  of  a  Prize  Court  to  which  any  person 
aggrieved  by  its  acts  has  access,  and  which  administers  international 
as  opposed  to  municipal  law — a  law  which  is  theoretically  the  same, 
whether  the  court  which  administers  it  is  constituted  under  the  mu- 
nicipal law  of  the  belligerent  power  or  of  the  sovereign  of  the  person 
aggrieved,  and  is  equally  binding  on  both  parties  to  the  litigation.  It 
has  long  been  well  settled  by  diplomatic  usage  that,  in  view  of  the 
remedy  thus  afforded,  a  neutral  aggrieved  by  any  act  of  a  belligerent 
power  cognizable  in  a  Court  of  Prize  ought,  before  resorting  to  diplo- 
matic intervention,  to  exhaust  his  remedies  in  the  Prize  Courts  of  the 
belligerent  power.  A  case  for  such  intei-vention  arises  only  if  the  de- 
cisions of  those  courts  are  such  as  to  amount  to  a  gross  miscarriage  of 
justice.  It  is  obvious,  however,  that  the  reason  for  this  rule  of  diplo- 
macy would  entirely  vanish  if  a  Court  of  Prize,  while  nominally  ad- 


1056  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

ministering  a  law  of  international  obligation,  were  in  reality  acting  un- 
der the  direction  of  the  executive  of  the  belligerent  power. 

It  cannot,  of  course,  be  disputed  that  a  Prize  Court,  like  any  other 
court,  is  bound  by  the  legislative  enactments  of  its  own  sovereign  state. 
A  British  Prize  Court  would  certainly  be  bound  by  acts  of  the  im- 
perial legislature.  But  it  is  none  the  less  true  that  if  the  imperial  leg- 
islature passed  an  act  the  provisions  of  which  were  inconsistent  with 
the  law  of  nations,  the  Prize  Court  in  giving  effect  to  such  provisions 
would  no  longer  be  administering  international  law.  It  would  in  the 
field  covered  by  such  provisions  be  deprived  of  its  proper  function 
as  a  Prize  Court.  Even  if  the  provisions  of  the  act  were  merely  de- 
claratory of  the  international  law,  the  authority  of  the  court  as  an  in- 
terpreter' of  the  law  of  nations  would  be  thereby  materially  weakened, 
for  no  one  could  say  whether  its  decisions  were  based  on  a  due  consid- 
eration of  international  obligations,  or  on  the  binding  nature  of  the 
act  itself.  The  fact,  however,  that  the  Prize  Courts  in  this  country 
would  be  bound  by  acts  of  the  imperial  legislature  affords  no  ground 
for  arguing  that  they  are  bound  by  the  executive  orders  of  the  King  in 
Council. 

In  connection  with  the  foregoing  considerations,  their  Lordships  at- 
tach considerable  importance  to  the  report  dated  January  18,  1753,  of 
the  committee  appointed  by  His  Britannic  Majesty  to  reply  to  the  com- 
plaints of  Frederick  II  of  Prussia  as  to  certain  captures  of  Prussian 
vessels  made  by  British  ships  during  the  war  with  France  and  Spain, 
which  broke  out  in  1744.  By  way  of  reprisals  for  these  captures  the 
Prussian  King  had  suspended  the  payment  of  interest  on  the  Silesian 
loan.  The  report,  which  derives  additional  authority  from  the  fact  that 
it  was  signed  by  Mr.  William  Murray,  then  Solicitor  General,  after- 
wards Lord  Mansfield,  contains  a  valuable  statement  as  to  the  law  ad- 
ministered by  Courts  of  Prize.  This  is  stated  to  be  the  law  of  nations, 
modified  in  some  cases  by  particular  treaties.  "If,"  says  the  report, 
"a  subject  of  the  King  of  Prussia  is  injured  by,  or  has  a  demand  upon 
any  person  here,  he  ought  to  apply  to  your  majesty's  courts  of  justice, 
which  are  equally  open  and  indifferent  to  foreigner  or  native ;  so,  vice 
versa,  if  a  subject  here  is  wronged  by  a  person  living  in  the  dominions 
of  His  Prussian  Majesty,  he  ought  to  apply  for  redress  in  the  kmg  of 
Prussia's  courts  of  justice.  If  the  matter  of  complaint  be  a  capture 
at  sea  during  war,  and  the  question  relative  to  prize,  he  ought  to  apply 
to  the  judicatures  established  to  try  these  questions.  The  law  of  na- 
tions, founded  upon  justice,  equity,  convenience,  and  the  reason  of 
the  thing,  and  confirmed  by  long  usage,  does  not  allow  of  reprisals,  ex- 
cept in  case  of  violent  injuries  directed  or  supported  by  the  state,  and 
justice  absolutely  denied  in  re  minime  dubia  by  all  the  tribunals  and 
afterwards  by  the  prince.  Where  the  judges  are  left  free,  and  give 
sentence  according  to  their  conscience,  though  it  should  be  erroneous, 


Ch.  18)  ADJUDICATION  OF  PRIZE  1057 

that  would  be  no  ground  for  reprisals.  Upon  doubtful  questions ,  dif- 
ferent men  think  and  judge  differently ;  and  all  a  friend  can  desire  is, 
that  justice  should  be  impartially  administered  to  him,  as  it  is  to  the 
subjects  of  that  prince  in  whose  courts  the  matter  is  tried."  The  re- 
port further  points  out  that  in  England  "the  Crown  never  interferes 
with  the  course  of  justice.  No  order  or  intimation  is  ever  given  to 
any  judge."  It  also  contains  the  following  statement:  "All  captures 
at  sea,  as  prize,  in  time  of  war,  must  be  judged  of  in  a  Court  of  Ad- 
miralty, according  to  the  law  of  nations  and  particular  treaties,  where 
there  are  any.  There  never  existed  a  case  where  a  court,  judging  ac- 
cording to  the  laws  of  England  only,  took  cognizance  of  prize,  *  *  * 
it  never  was  imagined  that  the  property  of  a  foreign  subject,  taken  as 
prize  on  the  high  seas,  could  be  affected  by  laws  peculiar  to  England."  * 
This  report  is,  in  their  Lordships'  opinion,  conclusive  that"  in  1753  any 
notion  of  a  Prize  Court  being  bound  by  the  executive  orders  of  the 
Crown,  or  having  to  administer  municipal  as  opposed  to  international 
law,  was  contrary  to  the  best  legal  opinion  of  the  day. 

The  Attorney  General  was  unable  to  cite  any  case  in  which  an  Or- 
der of  the  King  in  Council  had  as  to  matters  of  law  been  held  to  be 
binding  on  a  Court  of  Prize.  He  relied  chiefly  on  the  judgment  of 
Lord  Stowell  in  the  case  of  The  Fox,  Edw.  311,  2  Eng.  P.  C.  61. 
The  actual  decision  in  that  case  was  to  the  effect  that  there  was  noth- 
ing inconsistent  with  the  law  of  nations  in  certain  Orders  in  Council 
made  by  way  of  reprisals  for  the  Berlin  and  Milan  Decrees,  though  if 
there  had  been  no  case  for  reprisals  the  orders  would  not  have  been 
justified  by  international  law.  The  decision  proceeded  upon  the  prin- 
ciple that,  where  there  is  just  cause  for  retaliation,  neutrals  may  by 
the  law  of  nations  be  required  to  submit  to  inconvenience  from  the 
acts  of  a  belligerent  power  greater  in  degree  than  would  be  justified 
had  no  just  cause  for  retaliation  arisen,  a  principle  which  had  been  al- 
ready laid  down  in  The  Lucy.     Edw.  122. 

The  judgment  of  Lord  Stowell  contains,  however,  a  remarkable  pas- 
sage quoted  in  full  in  the  court  below,  which  refers  to  the  King  in 
Council  possessing  "legislative  rights"  over  a  Court  of  Prize  analogous 
to  those  possessed  by  Parliament  over  the  .courts  of  common  law.  At 
most  this  amounts  to  a  dictum,  and  in  their  Lordships'  opinion,  with 
all  due  respect  to  so  great  an  authority,  the  dictum  is  erroneous.  It 
is,  in  fact,  quite  irreconcilable  with  the  principles  enunciated  by  Lord 
Stowell  himself.  For  example,  in  The  Maria,  1  C.  Rob.  340,  350.  1 
Eng.  P.  C.  152,  153,  a  Swedish  ship,  his  judgment  contains  the  fol- 
lowing passage:  "The  seat  of  judicial  authority  is,  indeed,  locally 
here,  in  the  belligerent  country,  according  to  the  known  law  and  prac- 
tice of  nations :  but  the  law  itself  has  no  locality.  It  is  the  duty  of 
the  person  who  sits  here  to  determine  this  question  exactly  as  he  would 

8  See  Collectanea  Juridica,  vol.  1,  pp.  138,  147,  152. 
Scott  Int.Law— 67 


1058  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   WAR         (Part  3 

determine  the  same  question  if  sitting  at  Stockholm :  to  assert  no  pre- 
tensions on  the  part  of  Great  Britain  which  he  would  not  allow  to 
Sweden  in  the  same  circumstances,  and  to  impose  no  duties  on  Swe- 
den, as  a  neutral  country,  which  he  would  not  admit  to  belong  to  Great 
Britain  in  the  same  character."  It  is  impossible  to  reconcile  this  pas- 
sage with  the  proposition  that  the  Prize  Court  is  to  take  its  law  from 
Orders  in  Council.  Moreover,  if  such  a  proposition  were  correct  the 
court  might  at  any  time  be  deprived  of  the  right  which  is  well  recog- 
nized of  determining  according  to  law  whether  a  blockade  is  rendered 
invalid  either  because  it  is  ineffective,  or  because  it  is  partial  in  its  op- 
eration: see  The  Franciska,  10  Moo.  P.  C.  37,  2  Eng.  P.  C.  346. 
Moreover,  in  The  Lucy,  Edw.  122,  above  referred  to.  Lord  Stowell 
had,  in  effect,  refused  to  give  effect  to  the  Order  in  Council  on  which 
the  captors  relied. 

Lord  Stowell's  dictum  gave  rise  to  considerable  contempor-aneous 
criticism,  and  is  definitely  rejected  by  Sir  R.  Phillimore  (International 
Law  [3d  Ed.]  vol.  3,  §  436).  It  is  said  to  have  been  approved  by 
Story,  J.,  in  the  case  of  Maisonnaire  v.  Keating,  2  Gall.  324,  Fed.  Cas. 
No.  8978,  but  it  will  be  found  that  Story,  J.'s  remarks,  on  which' some 
reliance  seems  to  have  been  placed  by  the  President  in  this  case,  are 
directed  not  to  the  liability  of  captors  in  their  own  Courts  of  Prize, 
but  to  their  liability  in  the  Courts  of  other  nations.  He  is  in  effect 
repeating  the  opinion  he  expressed  in  the  case  of  The  Invincible,  2 
Gall.  28,  Fed.  Cas.  No.  7054,  to  which  their  Lordships  have  already 
referred.  An  act,  though  illegal  by  international  law,  will  not  on  that 
account  be  justiciable  in  the  tribunals  of  another  power — at  any  rate, 
if  expressly  authorized  by  order  of  the  sovereign  on  whose  behalf  it 
is  done. 

Their  Lordships  have  come  to  the  conclusion,  therefore,  that,  at 
any  rate  prior  to  the  Naval  Prize  Act,  1864,  there  was  no  power  in 
the  Crown,  by  Order  in  Council,  to  prescribe  or  alter  the  law  which 
Prize  Courts  have  to  administer.  It  was  suggested  that  the  Naval  Prize 
Act,  1864,  confers  such  a  power.  Under  that  act  the  Court  of  Admi- 
ralty became  a  permanent  Court  of  Prize,  independent  of  any  commis- 
sion issued  under  the  Great  Seal.  The  act,  however,  by  section  55, 
while  saving  the  King's  prerogative  on  the  one  hand,  saves,  on  the 
other  hand,  the  jurisdiction  of  the  court  to  decide  judicially  and  in 
accordance  with  international  law.  Subject,  therefore,  to  any  express 
provisions  contained  in  other  sections,  it  leaves  matters  exactly  as  they 
stood  before  it  was  passed.  The  only  express  provisions  which  confer 
powers  on  the  King  in  Council  are  (1)  those  contained  in  section  13 
(now  repealed  and  superseded  by  section  3  of  the  Prize  Court  Act, 
1894),  conferring  a  power  of  making  rules  as  to  the  practice  or  pro- 
cedure of  Prize  Courts,  and  (2)  those  contained  in  section  53,  confer- 
ring power  to  make  such  orders  as  may  be  necessary  for  the  better 
execution  of  the  act. 

Scott  Int.Law 


Ch.  18)  ADJUDICATION   OF   PRIZE  1059 

Their  Lordships  are  of  opinion  that  the  latter  power  does  not  ex- 
tend to  prescribing  or  altering  the  law  to  be  administered  by  the  court, 
but  merely  to  giving  such  executive  directions  as  may  from  time  to 
time  be  necessary.  In  all  respects  material  to  the  present  question  the 
law  therefore  remains  the  same  as  it  was  before  the  act,  nor  has  it 
been  affected  by  the  substitution  under  the  Supreme  Court  of  Judi- 
cature Acts,  1873  and  1891,  of  the  High  Court  of  Justice  for  the  Court 
of  Admiralty  as  the  permanent  Court  of  Prize  in  this  country. 

There  are  two  further  points  requiring  notice  in  this  part  of  the 
case.  The  first  arises  on  the  argument  addressed  to  the  board  by  the 
Solicitor  General.  It  may  be,  he  said,  that  the  court  would  not  be 
bound  by  an  Order  in  Council  which  is  manifestly  contrary  to  the 
established  rules  of  international  law,  but  there  are  regions  in  which 
such  law  is  imperfectly  ascertained  and  defined;  and,  when  this 
is  so,  it  would  not  be  unreasonable  to  hold  that  the  court  should  sub- 
ordinate its  own  opinion  to  the  directions  of  the  executive.  This  ar- 
gument is  open  to  the  same  objection  as  the  argument  of  the  Attor- 
ney General.  If  the  court  is  to  decide  judicially  in  accordance  with 
what  it  conceives  to  be  the  law  of  nations,  it  cannot,  even  in  doubtful 
cases,  take  its  directions  from  the  Crown,  which  is  a  party  to  the 
proceedings.  It  must  itself  determine  what  the  law  is  according  to 
the  best  of  its  ability,  and  its  view,  with  whatever  hesitation  it  be  ar- 
rived at,  must  prevail  over  any  executive  order.  Only  in  this  way  can 
it  fulfill  its  function  as  a  Prize  Court  and  justify  the  confidence  which 
other  nations  have  hitherto  placed  in  its  decisions. 

The  second  point  requiring  notice  is  this :  It  does  not  follow  that, 
because  Orders  in  Council  cannot  prescribe  or  alter  the  law  to  be 
administered  by  the  Prize  Court,  such  court  will  ignore  them  entirely. 
On  the  contrary,  it  will  act  on  them  in  every  case  in  which  they  amount 
to  a  mitigation  of  the  Crown  rights  in  favour  of  the  enemy  or  neu- 
tral, as  the  case  may  be.  As  explained  in  the  case  of  The  Odessa, 
[1916]  A.  C.  145,  the  Crown's  prerogative  of  bounty  is  unaffected  by 
the  fact  that  'the  proceeds  of  the  Crown  rights  or  Admiralty  droits  are 
now  made  part  of  the  Consolidated  Fund,  and  do  not  replenish  the  Privy 
Purse.  Further,  the  Prize  Court  will  take  judicial  notice  of  every 
Order  in  Council  material  to  the  consideration  of  matters  with  which 
it  has  to  deal,  and  will  give  the  utmost  weight  and  importance  to  ev- 
ery such  order  short  of  treating  it  as  an  authoritative  and  binding 
declaration  of  law.  Thus,  an  order  declaring  a  blockade  will  prima 
facie  justify  the  capture  and  condemnation  of  vessels  attempting  to 
enter  the  blockaded  ports,  but  will  not  preclude  evidence  to  show 
that  the  blockade  is  ineffective  and  therefore  unlawful.  An  order 
authorizing  reprisals  will  be  conclusive  as  to  the  facts  which  are  re- 
cited as  showing  that  a  case  for  reprisals  exists,  and  will  have  due 
weight  as  showing  what,  in  the  opinion  of  His  Majesty's  advisers,  are 
the  best  or  only  means  of  meeting  the  emergency;  but  this  will  not 
preclude  the  right  of  any  party  aggrieved  to  contend,  or  the  right  of 
the  court  to  hold,  that  these  means  are  unlawful,  as  entailing  on  neu- 


1060  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAE         (Part  3 

trals  a  degree  of  inconvenience  unreasonable,  considering  all  the  cir- 
cumstances of  the  case.  Further,  it  cannot  be  assumed,  until  there  be 
a  decision  of  the  Prize  Court  to  that  effect,  that  any  executive  order 
is  contrary  to  law,  and  all  such  orders,  if  acquiesced  in  and  not  declared 
to  be  illegal,  will,  in  the  course  of  time,  be  themselves  evidence  by 
which  international  law  and  usage  may  be  established.  See  Wheaton's 
International  Law  (4th  English  Ed.)  pp.  25  and  26. 

On  this  part  of  the  case,  therefore,  their  Lordships  hold  that  Order 
XXIX,  r,  1,  of  the  Prize  Court  Rules,  construed  as  an  imperative  di- 
rection to  the  court,  is  not  binding.  Under  these  circumstances  the 
rule  must,  if  possible,  be  construed  merely  as  a  direction  to  the  court 
in  cases  in  which  it  may  be  determined  that,  according  to  international 
law,  the  Crown  has  a  right  to  requisition  the  vessel  or  goods  of  en- 
emies or  neutrals.  There  is  much  to  warrant  this  construction,  for  the 
Order  in  Council,  by  which  the  Prize  Court  Rules  were  made,  con- 
forms to  the  provisions  of  the  Rules  Publication  Act,  1893,  and  on 
reference  to  that  act  it  will  be  found  inapplicable  to  Orders  in  Coun- 
cil, the,  validity  of  which  depends  on  an  exercise  of  the  prerogative. 
It  is  reasonable,  therefore,  to  assume  that  the  words  "Or  otherwise," 
contained  in  the  Order  in  Council,  refer  to  such  other  powers,  if 
any,  as  the  Crown  possesses  of  making  rules,  and  not  to  powers  vested 
in  the  Crown  by  virtue  of  the  prerogative. 

The  next  question  which  arises  for  decision  is  whether  the  order 
appealed  from  can  be  justified  under  any  power  inherent  in  the  court 
as  to  the  sale  or  realization  of  property  in  its  custody  pending  deci- 
sion of  the  question  to  whom  such  property  belongs.  It  cannot,  in 
their  Lordships'  opinion,  be  held  that  the  court  has  any  such  inherent 
power  as  laid  down  by  the  President  in  this  case.  The  primary  duty 
of  the  Prize  Court  (as  indeed  of  all  courts  having  the  custody  of  prop- 
erty the  subject  of  litigation)  is  to  preserve  the  res  for  delivery  to 
the  persons  who  ultimately  establish  their  title.  The  inherent  power 
of  the  court  as  to  sale  or  realization  is  confined  to  cases  where  this 
cannot  be  done,  either  because  the  res  is  perishable  in  its  nature,  or 
because  there  is  some  other  circumstance  which  renders  its  preserva- 
tion impossible  or  difficult.  In  such  cases  it  is  in  the  interest  of  all 
parties  to  the  Htigation  that  it  should  be  sold  or  realized,  and  the  court 
will  not  allow  the  interests  of  the  real  owner  to  be  prejudiced  by  any 
perverse  opposition  on  the  part  of  a  rival  claimant.  Such  a  limited 
power  would  not  justify  the  court  in  directing  a  sale  of  the  res  merely 
because  it  thought  fit  so  to  do,  or  merely  because  one  of  the  parties 
desired  the  sale  or  claimed  to  become  the  purchaser. 

It  remains  to  consider  the  third,  and  perhaps  the  most  difficult,  ques- 
tion which  arises  on  this  appeal — the  question  whether  the  Crown 
has,  independently  of  Order  XXIX,  r.  1,  any  and  what  right  to  requisi^ 
tion  vessels  or  goods  in  the  custody  of  the  Prize  Court  pending  the 
decision  of  the  court  as  to  their  condemnation  or  release.     *     *     *  « 

»  For  the  part  of  the  opinion  here  omitted,  see  ante,  p.  733. 


Ch.  18)  ADJUDICATION   OF  PRIZE  1061 

On  the  whole  question  their  Lordships  have  come  to  the  following 
conclusion:  A  belligerent  power  has  by  international  law  the  right  to 
requisition  vessels  or  goods  in  the  custody  of  its  Prize  Court  pending 
a  decision  of  the  question  whether  they  should  be  condemned  or  re- 
leased, but  such  right  is  subject  to  certain  limitations.  First,  the  ves- 
sel or  goods  in  question  must  be  urgently  required  for  use  in  connec- 
tion with  the  defence  of  the  realm,  the  prosecution  of  the  war,  or 
other  matters  involving  national  security.  Secondly,  there  must  be  a 
real  question  to  be  tried,  so  that  it  would  be  improper  to  order  an 
immediate  release.  And,  thirdly,  the  right  must  be  enforced  by  ap- 
plication to  the  Prize  Court,  which  must  determine  judicially  wheth- 
er, under  the  particular  circumstances  of  the  case,  the  right  is  exercisa- 
ble.    *     *     * 

It  remains  to  apply  what  has  been  said  to  the  present  case.  In 
their  Lordships'  opinion  the  order  appealed  from  was  wrong,  not 
because,  as  contended  by  the  appellants,  there  is  by  international  law 
no  right  at  all  to  requisition  ships  or  goods  in  the  custody  of  the 
court,  but  because  the  judge  had  before  him  no  satisfactory  evidence 
that  such  a  right  was  exercisable.     *     *     * 

The  proper  course,  therefore,  in  the  present  case,  is  to  declare  that 
upon  the  evidence  before  the  President  he  was  not  justified  in  making 
the  order  the  subject  of  this  appeal,  and  to  give  the  appellants  leave, 
in  the  event  of  their  ultimately  succeeding  in  the  proceedings  for  con- 
demnation, to  apply  to  the  court  below  for  such  damages,  if  any,  as 
they  may  have  sustained  by  reason  of  the  order  and  what  has  been 
done  under  it.  Their  Lordships  will  humbly  advise  His  Majesty  ac- 
cordingly; but  inasmuch  as  the  case  put  forward  by  the  appellants 
has  succeeded  in  part  only,  they  do  not  think  that  any  order  should 
be  made  as  to  the  costs  of  the  appeal.* 


*  The  English  Prize  Court  is  not  only  one  of  large  jurisdiction,  bnt  It  has 
the  power  to  open  its  decisions  where  substantial  injustice  w6uld  otherwise 
result.  Thus,  in  the  case  of  The  Bolivar,  L.  R.  [1916]  2  A.  C.  203,  205  (1916), 
the  Privy  Council,  per  Lord  Parker  of  Waddington,  held  that  the  court  was 
justified  In  setting  aside  "its  own  judgments  of  condemnation  so  as  to  let  in 
bona  fide  claims  by  parties  who  have  not  in  fact  been  heard,  and  who  have 
had  no  opportunity  of  appearing.  This  power  is  discretionary,  and  should  not 
be  exercised  except  where  there  would  be  substantial  injustice  if  the  decree 
in  question  were  allowed  to  j>tand,  and  where  the  application  for  relief  has 
been  promptly  made." 

In  Hooper,  Adm'r,  v.  United  States,  22  Ct.  CI.  408,  454,  455  (1887),  Davis,  J., 
said : 

"The  burden  of  proof  in  prize  proceedings  is  on  the  seized  vessel.  The  au- 
thorities concur  in  this  general  statement,  but  the  principle  is  not  technical 
and  is  not  to  be  pushed  beyond  its  proper  natural  intent.  Seized  vessels 
always  appear  before  the  court  under  the  taint  of  suspicion;  that  taint  it  is 
incumbent  upon  them  to  remove,  as  it  is  in  their  power  alone  to  do  so.  What 
the  court  looks  for  is  the  fact.  If  it  appear  that  the  vessel  was  innocently 
pursuing  an  honest  and  legal  voyage,  whether  that  appear  by  papers  or  other- 
wise, then  the  vessel  should  be  released.  No  particular  papers,  no  specified 
character  of  evidence  is  marked  out  and  defined  as  indispensable  to  attain 


1062  RIGHTS  AND  DUTIES   OF  NATIONS  IN  TIME  OP  WAR         (Part  3 

this  end.  A  case  is  easily  supposable  in  which  a  merchant  vessel  has  lost  its 
papers  by  an  accident,  or  by  theft,  or  by  robbery  committed  by  a  pii-ate  or 
privateer,  or  through  suppression  by  the  captor,  and  it  would  not  be  ad- 
mitted— the  fact  of  their  non-production  being  explained,  and  the  vessel's 
honest  character  being  shown — that  because  some  particular  document  w^as 
not  on  board  she  therefore  should  be  condemned  and  confiscated.  The  onus 
probandi  is  on  the  captured  vessel;  which  means  no  more  than  that  she 
must  explain  away  suspicious  circumstances.'" 

Viscount  Tiverton  in  "The  Principles  and  Practice  of  Prize  Law,"  p.  91 
(1914),  says: 

"The  law  of  what  evidence  may  be  tendered  has  been  entirely  changed  by 
the  new  rules.  Formerly  the  only  evidence  which  could  be  tendered  in  the 
fii'st  instance  was  the  affidavit  as  to  ship  papers,  the  ship  papers  themselves, 
and  the  answers  to  standing  interrogatories  sworn  by  some  person  from  the 
captured  ship.  The  court  would,  however,  always  admit  further  evidence  if 
it  was  satisfied  that  such  evidence  was  false  and  fraudulent." 

The  Rules  of  Court  in  Prize  Proceedings,  issued  provisionally  August  5, 
and  as  statutory  rules  September  17,  1914,  provide  in  Order  II,  (a)  3,  that 
proceedings  for  condemnation  shall  be  instituted  in  the  name  of  the  crown, 
but  with  the  consent  of  the  crown  causes  may  be  conducted  by  the  captors. 

In  Order  XV,  2,  it  is  provided  that  the  cause  shall  be  heard  upon: 

"(a)  The  affidavit  as  to  ship  papers,  and  the  ship  papers,  if  any,  exhibited 
thereto ;  (b)  upon  the  affidavits  of  the  officers  of  the  ship  concerned  in  the 
capture ;  (c)  the  depositions  of  the  witnesses,  if  any,  examined  before  the 
hearing,  whether  such  witnesses  belong  to  the  captured  ship  or  are  tendered 
on  behalf  of  the  captors  or  of  any  other  party ;  (d)  the  evidence  given  at 
the  hearing  of  any  witnesses,  whether  on  behalf  of  the  captors  or  of  any 
other  party ;  and  (e)  such  further  evidence,  if  any,  as  may  be  admitted  by 
the  Judge."  Manual  of  Emergency  Legislation  Comprising  All  the  Acts  of 
Parliament,  Proclamations,  Orders,  etc.,  Passed  and  Made  in  Consequence  of 
the  War,  to  September  30,  1914,  pp.  256  et  seq. 

In  The  Parchim,  L.  R.  [1918]  App.  Cas.  157,  160  (1917),  the  Privy  Council 
declared  that  "it  is  well  settled  that  the  enemy  character  of  goods  seized  as 
prize  is  to  be  determined  by  property,  and  not  by  risk." 

In  The  Prinz  Adalbert.  L.  R.  [1917]  Appeal  Cases,  5S6  (1917),  it  was  held 
by  Lord  Sumner  that  the  question  whether  the  property  has  passed  depends 
upon  intention,  and  is  a  question  of  fact. 

In  The  Sydland,  L.  R.  [1917]  Prob.  Div.  161,  note  162  (1916)  Sir  Samuel 
Evans  held  that  "the  named  'consignee'  must  be  a  real  and  genuine  consignee 
in  the  business  and  commercial  .sense.  The  fact  that  a  person  who  happens 
to  bo  in  existence  is  named,  if  be  bo  merely  a  nominee  without  any  interest, 
or  dummy  consignee,  is  not  enough." 

"In  i^he  Prize  Court  the  neutral  trader  is  not  in  the  position  of  a  person 
charged  with  a  criminal  offence  and  presumed  to  be  ilinocent  unless  his  guilt 
is  established  beyond  reasonable  doubt.  He  comes  before  the  Prize  Court  to 
show  that  there  was  no  reasonable  suspicion  justifying  the  seizure  or  to 
displace  such  reasonable  suspicion  as  in  fact  exists.  The  state  of  the  captors 
is  necessarily  unable  to  in\estigate  the  relations  between  the  neutral  trader 
and  his  correspondents  in  enemy  or  neutral  countries,  but  the  neutral  trader 
is  or  ought  to  be  in  a  position  to  explain  doubtful  points.  If  his  goods  had 
no  such  destination  as  would  subject  them  to  condemnation  by  the  Prize 
Court,  it  is  his  interest  to  make  full  disclosure  of  all  the  details  of  the  trans- 
action. Only  if  his  goods  had  such  destination  can  it  be  his  interest  to  con- 
ceal anything  or  leave  anything  unexplained.  If  he  does  conceal  matters 
whif^h  it  is  material  for  the  court  to  know,  or  if  he  neglect  to  explain  matters 
which  he  is  or  ought  to  be  in  a  position  to  explain,  or  if  he  puts  forward  un- 
satisfactory or  contradictory  evidence  in  matters  the  details  of  which  must 
be  within  his  knowledge,  he  cannot  complain  if  the  court  draws  inferences 
adverse  to  his  claim  and  condemns  the  goods  in  question."  Per  Lord  Parker 
of  Waddington  in  The  Louisiana.  L.  R.  [1918]  App.  Cas.  461,  464,  465  (1918). 

"The  inference  to  be  attached  to  documentary  evidence  is  so  strong  in 
France  that  the  Conseil  d'Etat  has.  in  the  cases  of  The  Gorontalo,  Journal 
Officiel,  May  10,  1917,  p.  3714  (1917),  and  The  Iberia,  Journal  Officiel,  June 


Ch.  18)  ADJUDICATION   OF   PRIZE  1063 

THE  ANICHAB  and  other  Vessels  and  Craft. 
(High  Court  of  Justice,  1919.     [1919]  Prob.  329.) 

Action  for  the  condemnation  of  a  number  of  tugs,  lighters  and  other 
craft  and  material  as  enemy  property. 

The  property  seized,  which  for  the  most  part  belonged  to  the  Ger- 
man Woermann  Line,  was  seized  at  various  places  in  the  course  of 
the  campaign  in  German  Southwest  Africa.  A  claim  was  entered  on 
behalf  of  the  Woermann  Line  for  the  release  of  all  the  craft  and 
material  owned  by  them  on  the  ground  that  it  was  not  liable  to  con- 
demnation as  prize.     *     *     * 

The  Prksident  (Lord  Sterndalh).^*^  This  is  a  curious  case,  and 
raises  questions  which  now  first  come  before  me.  The  crown  asks 
for  condemnation  of  some  tugs,  lighters,  rafts  and  other  property, 
including  buoys  and  some  rope  fenders,  belonging  to  the  Woermann 
Line,  also  some  craft  supposed  to  be  the  property  of  the  German  gov- 
ernment and  craft  the  property  of  other  persons.  Most  of  the  craft 
and  articles  had  been  at  the  port  of  Swakopmund,  which  is  a  little 
north  of  Walfisch  Bay,  or  at  Luderitzbucht,  which  is  considerably  south 
of  that  place.  When  they  were  seized,  some  of  them  at  any  rate 
were  at  a  place  called  Omaruru,  which  is  about  148  miles  from  the 
coast,  and  others  were  at  Otavi,  which  is  about  310  miles  from  the 
coast. 

The  first  question  that  arises  is  in  respect  of  the  tugs  and  other 
craft  which  were  still  at  or  about  these  ports  at  the  time  when  oc- 
cupation was  taken  of  them  by  the  South  African  forces.  Possession 
was  taken  during  the  hostilities  which  took  place  between  the  gov- 
ernment of  the  Union  of  South  Africa  and  the  government  of  Ger- 

14,  1921,  p.  6S02  (1921),  reversed  the  decision  of  the  court  below  upon  pro- 
duction by  claimants  of  further  documents,  which  they  had  not  presented 
before,  and  which,  added  to  the  evidence  filed  in  the  first  instance,  were 
judged  sufficient  to  establish  their  ownership  on  the  goods."  C.  J.  Colombos. 
"Cargoes  in  the  Prize  Courts  of  Great  Britain,  France,  Italy  and  Germany," 
Journal  of  Comparative  Legislation  and  International  Law  (3d'  Series)  vol. 
3,  pt.  4,  pp.  286,  290  (October,  1921). 

"In  countries  where  the  Civil  Code  is  more  strongly  the  basis  of  municipal 
law  than  it  is  in  Great  Britain  the  evidence  derived  from  the  ship's  papers 
outweighs  all  other  considerations.  *  *  *  At  one  time  it  was  considered 
to  be  the  established  rule  in  France  that  the  evidence  of  property  must  come 
exclusively  from  the  documents  found  on  board.  This  was  the  principle  em- 
bodied in  the  Reglement  of  July  2(;.  1778.  During  the  last  war,  however,  the 
appellate  tribunal  (the  Conseil  d'Etat)  has  decreed,  by  a  liberal  interpretation 
of  the  old  practice,  that  claimants  will  be  receivable  in  invoking,  besides  the 
ship's  papers,  any  other  documents  capable  of  substantiating  their  eventual 
rights  of  ownership.  *  *  *  The  Boeroe,  Journal  Ofllciel,  December  24, 
1917,  p.  105.55  (1917)."  C.  J.  Colombos,  "Cargoes  in  the  Prize  Courts  of  Great 
Britain,  France,  Italy  and  Germany,"  Journal  of  Comparative  Legislation 
and  International  Law  (3d  Series)  vol.  3,  part  4,  pp.  2S6,  2S9,  290  (October, 
1921). 

10  Part  of  the  opinion  is  omitted. 


1064  RIGHTS   AND   DUTIES   OF   NATIONS   IN  TIME   OF   WAR         (Part  3 

man  Southwest  Africa,  being  part  of  the  general  hostilities  existing 
between  the  British  and  German  governments  at  that  time.  The  in- 
cidents which  preceded  the  taking  possession  of  these  goods  are  not  fully 
detailed  in  the  evidence  that  I  have  before  me;  but  I  gather  that 
one  of  these  ports,  at  any  rate,  had  been  bombarded  by  a  British 
cruiser,  and  I  take  it  that  a  portion  of  the  British  forces  was  conveyed 
on  transports  to  these  ports.  How  the  rest  of  the  forces  arrived  at 
the  various  spots  I  have  not  been  told.  I  think  Luderitzbucht  was 
occupied  somewhere  about  September,  1914,  and  Swakopmund  in  Jan- 
uary, 1915.  At  that  time  there  were  found  some  of  the  tugs  and  craft 
which  had  been  afloat  in  these  two  harbours.  Some  of  the  craft  were 
afloat ;  some  were  beached  below  high  water ;  others  of  the  craft  were 
beached  above  high  water.  In  some  cases  they  had  been  beached  for 
the  purpose  of  repairs,  or  because  they  v/ere  not  required  at  the  mo- 
ment ;  and  in  some  cases  I  think  they  had  been  beached  in  consequence 
of  the  approach  o^  the  Union  forces,  and  in  order  that  they  might 
be  to  that  extent  safe.  When  the  Union  forces  took  possession  of 
these  ports,  I  am  satisfied  that  they  also  took  possession  of  all  these 
craft,  which  were  then  either  afloat  or  beached  above  or  below  the 
high  water  line,  and  that,  therefore,  there  was  a  seizure  at  that  time. 

The  first  question  that  arises  is  whether  those  craft  are  the  sub- 
ject of  maritime  prize.  I  cannot  have  any  doubt  that  they  are,  subject 
to  the  question  of  the  Hague  Convention,  with  which  I  shall  deal 
hereafter.  It  does  not  seem  to  me  to  matter  in  the  least  whether 
the  vessels  or  the  craft — because  some  of  these  could  hardly  be  called 
vessels — which  are  being  used  for  navigation  upon  the  seas,  not  the 
high  seas  necessarily,  but  upon  the  seas,  either  coastwise  or  on  the 
high  seas,  were  at  the  moment  in  the  water  or  on  the  beach.  It  does 
not  seem  to  me  to  matter  whether  the  possession  of  them  was  taken 
by  somebody  who  was  a  commissioned  officer  of  His  Majesty's  Navy, 
or  somebody  who  was  operating  under  the  authority  of  the  crown  for 
the  purpose  of  hostilities  which  involves  taking  possession  of  enemy 
property  at  sea.  They  are  craft  which  were  intended  for  navigation, 
either  coastwise  or  on  the  high  sea;  and,  therefore,  the  belligerent 
is  entitled  to  seize  them.  The  fact  that  they  have  been  beached  ei- 
ther above  or  below  high  water  can  no  more  defeat  his  right  to  seize 
them  than  in  the  case  of  goods  which  have  come  across  the  sea  and 
have  been  put  into  warehouses  in  the  port  to  which  they  were  destined, 
or,  like  the  oil  in  The  Roumanian,  [1916]  1  A.  C.  124,  pumped  into 
tanks  which  are  within  the  ambit  of  the  port.  I  do  not  know  whether 
these  places,  Swakopmund  or  Luderitzbucht,  have  any  defined  limits 
as  a  port  or  not;  but  certainly  for  the  purposes  of  prize,  if  it  be  a 
question  of  being  within  the  port,  I  should  say  that  a'l  these  craft, 
beached  as  they  were,  were  just  as  much  within  the  port,  and,  there- 
fore, just  as  much  seizable  as  the  craft  which  were  afloat.     *     *     * 

Therefore,  to  my  mind,  those  craft  which  were  taken  afloat  or 


Ch.  18)  ADJUDICATION   OF   PRIZE  1065 

beached,  either  above  or  below  high  water  line,  at  either  of  these 
places,  are  good  and  lawful  prize,  and  should  be  condemned  as  such. 

But  now  comes  a  very  different  question,  and  a  much  more  difficult 
one  on  which  I  have  great  doubt.  It  arises  in  these  circumstances. 
When  the  Union  troops  were  approaching,  whether  they  approached 
by  land  or  by  sea,  a  number  of  these  lighters  were  put  on  rail  and 
sent  up  to  the  interior  of  the  country.  I  think  some  were  sent  about 
100  miles,  and  some  were  sent  about  300  miles,  and  some  possibly  to 
other  places  at  different  distances.  The  bulk  of  them  were  at  Otavi 
and  at  Omaruru.  They  were  taken  up  to  Omaruru  in  August  and 
September,  1914,  and  to  Otavi  in  March  and  April,  1915.  Between 
the  time  of  September,  1914,  when  Luderitzbucht  was  occupied,  and 
January,  1915,  when  Swakopmund  was  occupied,  there  is  a  blank,  and 
I  am  told  nothing  at  all  as  to  what  the  Crown  were  doing,  or  what  the 
operations  were,  until  Omaruru  was  captured  on  June  20  and  Otavi 
on  July  1,  1915.  The  only  information  before  the  court  is  the  affi- 
davit of  the  Secretary  to  the  Admiralty,  Sir  Oswyn  Murray,  in  which 
he  says  that:  "His  Majesty's  mihtary  forces  operating  under  the  gov- 
ernment of  the  Union  of  South  Africa  in  German  Southwest  Africa, 
occupied  Luderitzbucht  on  September  19,  1914,  and  Swakopmund  on 
January  14,  1915,  both  those  places  being  on  the  coast  of  that  Pro- 
tectorate. And  in  the  course  of  their  operations  in  the  said  German 
Protectorate  the  said  forces  occupied  the  northern  section  of  the  rail- 
way lines  from  Swakopmund  to  Otavi  and  found  and  seized  at  Omaru-- 
ru,  148  miles  inland,  six  lighters,  and  at  Otavi,  310  miles  inland,  a 
launch  and  some  lighters,  rope  fenders  and  other  matters." 

That  suggests  to  me,  when  it  is  said  that  the  forces  occupied  the 
northern  section  of  the  railway  lines  from  Swakopmund  to  Otavi,  that 
they  were  approaching  that  section  of  railway  from  the  land  and  not 
from  the  sea,  and  it  suggests  to  me  a  land  operation.  The  first  part 
that  would  be  occupied  would  be  the  southern  part,  which  adjoins  the 
coast  line,  and  that  might  have  been  occupied  early ;  it  may  only  mean 
that  it  was  not  until  June  and  July  that  they  occupied  the  northern 
part,  and  so  were  in  possession  of  the  whole — I  do  not  know.  It  is 
left  very  vague,  and  I  do  not  know  exactly  what  it  means.  But  that 
is  the  only  evidence  I  have.  Upon  that  the  position  stands  in  this 
way.  There  was  an  occupation  of  the  two  places  on  the  coast  in 
September,  1914,  and  in  January,  1915,  respectively.  No  doubt  op- 
erations of  some  kind  were  going  on  in  the  meantime.  What  they 
were  I  have  not  been  told.  Six  months  afterwards,  speaking  roughly 
on  June  20,  Omaruru  was  captured,  and  on  July  1  Otavi  was  captured, 
and  captured  by  the  military  forces.  At  these  places  there  were  found, 
not  afloat,  not  in  the  river — the  river  was  not  passable,  as  I  understand 
■ — but  ashore,  these  lighters  and  other  things,  which  had  been  taken 
up  there,  no  doubt  for  the  purpose  of  avoiding  capture,  and  had  re- 
mained there  until,  as  a  result  of  the  climate  and  of  the  necessity  of 


1066  RIGHTS  AND   DUTIES   OF   NATIONS   IN   TIME  OF   WAR         (Part  3 

keeping  them  damp  in  order  to  avoid  their  becoming  cracked  and  the 
seams  opening  altogether,  one  of  them  at  any  rate  had  become  quite 
covered  with  vegetation.  The  vegetation  on  the  others  does  not  seem 
to  have  been  quite  so  luxuriant. 

The  question  is  whether  they  still  remained  at  the  time  they  were 
seized — and  for  the  purposes  of  my  judgment  I  am  going  to  take  the 
date  given  by  Sir  Oswyn  Murray  as  the  date  of  seizure,  namely,  the 
date  when  these  two  places  were  occupied — the  subject  of  maritime 
prize.  I  should  not  have  any  right  to  doubt — and  I  have  not  any 
doubt — that  Lord  Parker  was  correct  in  saying,  as  he  did  in  The 
Roumanian,  [1916]  1  A.  C.  124,  that  if  property  is  Hable  to  seizure 
at  sea,  and  the  enemy  succeeds  in  getting  ashore  and  escaping  with 
his  property,  the  belligerent  who  is  trying  to  capture  it  has  a  right 
to  pursue  him  and  to  take  the  property  from  him.  I  do  not  wish 
to  throw  the  slightest  doubt  on  that  proposition.  It  was  contended 
that  I  ought  to  treat  this  as  a  case  of  that  kind,  which  is  called  some- 
times a  case  of  hot  pursuit.  This  hot  pursuit  took  six  months,  if  it 
was  a  hot  pursuit.  I  do  not  mean  by  that  to  say  for  a  moment  that 
the  forces  might  not  have  been  in  hot  pursuit  all  the  time,  and  they 
might  have  been  getting  on  as  fast  as  they  could  after  these  craft 
to  try  and  get  them ;  but  I  have  no  evidence  that  they  were.  It  is 
just  as  consistent  on  the  evidence  before  me  that  that  expedition  and 
these  operations  might  have  ceased  for  a  time,  and  a  new  operation 
begun.  I  do  not  suggest  it  was. so;  I  do  not  know.  All  I  know  is, 
that  after  the  first  taking  possession  of  the  ports,  there  was  an  inter- 
val of  about  six  months  before  these  craft  were  taken  at  places  re- 
spectively 150  and  300  miles  up  the  country  and  were  taken  on  land 
by  military  forces.  It  does  not  seem  to  me,  in  those  circumstances, 
that  they  are  the  subject  of  maritime  prize.  I  do  not  think  it  matters 
that  they  are  craft  that  can  be,  and  no  doubt  when  they  come  into 
the  possession  of  their  former  owners  will  be,  put  into  the  water  again. 
They  are  property  on  land.  They  are  taken  by  the  land  forces  in  land 
operations,  and  therefore  I  do  not  think  they  are  the  subject  of  mari- 
time prize. 

With  regard  to  the  lights  and  other  property  seized  in  the  interior 
there  must  be  an  order  of  release  so  far  as  concerns  release  as  prize — 
they  must  be  released  from  the  Prize  Court.^*     *     *     * 

II  Affirmed  on  appeal,  [1921]  38  Times  Law  Reports,  183. 

For  the  jurisdiction  of  German  Prize  Courts,  see  The  Eeinland  and  Gaaster- 
land,  Entscheidungen  des  Oberprisehgerichts  in  Berlin,  1918,  388  (1917). 

These  were  Dutch,  and  therefore  neutral,  steamers,  sunk  on  February  22, 
1917,  in  the  North  Sea,  by  a  German  steamer,  because  they  were  found  in  a 
part  of  the  Sea  declared  by  the  German  proclamation  of  February  4.  1917.  to 
be  a  barred  zone.  They  had  been  insured,  and  the  insurance  companies 
brought  suit  for  damages  for  the  destruction  of  the  vessels. 

The  Prize  Court  dismissed  the  snit  on  the  ground  that  German  Prize  Courts 
could  only  deal  with  matters  laid  before  them  by  the  Admiralty  Staff.  In  the 
course  of  its  opinion,  it  is  said  : 

"According  to  the  construction  of  Prize  Court  procedure  in  the  Regulations 


Ch.  18)  ADJUDICATION   OF   PRIZE  1067 

■of  the  Prize  Court,  the  surrender  of  the  prize  to  the  Prize  Administration,  or, 
if  the  capture  did  not  lead  to  the  confiscation  of  the  prize,  the  transmission  of 
the  prize  report  prompted  by  the  Admiralty  Staff,  or,  in  default  thereof,  of 
communications  to  the  Prize  Court,  is  the  necessary  basis  and  prerequisite 
for  the  initiation  of  the  proceedings.  Communications  or  allegations  of  pri- 
vate parties  interested  in  the  matter  are  not  sufficient,  and  can  not  give  rise 
to  the  public  summons  inviting  a  justification  of  claims,  prescribed  by  para- 
graph 26  of  the  Prize  Court  Regulations,  which  summons  forms  the  basis  for 
prize  proceedings." 

In  regard  to  the  jurisdiction  of  the  court,  and  the  reason  why  it  was  in- 
competent in  the  pre.sent  instance,  the  opinion  says : 

"The  real  competence  of  the  Prize  Courts  is  not  decided  by  standards  of 
international  law  but  only  by  national  law.  Therefore,  prize  jurisdiction  is  va- 
riously ordered  in  different  countries.  For  the  competency  of  the  German  Prize 
Courts,  the  German  Prize  Court  Regulations  in  connection  with  the  Prize 
Regulations  are  the  only  deciding  factor.  According  to  paragraph  1  of  the 
Prize  Court  Regulations  the  competency  of  the  court  consists  in  deciding  on 
the  legality  of  prizes  made  in  a  war;  and  prizes  in  the  sense  of  the  Prize 
Court  Regulations  are,  according  to  paragraph  2,  understood  to  comprise 
enemy  or  neutral  merchantmen  as  well  as  enemy  or  neutral  merchandise 
found  on  such  steamers,  in  so  far  as  they  are  confiscated,  in  the  exercise  of 
prize  law.  Tlie  Prize  Regulations  determine  the  nature  of  prize  law.  But 
these  regulations  contain  provisions  with  regard  to  the  destruction  of  mer- 
chantmen only  in  se  far  as  this  destruction  occurs  after  the  confiscation  (cap- 
ture) of  the  ship  and  for  the  reason  that  the  ship  was  considered  hostile  or 
equivalent  thereto,  or  that  it  was  carrying  contraband,  was  violating  a  block- 
ade or  was  guilty  of  unneutral  aid.  If  the  destruction  of  a  merchantman 
occurs  for  any  other  reason  and  without  confiscation  of  the  ship  as  a  prize, 
the  said  destruction  may,  to  be  sure,  be  considered  a  war  measure;  but  it  can 
not  be  regarded  as  an  act  in  accordance  with  prize  law,  and  the  Prize  Courts 
are  not  competent  to  pass  judgment  on  the  legality  of  such  an  act. 

"This  opinion  also  formed  the  basis  of  the  decision  of  the  Superior  Prize 
Court  of  April  27,  1917,  in  the  matter  of  the  Dutch  fishing  steamer  Geertruida 
(No.  71  of  the  present  series  [Id.  302]).  In  that  case  the  ship  was  destroyed 
by  a  German  U-boat  because  the  commander  and  the  crew  of  the  latter  as- 
sumed that  the  fishing  steamer  was  armed  and  was  attempting  to  make  an 
attack  upon  the  U-boat  which  was  prompted  by  no  measures  of  the  Prize 
Law.  Since  the  U-boat  intended  merely  to  ward  off  and  defeat  this  attack 
the  Superior  Prize  Court  in  that  case,  too,  denied  tlae  prerequisites  of  a  prize 
case  and  consequently  the  competency  of  the  Prize  Courts." 

In  The  United  Combed  Wool  Spinning  Mills  of  SchaftTiausen  &  Derendingen, 
Ms.  Department  of  State,  translation,  16  American  Journal  of  International 
Law  (1922)  p.  142  (1917),  the  French  Prize  Court  refused  to  assume  jurisdic- 
tion of  three  boxes  of  woolen  fabrics  sent  overland  to  be  loaded  on  the  Dutch 
steamer  Ary  Scheffer,  at  Havre.  They  were  seized  in  the  railroad  station  at 
Havre  before  their  embarkation. 


1068  EIGHTS   AND   DUTIES  OF  NATIONS  IN  TIME   OF   WAR         (Part  3 

JECKER  et  al.  v.  MONTGOMERY. 
(Supreme  Court  of  the  United  States,  1851.    13  How.  498,  14  L.  Ed.  240.) 

Mr.  Chief  Justice  Taney  delivered  the  opinion  of  the  court. 

This  case  arises  upon  the  capture  of  the  ship  Admittance  during  the 
late  war  with  Mexico,  by  the  United  States  sloop  of  war  Portsmouth, 
commanded  by  Captain  Montgomery. 

The  Admittance  was  an  American  vessel,  and  after  war  was  de- 
clared, sailed  from  New  Orleans  with  a  valuable  cargo,  shipped  at  that 
place.  She  cleared  out  for  Honolulu,  in  the  Sandwich  Islands ;  and 
was  found  by  the  Portsmouth  at  Saint  Jose,  on  the  coast  of  California, 
trading,  as  it  is  alleged,  with  the  enemy. 

Before  this  capture  was  made  a  prize  court  had  been  established  at 
Monterey,  in  California,  by  the  militar}-  officer,  exercising  the  func- 
tions of  governor  of  that  province,  which  had  been  taken  possession 
of  by  the  American  forces.  A  chaplain,  belonging  to  one  of  the  ships 
of  war  on  that  station,  was  appointed  Alcalde  of  Monterey,  and  au- 
thorized to  exercise  admiralty  jurisdiction  in  cases  of  capture.  The 
court  was  established  at  the  request  of  Commodore  Biddle,  the  naval 
commander  on  that  station,  and  sanctioned  by  the  President  of  the 
United  States,  upon  the  ground  that  prize  crews  could  not  be  spared 
from  the  squadron  to  bring  captured  vessels  into  a  port  of  the  United 
States.  And  the  officers  of  the  squadron  were  ordered  to  carry  their 
prizes  to  Monterey,  and  libel  them  for  condemnation  in  the  court  above 
mentioned,  instead  of  sending  them  to  the  United  States. 

In  pursuance  of  this  order  the  Admittance  was  carried  to  Monterey, 
and  condemned  by  the  court  as  lawful  prize ;  and  the  vessel  and  cargo 
sold  under  this  sentence.  The  seizure  at  Saint  Jose  was  made  on 
the  7th  of  April,  1847,  and  the  ship  and  cargo  condemned  on  the  1st 
of  June,  in  the  same  year.     *     *     *  12 

In  relation  to  the  proceedings  in  the  court  at  Monterey,  which  is 
the  subject  of  the  first  demurrer,  the  decision  of  the  Circuit  Court  is 
correct. 

All  captures  jure  belli  are  for  the  benefit  of  the  sovereign  under  whose 
authority  they  are  made ;  and  the  validity  of  the  seizure  and  the  ques- 
tion of  prize  or  no  prize  can  be  determined  in  his  own  courts  only,  upon 
which  he  has  conferred  jurisdiction  to  try  the  question.  And  under 
the  Constitution  of  the  United  States  the  judicial  power  of  the  general 
government  is  vested  in  one  Supreme  Court,  and  in  such  inferior  courts 
as  Congress  shall  from  time  to  time  ordain  and  establish.  Every  court 
of  the  United  States,  therefore,  must  derive  its  jurisdiction  and  judi- 
cial authority  from  the  Constitution  or  the  laws  of  the  United  States. 
And  neither  the  President  nor  any  military  officer  can  establish  a  court 

12  Only  that  portion  of  the  opinion  dealing  with  the  validity  of  the  court 
constituted  under  such  circumstances  to  entertain  and  to  decide  the  question 
of  prize,  is  here  printed. 


Ch.  18)  ADJUDICATION  OF  PRIZE  10G9 

in  a  conquered  country,  and  authorize  it  to  decide  upon  the  rights  of 
the  United  States,  or  of  individuals  in  prize  cases,  nor  to  administer 
the  laws  of  nations. 

The  courts,  established  or  sanctioned  in  Mexico  during  the  war  by 
the  commanders  of  the  American  forces,  were  nothing  more  than  the 
agents  of  the  military  power,  to  assist  it  in  preserving  order  in  the 
conquered  territory,  and  to  protect  the  inhabitants  in  their  persons 
and  property  while  it  was  occupied  by  the  American  arms.  They 
were  subject  to  the  military  power,  and  their  decisions  under  its  con- 
trol, whenever  the  commanding  officer  thought  proper  to  interfere. 
They  were  not  courts  of  the  United  States,  and  had  no  right  to  ad- 
judicate upon  a  question  of  prize  or  no  prize.  And  the  sentence  of 
condemnation  in  the  court  at  Monterey  is  a  nullity,  and  can  have  no 
effect  upon  the  rights  of  any  party.     *     *     * 


SECTION  3.— EFFECT  OF  PRIZE  DECISIONS 


HUGHES  and  CORNELIUS. 

(King's  Bench,   1682.     Skinner,  59.) 

The  case  between  Hughes  and  Cornelius  was,  a  ship  was  Dutch 
built,  and  after  made  an  English  ship,  the  master  was  Dutch,  some 
of  the  seamen  English,  and  two  Dutch :  there  being  war  between 
France  and  Holland,  the  French  seise  the  ship,  as  a  Dutch  ship,  and 
condemn  her  as  a  Dutch  .ship  in  the  Court  of  Admiralty  in  France ; 
she  is  there  sold,  and  after  coming  into  England,  the  first  owner  seises 
her,  and  the  other  brings  trover,  and  a  special  verdict  was  found ; 
but  the  Court  would  not  suffer  it  to  be  argued,  but  ordered  judgment 
to  be  entered  for  the  plaintiff;  for  they  said,  that  sentences  in  Courts 
of  Admiralty  ought  to  bind  generally  according  to  jus  gentium;  and 
that  if  we  did  not  observe  the  sentences  given  abroad,  they  would  not 
observe  ours,  which  would  be  a  general  inconvenience;  and  if  the 
merchant  in  this  case  had  received  wrong,  he  ought  to  apply  to  the 
Admiralty  and  council,  this  being  a  matter  of  government;  and  that 
the  King  if  he  saw  cause  would  send  to  his  Ambassador  Leiger  in 
France,  who  would  take  care  that  right  should  be  done;  and  that  if 
right  be  not  done,  then  the  King  would  grant  letters  of  marque  and 
reprisal ;  and  in  this  case  they  remembered  Cottington's  case. 


1070  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME  OF   WAR         (Part  3 

THE  FLAD  OYEN. 

(High  Court  of  Admiralty,  1799.    1  0.  Rob.  135.) 

This  was  a  case  of  an  English  prize  ship  carried  into  a  neutral  coun- 
try, and  there  sold,  under  a  sentence  of  condemnation  by  the  French 
consul,  and  taken,  the  12th  of  January,  1798,  on  a  voyage  from  Bergen 
to  St.  Martins.  The  claim  was  given  on  behalf  of  the  purchaser,  a 
Danish  merchant. 

The  King's  Advocate  having  opened  the  general  circumstances  of  the 
case, 

The  Court  said :  This  is  a  case  in  which  I  must  call  on  the  counsel 
for  the  claimant  to  begin. 

Arnold  and  Sewell.  The  title  to  this  vessel  can  scarcely  be  called 
in  question  on  any  doubts  respecting  the  property,  or  the  actual  trans- 
fer. There  are  all  the  usual  proofs  of  property  on  board,  and  the 
transfer  is  described  to  have  been  made  in  the  most  open  manner,  by 
public  auction.  The  only  ground  on  which  it  can  be  disputed,  there- 
fore, must  be  on  the  legality  of  such  a  sale ;  and,  for  that  purpose,  it 
is  contended  that  a  sentence  of  condemnation  is  essential  to  the  trans- 
fer of  prize  ships,  and  that  a  legal  condemnation  did  not  pass  on  this 
occasion.  But  it  nowhere  appears  what  are  the  forms  and  circum- 
stances necessary  to  make  this  a  legal  act.  A  condemnation  took  place, 
and  under  the  person  delegated  by  the  French  nation  to  exercise  this 
function.  There  is  no  reason  to  contend  that  the  name  and  process 
of  an  Admiralty  Court  are  necessary,  as  long  as  the  proceedings  are 
held  under  the  public  authority  of  the  belligerent  country,  and  are  con- 
formable to  the  law  of  nations.     *     *     * 

The  practice  of  our  own  country,  also,  has  in  many  instances  pro- 
ceeded on  this  principle.  English  captors  have  taken  their  prizes  into 
Lisbon  and  Leghorn,  and  condemnations  have  passed  upon  them  lying 
there.  In  the  last  war,  they  carried  them  to  Nice;  and  there  was  an 
instance  of  a  ship,  the  Favorite,  carried  into  this  very  port  of  Bergen, 
and  condemned.  On  these  grounds,  it  is  submitted,  this  practice  can- 
not be  impeached  as  illegal,  and  the  claim  to  the  property  in  question, 
transferred  under  it,  must  therefore  be  admitted. 

Sir  W.  Scott. ^*  This  is  the  case  of  a  ship  taken  by  a  French  pri- 
vateer, and  carried  into  the  port  of  Bergen  in  Norway,  where  it  ap- 
pears she  underwent  a  sort  of  process,  which  terminated  in  a  sentence 
of  condemnation,  pronounced  by  the  French  consul ;  and  under  that 
sentence,  she  is  asserted  to  have  been  transferred  to  the  present  neu- 
tral proprietor.     *     *     * 

But  another  question  has  arisen  in  this  case,  upon  which  a  great 
deal  of  argument  has  been  employed;   namely,  whether  the  sentence 

1*  Parts  of  the  opinion  are  omitted. 


Ch,  18)  ADJUDICATION   OF   PRIZE  1071 

of  condemnation  which  was  pronounced  by  the  French  consul,  is  of 
such  legal  authority  as  to  transfer  the  vessel,  supposing  the  purchase 
to  have  been  bona  fide  made  ?  I  directed  the  counsel  for  the  claimants 
to  begin;  because,  the  sentence  being  of  a  species  altogether  new,  it 
lay  upon  them  to  prove  that  it  was  nevertheless  a  legal  one. 

It  has  frequently  been  said,  that  it  is  the  peculiar  doctrine  of,  the 
law  of  England  to  require  a  sentence  of  condemnation,  as  necessary  to 
transfer  the  property  of  prize;  and  that  according  to  the  practice  of 
some  nations  twenty-four  hours,  and  according  to  the  practice  of  others 
bringing  infra  presidia,  is  authority  enough  to  convert  the  prize.  I 
take  that  to  be  not  quite  correct ;  for  I  apprehend,  that  by  the  general 
practice  of  the  law  of  nations,  a  sentence  of  condemnation  is  at  pres- 
ent deemed  generally  necessary,^^  and  that  a  neutral  purchaser  in  Eu- 
rope, during  war,  does  look  to  the  legal  sentence  of  condemnation  as 
one  of  the  title  deeds  of  the  ship,  if  he  buys  a  prize  vessel.  I  believe 
there  is  no  instance  in  which  a  man  having  purchased  a  prize  vessel 
of  a  belligerent,  has  thought  himself  quite  secure  in  making  that  pur- 
chase, merely  because  the  ship  had  been  in  the  enemy's  possession 
twenty- four  hours,  or  earned  infra  presidia;  the  contrary  has  been 
more  generally  held,  and  the  instrument  of  condemnation  is  amongst 
those  documents  which  are  most  universally  produced  by  a  neutral 
purchaser;  that  if  she  has  been  taken  as  prize,  it  should  appear  also 
that  she  has  been,  in  a  proper  judicial  form,  subjected  to  adjudication. 

Now,  in  what  form  have  these  adjudications  constantly  appeared? 
They  are  the  sentences  of  courts  acting  and  exercising  their  functions 
in  the  belligerent  country ;  and  it  is  for  the  very  first  time  in  the 
world,  that  in  the  year  1799,  an  attempt  is  made  to  impose  upon  the 
court  a  sentence  of  a  tribunal  not  existing  in  the  belligerent  country, 
but  of  a  person  pretending  to  be  authorized  within  the  dominions  of  a 
neutral  country;  in  my  opinion,  if  it  could  be  shown,  that,  regarding 
mere  speculative  general  principles,  such  a  condemnation  ought  to  be 
deemed  sufficient,  that  would  not  be  enough ;  more  must  be  proved ; 
it  must  be  shown  that  it  is  conformable  to  the  usage  and  practice  of 
nations. 

A  great  part  of  the  law  of  nations  stands  on  no  other  foundation; 
it  is  introduced,  indeed,  by  general  principles,  but  it  travels  with 
those  general  principles  only  to  a  certain  extent ;  and,  if  it  stops  there, 
you  are  not  at  liberty  to  go  farther,  and  to  say,  that  mere  general  specu- 
lations would  bear  you  out  in  a  further  progress.  Thus,  for  instance, 
on  mere  general  principles  it  is  lawful  to  destroy  your  enemy,  and 
mere  general  principles  make  no  great  difference  as  to  the  manner  by 
which  this  is  to  be  effected;  but  the  conventional  law  of  mankind, 
which  is  evidenced  in  their  practice,  does  make  a  distinction,  and  al- 

16  1  Kent,  Comm.  103 ;  The  Santa  Cruz,  1  C.  Rob.  50  (1798) ;  La  Nereyda,  8 
Wheat.  lOS,  5  L.  Ed.  574  (1S23)  ;    The  Ceylon,  1  Dod.  119  (1811). 


1072  RIGHTS  AND   DUTIES   OF  NATIONS   IN  TIME  OF  WAE         (Part  3 

lows  some,  and  prohibits  other  modes  of  destruction;  and  a  belliger- 
ent is  bound  to  confine  himself  to  those  modes  which  the  common 
practice  of  mankind  has  employed,  and  to  relinquish  those  which  the 
same  practice  has  not  brought  within  the  ordinary  exercise  of  war, 
however  sanctioned  by  its  principles  and  purposes.^® 

Now,  it  having  been  the  constant  usage,  that  the  tribunals  of  the 
law  of  nations  in  these  matters  shall  exercise  their  functions  within 
the  belHgerent  country ;  if  it  was  proved  to  me  in  the  clearest  manner, 
that  on  mere  general  theory  such  a  tribunal  might  act  in  the  neutral 
country,  I  must  take  my  stand  on  the  ancient  and  universal  practice 
of  mankind,  and  say  that  as  far  as  that  practice  has  gone,  I  am  will- 
ing to  go,  and  where  it  has  thought  proper  to  stop,  there  I  must  stop 
likewise. 

It  is  my  duty  not  to  admit,  that  because  one  nation  has  thought 
proper  to  depart  from  the  common  usage  of  the  world,  and  to  meet 
the  notice  of  mankind  in  a  new  and  unprecedented  manner,  that  I  am 
on  that  account  under  the  necessity  of  acknowledging  the  efficacy  of 
such  a  novel  institution,  merely  because  general  theory  might  give  it 
a  degree  of  countenance,  independent  of  all  practice  from  the  earliest 
history  of  mankind.  The  institution  must  conform  to  the  text  law, 
and  likewise  to  the  constant  usage  of  the  matter;  and  when  I  am 
told,  that  before  the  present  war,  no  sentence  of  this  kind  has  ever 
been  produced  in  the  annals  of  mankind,  and  that  it  is  produced  by 
one  nation  only  in  this  war,  I  require  nothing  more  to  satisfy  me,  that 
it  is  the  duty  of  this  court  to  reject  such  a  sentence  as  inadmissible. 

Having  thus  declared  that  there  must  be  an  antecedent  usage  upon 
the  subject,  I  should  think  myself  justified  in  dismissing  this  matter 
without  entering  into  any  farther  discussion.  But  even  if  we  look 
farther,  I  see  no  sufficient  ground  to  say,  that  on  mere  general  prin- 
ciples such  a  sentence  could  be  sustained ;  proceedings  upon  prize  are 
proceedings  in  rem,  and  it  is  presumed,  that  the  body  and  substance 
of  the  thing  is  in  the  country  which  has  to  exercise  the  jurisdiction. 
I  have  not  heard  any  instances  quoted  to  the  contrary,  excepting  in  a 
very  few  cases  which  have  been  urged,  argumentatively,  in  the  way 
which  is  technically  called  ad  hominem,  being  cases  of  condemnations 
of  British  prizes  carried  into  the  ports  of  Lisbon  and  Leghorn ;  but  in 
those  the  condemnations  were  pronounced  by  the  High  Court  of  Ad- 
miralty in  England.  The  only  cases  are  of  two  ships  carried  into  for- 
eign ports,  and  condemned  in  England  by  this  court ;  the  very  inf re- 
quency  of  such  a  practice  shows  the  irregularity  of  it.  Upon  cases 
in  the  practice  of  other  nations  antecedent  to  the  present  war,  the  ad- 
vocates have  been  silent. 

Now,  as  to  these  condemnations  of  prizes  carried  to  Lisbon  and 
Leghorn,  it  has  been  said)  that  if  the  courts  of  Great  Britain  venture 

16  See  1  Kent,  Coram.  2,  3. 


Ch.  18)  ADJUDICATION   OF  PRIZE  1073 

this  degree  of  irregularity,  other  countries  have  a  right  to  go  farther. 
That  consequence  I  deny.  The  true  mode  of  correcting  the  irregular 
practice  of  a  nation  is,  by  protesting  against  it,  and  by  inducing  that 
country  to  reform  it.  It  is  monstrous  to  suppose,  that  because  one 
country  has  been  guilty  of  an  irregularity,  every  other  country  is  let 
loose  from  the  law  of  nations,  and  is  at  liberty  to  assume  as  much  as 
it  thinks  fit. 

Upon  these  ports  of  Lisbon  and  Leghorn  it  is  to  be  remarked,  that 
they  have  a  peculiar  and  discriminate  character,  a  character  that  to 
a  certain  degree  assimilates  them  to  British  ports.  The  British  exist 
there  in  a  distinct  character,  under  the  protection  of  peculiar  treaties ; 
and  with  respect  to  Portugal,  those  treaties  go  so  far  as  to  engage,  that 
if  a  ship  belonging  to  one  country  shall  be  brought  by  its  enemy  into 
the  ports  of  another,  which  happens  to  be  at  peace,  this  neutral  coun- 
try shall  be  bound  to  seize  that  ship,  and  restore  it  to  its  ally.  To  be 
sure  no  covenant  can  have  more  the  effect  of  giving  the  ports  of  Eng- 
land and  Portugal  a  reciprocal  relation  of  a  very  peculiar  sort — to 
make  the  British  ports  Portuguese  ports,  and  the  Portuguese  ports 
British  ports  to  a  certain  degree.  Now,  unless  I  am  given  to  under- 
stand that  peculiar  treaties  between  France  and  Denmark  have  im- 
pressed such  a  distinctive  character  upon  the  port  of  Bergen,  I  cannot 
allow  that  it  can  be  considered,  on  the  mere  footing  of  general  neutral- 
ity, to  be  a  French  port,  exactly  in  the  same  manner  in  which  London 
may  be  considered  as  a  Portuguese  port,  or  Lisbon  as  a  British  port. 

But  supposing  this  possible,  still  it  would  not  follow  that  such  con- 
demnations could  be  pleaded  as  authorities  in  the  present  case ;  because, 
in  the  first  place,  the  validity  of  such  condemnations  themselves  may 
be  the  subject  of  reasonable  doubt,  for  it  by  no  means  appears  that 
the  enemy,  or  neutrals,  who  might  have  an  interest  in  contesting  them, 
have  ever  acknowledged  their  validity.  Whoever  purchases  under 
such  sentences  must  be  content  to  purchase  them  subject  to  all  the 
questions  that  may  arise'  upon  their  sufficiency. 

But,  2dly,  supposing  that  no  doubts  could  be  entertained  respecting 
the  sufficiency  of  such  sentences,  it  by  no  means  follows  that  the  ef- 
ficacy of  the  present  sentence  can  be  supported.  There  the  tribunal 
is  acting  in  the  country  to  which  it  belongs,  and  with  whose  authority 
it  is  armed.  Here  a  person,  utterly  naked  of  all  authority  except  over 
the  subjects  of  his  own  country,  and  possessing  that  merely  by  the 
indulgence  of  the  country  in  which  he  resides,  pretends  to  exercise  a 
jurisdiction  in  a  matter  in  which  the  subjects  of  many  other  states 
may  be  concerned.  No  such  authority  was  ever  conceded  by  any 
country  to  a  foreign  agent  of  any  description  residing  within  it;  and 
least  of  all  could  such  an  authority  be  conceded  in  the  matter  of  prize 
of  war — a  matter  over  which  a  neutral  country  has  no  cognizance 
whatever,  except  in  the  single  case  of  an  infringement  of  its  own  ter- 
ritory, and  in  which  such  a  concession  of  authority  cannot  be  made 
Scott  Int.Law— 68 


1074  RIGHTS   AND   DUTIES   OF  NATIONS   IN   TIME   OF   WAR         (Part  3 

without  departing  from  the  duties,  and  losing  the  benefits,  of  its  neu- 
tral character. 

Mark  the  consequences  which  must  follow  from  such  a  pretended 
concession.  Observe  in  the  present  case  how  it  would  affect  the  neutral 
character  of  the  ports  in  the  north!  If  France  can  station  a  judge  of 
the  Admiralty  at  Bergen,  and  can  station  there  its  cruisers  to  carry 
in  prizes  for  that  judge  to  condemn,  who  can  deny  that  to  every  pur- 
pose of  hostile  mischief  against  the  commerce  of  England,  Bergen  will 
differ  from  Dunkirk,  m  no  other  respect  than  this,  that  it  is  a  port  of 
the  enemy  to  a  much  greater  extent  of  practical  mischief.  To  make 
the  ports  of  Norway  the  seats  of  the  French  tribunals  of  war,  is  to 
make  the  adjacent  sea  the  theatre  of  French  hostility. 

It  gives  one  belligerent  the  unfair  advantage  of  a  new  station  of 
war,  which  does  not  properly  belong  to  him ;  and  it  gives  to  the  other 
the  unfair  disadvantage  of  an  active  enemy  in  a  quarter  where  no 
enemy  would  naturally  be  found.  The  coasts  of  Norway  could  no 
longer  be  approached  by  the  British  merchant  with  safety,  and  a  sus- 
pension of  commerce  would  soon  be  followed  by  a  suspension  of  amity. 

Wisely,  therefore,  did  the  American  Government  defeat  a  similar 
attempt  made  on  them,  at  an  earlier  period  of  the  war.  They  knew  that 
to  permit  such  an  exercise  of  the  rights  of  war,  within  their  cities, 
would  be  to  make  their  coasts  a  station  of  hostility.^' 

Whether  the  government  of  Denmark  has  shown  equal  vigilance  in 
observing,  or  equal  indignation  in  repelling  the  attempt,  is  more  than 
I  am  warranted  to  assert.  But  though  the  publicity  of  the  transaction 
in  the  town  of  Bergen  may  subject  the  police  of  that  place  to  some 
degree  of  observation,  I  see  nothing  in  the  papers  which  issue  immedi- 
ately from  the  royal  authority  that  at  all  afifects  the  government  itself 
with  the  knowledge  and  approbation  of  the  fact;  and  indeed  it  would 
be  indecent  to  suppose  that  a  country,  standing  upon  the  footing  of 
ancient  and  friendly  alliance  to  this  country,  could  have  given  its 
sanction  to  a  measure  so  full  of  hostility  to  its  friend,  and  of  possi- 
ble inconvenience  to  itself.  I  must,  therefore,  deem  the  act  of  this 
French  consul  a  licentious  attempt  to  exercise  the  rights  of  war  within 
the  bosom  of  a  neutral  country,  where  no  such  exercise  has  ever  been 
authorized. 

I  am  of  opinion,  upon  the  whole,  that  this  ship  must  be  restored 
to  the  British  owners  upon  the  usual  salvage.     *     *     * 

17  The  incident  referred  to  was  the  attempt  in  1793  of  the  French  minister, 
Citizen  Genet,  to  offer  commissions  to  citizens  of  the  United  States  to  cruise 
in  the  service  of  France  against  Great  Britain,  to  fit  out  privateers,  to  set 
up  French  consular  prize  courts,  so  that  prizes  brought  in  could  be  condemned 
in  American  ports,  and  otherwise  to  employ  the  territory  of  this  country  for 
belligerent  purposes.  5  Moore,  Int.  Arb.  4404-i411;  H.  Taylor,  A  Treatise  on 
International  Public  Law,  §  608.    See,  also,  HaU,  Int.  Law,  §  213. 

Scorr  Int.Law 


Ch.  18)  ADJUDICATION  OP  PRIZB  1075 

ODDY  V.  BOVILL. 

(King's  Bench,  1802.    2  East,  473.) 

In  the  war  between  Great  Britain  and  France,  Spain  was  in  1799 
an  ally  of  the  latter  power.  A  prize  was  taken  by  a  French  privateer, 
carried  into  a  port  of  Spain,  and  condemned  as  enemy's  property  by  a 
French  court  sitting  in  Spain.^* 

Lawrence,  J.  The  question  is,  Whether  this  sentence  of  condemna- 
tion be  conclusive  evidence  that  the  property  insured  was  British,  and 
consequently,  that  the  warranty  of  its  being  neutral  was  not  complied 
with?  The  argument  was  attempted  to  be  carried  into  a  wider  field 
than  we  think  it  fit  now  to  enter  into,  since  the  case  of  Hughes  v. 
Cornelius,  T.  Ray.  473,  Skin.  59,  and  2  Show.  232,  and  a  long  string 
of  authorities  which  have  followed  that  decision.  We  must  now 
therefore  take  it  for  granted,  that  if  this  sentence  were  given  by  a 
court  of  competent  jurisdiction,  it  is  conclusive  upon  the  point  then 
in  judgment,  namely,  against  the  neutrality  of  the  property.  The  case 
of  The  Flad  Oyen  has  been  made  the  basis  of  the  argument,  to  show, 
that  unless  the  prize  court  were  constituted  according  to  the  law  and 
practice  of  nations,  it  could  have  no  jurisdiction.  If  there  were  no 
other  case  on  the  subject  determined  by  the  same  learned  judge,  to 
explain  how  far  he  meant  to  go  in  that  case,  it  might  be  doubtful, 
from  some  expressions  there  used,  whether  it  did  not  extend  to  a 
case  circumstanced  like  the  present :  but  if  we  look  at  his  other  deci- 
sions on  this  subject,  particularly  in  that  of  the  Christopher,  2  C.  Rob. 
209,  though  I  do  not  mean  to  say  that  it  is  directly  in  point,  it  suffi- 
ciently appears  from  the  reasons  assigned  by  him  in  giving  judgment, 
to  what  extent  he  meant  the  doctrine  laid  down  by  him  in  The  Flad 
Oyen  case  should  be  understood;  and  that  he  did  not  intend  to  deny 
the  legality  of  such  sentences  of  condemnation  by  the  captors  in  the 
country  of  a  co-belligerent  or  ally  in  the  war ;  because,  as  he  observes, 
there  is  a  common  interest  between  such  on  the  subject,  and  both  gov- 
ernments may  be  presumed  to  authorize  any  measures  conducing  to 
give  effect  to  their  arms,  and  to  consider  each  other's  ports  as  mutually 
subservient.  This  very  question  appears  to  have  arisen  in  several  sub- 
sequent cases,  and  in  the  case  of  The  Betsy  Kruger,  in  August,  1800, 
seems  to  have  been  considered  by  the  advocates  as  so  thoroughly  un- 
derstood and  settled,  that  the  question  of  law  was  waived,  as  one  not 
to  be  discussed ;  and  the  court,  proceeding  on  the  ground  that  the  con- 
demnation was  legal,  directed  further  proof  to  be  made  of  the  fact 
of  the  transfer.  We  find  then  this  question  already  determined  by  a 
court  having  peculiar  jurisdiction  in  cases  of  this  sort,  of  which  we 
have  only  incidental  jurisdiction.  That  determination  therefore  is  as 
conclusive  on  us,  as  to  the  proper  rule  of  decision,  as  a  judgment  of 

18  Short  statement  substituted  for  that  of  original  report. 


1076  RIGHTS   AND   DUTIES   OF  NATIONS   IN  TIME   OF  WAR         (Part  3 

the  common  law  courts  on  a  question  of  real  property  would  be  on  the 
civil  law  courts. 

Ls  BivANc,  J.  The  subsequent  cases  referred  to  are  explanatory  of 
the  opinion  delivered  by  Sir  W.  Scott  in  the  case  of  The  Flad  Oyen, 
and  show  that  he  considered  that  there  was  a  material  distinction  be- 
tween a  sentence  of  condemnation,  pronounced  by  the  authority  of 
the  capturing  country  in  the  state  of  a  co-belligerent,  and  one  so  pro- 
nounced in  a  neutral  country.  Now  this  is  the  case  of  a  sentence  of 
condemnation  in  the  country  of  a  belligerent  power,  an  ally  of  the 
captors,  and  is  exactly  like  the  cases  of  The  Harmony,  2  Rob.  210,  note, 
The  Adelaide,  Id.,  and  The  Betsy  Kruger,  Id.  The  first  was  a  con- 
demnation by  the  French  commissary  of  marine  at  Rotterdam,  of  a 
British  prize  taken  and  carried  into  Helvoetsluys,  which  was  in  the 
country  of  a  belligerent  ally ;  which  was  so  far  considered  as  different 
from  the  case  of  such  a  court  sitting  in  a  neutral  country,  that  the  neu- 
tral claimant  was  directed  to  go  into  proof  of  the  merits  as  to  the  trans- 
fer, reserving  the  question  of  law.  And  in  the  last-mentioned  case 
of  the  Betsy  Kruger,  the  point  was  considered  to  be  so  settled,  that 
the  advocates  waived  the  discussion  of  it,  and  the  court  considered  the 
condemnation  as  legal.  That  I  consider  as  a  case  directly  in  point,  to 
support  the  legality  of  a  condemnation  in  the  country  of  a  belligerent 
ally.  This  court  therefore  must  decide  the  question  consistently  with 
the  opinion  of  a  court  of  peculiar  jurisdiction  on  the  same  point,  un- 
til we  are  told  by  a  superior  tribunal  that  that  determination  was  im- 
proper. 

Judgment  of  nonsuit. 


DAGLEISH  V.  HODGSON. 
(Court  of  Common  Pleas,  1831.    5  Moo.  &  P.  407.) 

Lord  Chief  Justice  Tindal  now  delivered  the  judgment  of  the  court 
as  follows :  ^^ 

The  principal  question  in  this  case  is,  whether  tlie  sentence  of  con- 
demnation of  the  brig  George,  and  her  cargo,  in  the  Prize  Court  at 
Monte  Video,  dated  the  13th  of  December,  1826,  is  to  be  received  in 
our  courts  as  conclusive  evidence  of  the  fact,  that  the  ship  was  cap- 
tured in  attempting  to  break  the  blockade  of  Buenos  Ayres?  For,  if 
that  is  to  be  taken  as  a  fact  conclusively  proved,  then  the  plaintiffs  in 
this  action  are  in  no  condition  to  recover ;  not  upon  the  count  for  cap- 
ture and  detention,  because  such  capture  was  occasioned  by  the  volun- 
tary act  of  the  master,  in  violation  of  the  law  of  nations ;  nor  upon  the 
count  for  barratry,  because  it  appears  upon  the  whole  evidence,  that 
the  master,  supposing  him  to  have  broken  the  blockade,  acted  honestly 
and  bona  fide;   his  conduct  being  attributable  rather  to  ignorance,  or 

19  Statement  of  the  case  omitted  as  the  judgment  siiffieiently  states  the 
facts. 


Ch.  18)  ADJUDICATION   OF   PRIZE  1077 

want  of  caution,  than  to  such  fraudulent  design  as  is  necessary  to 
constitute  the  crime  of  barratry. 

The  general  law  upon  this  subject  is  well  known,  that  the  sentence 
of  a  foreign  Court  of  Admiralty,  of  competent  jurisdiction,  is  binding 
upon  all  parties,  and  in  all  countries,  as  to  the  fact  upon  which  the 
condemnation  proceeded,  where  such  fact  appears  on  the  face  of  the 
sentence,  free  from  doubt  and  ambiguity.  But  it  is,  at  the  same  time, 
as  well  established,  that,  in  order  to  conclude  the  parties  from  contest- 
ing the  ground  of  condemnation  in  an  English  court  of  law,  such  ground 
must  appear  clearly  upon  the  face  of  the  sentence;  it  must  not  be 
collected  by  inference  only,  or  left  in  uncertainty,  whether  the  ship 
was  condemned  upon  one  ground,  which  would  be  a  just  ground  of 
condemnation  by  the  law  of  nations,  or  on  another  ground,  which 
would  amount  only  to  a  breach  of  the  municipal  regulations  of  the 
condemning  country.  The  cases  of  Fisher  v.  Ogle,  1  Camp.  418,  and 
Calvert  v.  Bovill,  7  Term  Rep.  523,  are  express  authorities  to  this  point : 
and  the  sentence  of  condemnation  in  the  latter  case  bears  a  strong 
resemblance  to  that  in  the  present.  There,  Lord  Chief  Justice  Kenyon 
said:  "If,  indeed,  that  court  had  stated  in  their  sentence,  that  they 
condemned  the  goods,  because  they  were  British  property, 'I  should 
have  considered  myself  bound  by  their  sentence;  but  they  have  as- 
signed other  reasons  for  their  adjudication.  The  express  grounds 
of  the  sentence  of  condemnation  are,  that  the  ship  was  destined  for 
one  of  the  West  India  Islands ;  that  she  was  hired  and  loaded  at  Lon- 
don, and  had  a  certain  quantity  of  gunpowder  on  board:  therefore 
they  condemned  her  and  her  cargo  as  good  prize."  The  sentence  in 
that  case  was :  "Forasmuch  as  the  true  destination  of  the  said  vessel 
was  for  the  English  islands,  having  been  hired  and  loaded  at  London, 
and  that  there  has  been  found  on  board  her  eighty  barrels  of  gun- 
powder, the  court  declares  the  said  brig  to  be  a  good  prize  for  the 
benefit  of  the  captors." 

Now,  looking  at  the  adjudicatory  part  of  this  sentence,  which  is  the 
important  part  for  the  discovery  of  the  precise  ground  of  condemnation, 
it  is  in  these  terms,  viz. :  "From  all  which,  and  from  what  the  docu- 
ments state,  I  judge  the  said  brig  George  and  her  cargo  to  be  good  and 
lawful  prize  to  the  capturers." 

The  words  "from  all  which"  refer  us  back  to  the  premises,  to  dis- 
cover the  grounds  of  the  sentence;  and,  in  these  premises,  we  find 
enumerated  three  distinct  statements:  First,  "that  it  plainly  appears 
from  all  the  documents,  that  the  brig  sailed  from  Liverpool  knowing 
of  the  blockade,  and  which  the  captured  do  not  even  deny,  nor  that  her 
destination  was  Buenos  Ayres,  at  a  short  distance  from  which  she  was 
taken ;  secondly,  that,  for  the  reason  last  given,  she  ought  to  be  con- 
sidered as  violating  the  blockade ;  thirdly,  that  the  ship  had  not  even 
the  plausible  excuse  of  coming  to  Monte  Video  first,  and  thereby  com- 
plying with  the  published  instructions."  Now,  upon  referring  to  these 
premises,  we  think  we  cannot  safely  infer  that  the  precise  ground  of 


1078  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

condemnation  was  the  attempt  to  break  the  blockade.  The  first  state- 
ment refers  to  the  illegaHty  of  the  ship's  destination  from  Liverpool 
to  Buenos  Ayres,  then  being  under  blockade.  It  is  impossible  to  say 
with  certainty  that  the  sentence  may  not  have  proceeded  on  that  ground, 
in  part,  if  not  altogether.  It  is  more  than  probable  it  did  so ;  for,  in 
another  part  of  the  premises,  the  judge  reverts  to  this  statement  in 
these  terms :  "Forasmuch  as  besides  not  doing  away  the  proof  that 
Buenos  Ayres  was  the  first  port  the  shipment  was  destined  for,  in  it- 
self criminal."  But,  if  this  was  the  ground  on  which  the  sentence  pro- 
ceeded in  the  first  place,  it  is  no  ground  for  condemnation  by  the  law 
of  nations,  unless  there  was  an  intention  to  violate  the  blockade ;  and, 
in  the  next  place,  the  sentence  leaves  untouched  the  question  of  fact, 
whether  the  blockade  was  broken,  or  attempted  to  be  evaded.  If  it 
formed  an  ingredient  in  the  judgment  of  the  Brazilian  Court  of  Ad- 
miralty, no  one  can  say  how  much  it  weighed  with  them,  or  that,  if 
this  ground  of  condemnation  had  been  out  of  the  case,  the  court  in- 
tended to  rely  on  the  fact  of  the  blockade  being  broken  as  their  ground 
of  adjudication.  Again,  in  the  latter  part  of  the  preamble  to  the 
sentence,  the  judge  refers  to  a  non-compliance  with  published  instruc- 
tions, as  a  charge  against  the  master  of  the  ship.  What  these  instruc- 
tions are,  does  not  appear ;  whether  some  regulations  ordained  by  their 
own  authority  or  not,  is  uncertain.  But,  if  this,  which  is  no  ground  of 
condemnation'  by  the  general  law  of  nations  (Mayne  v.  Walter,  E.  T. 
22  Geo.  Ill;  Park  on  Insur.  [6th  Ed.]  474),  operated  on  the  mind  of 
the  foreign  judge  to  condemn  the  ship  and  cargo,  there  is  an  end  again 
to  the  conclusive  finding  of  the  fact,  that  the  ship  violated  the  blockade 
of  Buenos  Ayres. 

Still  further,  the  terms  in  which  the  fact  of  the  violation  of  the 
blockade  is  adverted  to  in  the  preamble  of  the  sentence,  are  far  from 
direct  and  declaratory,  but  afiford,  at  most,  an  inference  that  the  judge 
felt  himself  warranted  in  drawing  such  a  conclusion.  "For  this  rea- 
son," says  the  judge,  "she  ought  to  be  considered  as  violating  the  block- 
ade, and  which  she  would  have  effected  but  for  the  diligence  of  the 
captors." 

Under  a  sentence,  therefore,  expressed  with  so  much  doubt  and  am- 
biguity as  to  the  real  ground  on  which  it  proceeded,  we  hold  our- 
selves at  liberty  to  determine,  whether,  upon  the  evidence  given  at  the 
trial,  such  violation  of  the  blockade  did  in  fact  take  place  or  not;  and, 
upon  that  question,  we  are  satisfied  on  the  evidence,  that  the  captain  did 
not  break,  nor  did  he  intend  to  break  the  blockade,  but  that  he  honestly 
intended  to  obtain  instructions  from  the  blockading  squadron,  not  hav- 
ing been  before  warned  ofif  by  any  of  the  Brazilian  cruisers. 

The  only  remaining  objection  that  has  been  insisted  on  against  the 
plaintiffs'  right  to  recover  is,  that  the  voyage  in  question  was  an  illegal 
voyage  in  its  commencement,  because  the  ship  was  destined  to  a  port 
which  was  notified  to  be  under  blockade.  But  that  this  was  not  an 
illegal  voyage  was  determined  so  lately  by  the  Court  of  King's  Bench 


Ch.  18)  ADJUDICATION   OF   PRIZE  1079 

(Naylor  v.  Taylor,  9  Barn.  &  Cress.  718;  s.  c,  4  Man.  &  Ry.  526),  upon 
a  voyage  described  in  the  policy  in  the  very  same  terms  as  the  present, 
and  under  circumstances  so  precisely  similar,  that  it  is  unnecessary 
for  us  to  say  more,  than  that  we  entirely  concur  with  the  judgment 
there  given,  founded,  as  it  is,  upon  the  authority  of  Lord  Stowell's 
judgment  in  the  case  of  The  Shepherdess,  5  Rob.  Adm.  262. 

We  therefore  think  the  verdict  should  stand,  and  that  judgment 
should  be  entered  for  the  plaintiffs. 

Judgment  for  the  plaintiffs. 


GUSHING  v.  UNITED  STATES. 

(Court  of  Claims  of  the  United  States,  1886.    22  Ct.  CI.  1.) 

Davis,  J.,  delivered  the  opinion  of  the  court. ^®     *     *     * 

The  jurisdictional  act  requires  us  to  inquire  into  illegal  condemna- 
tions, and  it  is  urged  on  behalf  of  the  defendants  that  all  condemna- 
tions by  the  French  courts  are  final  and  conclusive  upon  this  court  if 
the  French  court  had  jurisdiction.  Many  citations  are  made  in  sup- 
port of  this  contention,  among  them  the  case  of  Baring  and  Others 
V.  The  Royal  Exchange  Assurance  Gompany,  5  East,  99  et  seq.,  which 
may  be  taken  as  a  fair  illustration. 

The  American  ship  Rosanna,  insured  by  the  defendants,  was  cap- 
tured and  condemned  by  the  French,  whereupon  plaintiffs  sued  on 
the  policy  and  recovered.  Lord  Ellenborough,  C.  J.,  interrupting  the 
argument,  said : 

"Does  not  this  [French]  sentence  of  condemnation  proceed  specifi- 
cally on  the  ground  of  infraction  of  treaty  between  America  and 
France  in  the  ship  not  having  those  documents  with  which  in  the  judg- 
ment of  the  French  court  the  American  was  bound  by  treaty  to  be 
provided?  I  do  not  say  that  they  have  construed  the  treaty  rightly; 
on  the  contrary,  suppose  them  to  have  construed  it  ever  so  iniquitously ; 
yet,  having  competent  jurisdiction  to  construe  the  treaty,  and  hav- 
ing professed  to  do  so,  we  [the  court]  are  bound  by  that  comity  of  na- 
tions which  has  always  prevailed  amongst  civilized  states  to  give  cred- 
it to  their  adjudication  where  the  same  question  arises  here  upon  which 
the  foreign  court  has  decided.  After  arguing  for  hours,  we  must 
come  to  the  same  conclusion  at  last,  that  the  French  court  has  spe- 
cifically condemned  the  vessel  for  an  infraction  of  treaty  which  nega- 

■2  0  The  facts  of  the  case  are  omitted,  and  only  part  of  the  opinion  is  given 
relating  to  decisions  of  prize  courts.  In  this  counection  reference  should  be 
mado  to  the  elaborate  and  closely  reasoned  opinion  on  the  finality  of  judg- 
ments of  prize  courts,  delivered  by  the  celebrated  William  Pinkney,  Com- 
missioi/9r,  in  The  Betsey.  3  Moore,  Int.  Arb.  3180-.3206  (1797).  Mr.  Wheaton 
pronounced  Pinkncy's  opinions  (delivered  while  a  meml)er  of  the  Board  of 
Commissioners  under  article  VII  of  Jay's  Treaty,  November  19,  1794)  "finished 
models  of  judicial  eloquence,  uniting  powerful  and  comprehensive  argument 
with  a  copious,  pure,  and  energetic  diction." 


L080  RIGHTS  AND  DUTIES  OF  NATIONS  IN  TIME  OF  WAR         (Part  3 

tives  the  warranty  of  neutrality.  Then,  having  distinctly  adjudged 
the  vessel  to  be  good  prize  upon  a  ground  within  their  jurisdiction, 
unless  we  deny  their  jurisdiction,  we  are  bound  to  abide  by  that 
judgment.  Whenever  a  case  occurs  of  a  condemnation  by  a  foreign 
court  on  the  ground  of  ex  parte  ordinances  only,  without  drawing 
inferences  from  them  to  show  an  infraction  of  treaty  between  the  na- 
tion of  the  captors  and  captured,  and  referring  the  judgment  of  the 
court  to  the  breach  of  treaty,  I  shall  be  glad  to  hear  the  case  argued, 
whether  such  ordinances  are  to  be  considered  as  furnishing  rules 
of  presumption  only  against  the  neutrality,  or  as  positive  laws  in 
themselves,  binding  other  nations  proprio  vigore." 

The  decision  of  the  English  court,  then,  goes  to  this  extent,  that  in 
an  action  between  individuals  the  decree  of  the  French  court  which 
had  jurisdiction  is  final;  so  would  it  also  be  final  as  to  the  vessel,  and 
the  purchaser  at  the  confiscation  sale  could  rest  upon  the  decree  as 
good  title  against  all  the  world. 

But  all  this  does  not  affect  the  position  of  the  United  States  govern- 
ment against  the  government  of  France. 

Lord  Ellenborough  says  that  no  matter  how  iniquitous  the  con- 
struction given  the  treaty  by  the  French  court,  he,  as  a  judge,  is  bound 
to  follow  it.  But  so  is  not  the  government  of  the  United  States. 
That  government  could  have  objected  either  that  the  court  was  cor- 
rupt, or  that  there  existed  no  treaty,  or  that  there  had  been  manifest 
error  in  construing  it.  All  such  questions  may  be  outside  the  right 
of  a  court  to  consider,  but  they  are  within  the  right  and  form  part 
of  the  duty  of  the  political  branch  of  the  government.  If  the  French 
court,  acting  within  its  jurisdiction,  construed  the  treaty  iniquitously, 
the  courts  might  not  have  power  to  remedy  the  wrong,  but  the  owner 
had  a  right  to  appeal  to  his  government  for  redress,  and  that  govern- 
ment, when  convinced  of  the  justice  of  his  complaint,  was  bound  to  en- 
deavor to  redress  it. 

The  decree  is  an  estoppel  on  the  courts,  but  it  is  no  estoppel  on  the 
government;  in  fact,  the  right  to  diplomatic  interference  arises  only 
after  the  decree  is  rendered.  Of  course,  precedents  for  cases  of  this 
kind  are  not  to  be  found  in  the  reports  of  courts,  for  no  such  case  can, 
in  the  nature  of  things,  come  before  a  court  unless  by  virtue  of  a 
special  and  peculiar  statute,  such  as  that  under  which  we  now  act; 
but  diplomatic  history  is  full  of  them. 

Rutherforth  (Institutes,  vol.  II,  c.  9,  p.  19),  speaking  of  the  right 
of  a  state  to  proceed  in  prize,  says : 

"This  right  of  the  state  to  which  the  captors  belong  to  judge  ex- 
clusively is  not  a  complete  jurisdiction.  The  captors,  who  are  its  own 
members,  are  bound  to  submit  to  its  sentence,  though  this  sentence 
should  happen  to  be  erroneous,  because  it  has  a  complete  jurisdiction 
over  their  persons.  But  the  other  parties  in  the  controversy,  as  they 
are  members  of  another  state,  are  only  bound  to  submit  to  its  sen- 
tence as  far  as  this  sentence  is  agreeable  to  the  law  of  nations,  or  to 


Ch.  18)  ADJUDICATION   OP  PRIZE  1081 

particular  treaties,  because  it  has  no  jurisdiction  over  them  in  respect 
either  of  their  persons  or  of  the  things  that  are  the  subject  of  the 
controversy.  If  justice,  therefore,  is  not  done  them,  they  may  apply 
to  their  own  state  for  a  remedy;  which  may,  consistently  with  the 
law  of  nations,  give  them  a  remedy  either  by  solemn  war  or  by  repris- 
als. See  Dana's  Wheaton,  391."  This  brings  us  naturally  to  another 
point,  admitted  as  a  general  principle,  that  appeal  should  be  prosecuted 
to  the  court  of  last  resort  before  there  can  be  diplomatic  intervention. 

The  exceedingly  able  British-American  commission  which  sat  in 
Washington  in  1872  not  only  unanimously  decided  that  they  had 
jurisdiction  in  prize  cases  in  which  the  decision  of  the  ultimate  ap- 
pellate tribunal  of  the  United  States  had  been  had,  a  conclusion  in 
which  even  the  agent  of  the  United  States  concurred,  but  also  that 
they  had  jurisdiction  when  the  claimant  had  not  pursued  his  remedy 
to  the  court  of  last  resort,  provided  satisfactory  reasons  were  given  for 
the  failure  to  appeal.  Papers  relating  to  the  Treaty  of  Washington, 
vol.  VI,  pp.  88-90.  To  this  last  conclusion  the  American  commissioner 
dissented ;  but  even  he  held  that  a  misfeasance  or  default  of  the  cap- 
turing government,  by  which  means  an  appeal  was  prevented,  was  suf- 
ficient to  excuse  the  failure  to  appeal.    Id.  92. 

The  rights  of  the  prize  courts  are  the  rights  of  the  capturing  state. 
These  courts  are  its  agents,  deputed  by  it  to  examine  into  the  con- 
duct of  its  own  subjects  before  becoming  answerable  for  what  they 
have  done,  and  the  right  ends  when  their  conduct  has  been  thoroughly 
examined.  Therefore  the  state  has  a  right  to  require  that  the  captor's 
acts  be  examined  in  all  the  ways  which  it  has  appointed  for  this  pur- 
pose, and  on  this  principle  is  founded  the  doctrine  that  the  complain- 
ant, unless  he  exhaust  his  appeal,  shall  be  held  to  confess  the  justice 
of  the  decision.  This  pre-siipposes,  first,  that  there  are  appellate 
courts ;  second,  that  they  are  open  to  the  complainant  freely  and 
honestly.  The  captor  has  no  right  to  insist  for  his  own  protection 
upon  the  fulfillment  of  a  form  which  he  by  his  own  acts  prevents. 

There  is  also  a  distinction,  not  often  clearly  drawn,  between  the 
validity  of  a  claim  per  se  and  the  right  to  enforcement.  The  justice  of 
the  claim  is  founded  upon  the  injustice  of  the  sentence.  The  appeal 
does  not  affect  the  merits  of  the  claim ;  it  does  not  palliate  or  destroy 
any  wrong  done;  but  it  is  simply  a  course  provided  for  the  captor's 
protection  that  he  may  fully  examine  into  the  acts  of  his  own  agents, 
through  his  other  agents,  the  courts. 

"The  whole  proceeding,  from  the  capture  to  the  condemnation,  is  a 
compulsory  proceeding  in  invitum  by  the  state  in  its  political  capacity, 
in  the  exercise  of  war  powers,  for  which  it  is  responsible,  as  a  body 
politic,  to  the  state  of  which  the  owner  of  the  property  is  a  citizen." 
Dana's  Wheaton,  note  186. 

Therefore  the  capturing  state  may  waive  such  a  demand,  and  not 
insist  upon  exhausting  its  right  to  further  investigation,  and  may 
waive  it  by  failing  to  provide  an  appellate  tribunal,  or  by  preventing 


1082  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

recourse  to  it,  or  in  any  other  way  which  shows  an  intention  not  to  in- 
sist upon  this  right  of  examination;  but  appeal  or  no  appeal,  the 
validity  of  the  claim  is  founded  upon  the  injustice  to  the  claimants. 

All  writers  lay  down  the  principle  that  appeal  should  be  taken  from 
the  inferior  to  the  superior  tribunal  before  resort  by  the  injured  gov- 
ernment to  measures  of  redress ;  but  this  principle  is  always  coupled 
with  the  extreme  measures  of  war  and  reprisals  (see  Rutherforth, 
supra;  Grotius,  bk.  Ill,  c.  2,  §§  4,  5),  and  there  is  no  assertion  in  the 
writers  that  illegal  capture  necessarily  does  not  found  an  international 
claim,  even  when  appeal  has  not  been  taken. ^^     *     *     * 

21  In  Wheelwright  v.  Depeyster.  1  Johns.  (N.  Y.)  471,  47.3,  474,  482,  485,  486, 
3  Am.  Dec.  345  (1806),  the  court  had  occasion  to  consider  the  nature  and  ef- 
fect of  prize  decisions  rendered  in  foreign  countries.  Chief  Justice  Kent  de- 
livered a  long  and  careful  opinion  which  is  summarized  in  the  following  ex- 
tract from  the  headnote: 

"Belligerents  cannot  establish  prize  courts  in  a  neutral  country ;  nor  can 
they  make  any  sale  of  their  prizes  there,  unless  authorized  by  treaty.  The 
property  in  goods  captured  cannot  be  transferred  so  as  to  divest  the  right  of 
the  original  owner,  unless  by  a  sentence  of  condemnation  by  a  court  of  com- 
petent jurisdiction.  The  court  of  the  sovereign  of  the  captor  is  the  only 
competent  tribunal  to  decide  on  the  validity  of  captures.  Prize  courts  proceed 
in  rem,  and  cannot  adjudicate  on  a  prize  lying  in  a  foreign  port,  or  out  of  the 
jurisdiction  of  the  captor  or  his  ally.  Page  v.  Lennox,  15  Johns.  (N.  Y.)  172 
(1818);  Hudson  v.  Guestier,  4  Cranch,  293,  2  L.  Ed.  625  (1808),  6  Cranch,  281, 
3  L.  Ed.  224  (1810).  Courts  of  common  law,  though  they  cannot  inquire  into 
the  direct  question  of  prize,  may,  in  a  question  of  property,  decide  whether 
the  condemnation  or  sale  has  been  made  by  a  court  of  competent  authority. 
See  Rose  v.  Himely,  4  Cranch,  241,  2  L.  Ed.  608  (1808)." 

This  learned  and  admittedly  competent  judge  said  in  the  course  of  his 
opinion : 

"It  is  requisite  that  a  sentence  of  condemnation  be  given  by  a  court  of 
the  sovereign  of  the  captor,  before  a  title  to  the  prize  can  be  transferred.  See 
[The  Nostra  de  Conceicas]  5  C.  Rob.  Adm.  Rep.  294  (1804) ;  The  Falcon,  6  Rob. 
Adm.  Rep.  194-198  (1805) ;  [Booth  et  al.  v.  Schooner  L'Esperanza]  1  Bee's  Adm. 
Rep.  92,  93,  Fed.  Cas.  No.  1,647;  [Sasportas  v.  Jennings  and  Woodrop]  1  Bay 
(S.  C.)  478  (1795).  This  excellent  rule  has  been  long  known  and  established 
in  the  English  admiralty,  as  appears  by  the  case  of  Terremoulin  v.  Sandys, 
Carth.  423,  12  Mod.  143  (1697),  and  it  seems  now  to  be  equally  recognized  on 
the  continent  as  part  of  the  law  and  practice  of  nations.  The  case  of  The 
Flad  Oyen,  1  Rob.  135  (1799),  and  of  The  Henrick  &  Maria,  4  Rob.  43  (1799); 
Heinec.  de  nav.  ob.  vet.  mer.  veh.  comm.  sec.  16 ;  Azuni's  Maritime  Law,  vol. 
2,  p.  242.  Our  own  government,  also,  adopted  the  rule  during  the  Revolution- 
ary War,  and  bound  itself  to  observe  it.     *     *     * 

"We  are  not  to  examine  into  the  validity  of  the  capture,  but  we  must  look 
so  far  as  to  see  whether  the  condemnation  was  by  a  tribunal  competent  to 
pronounce  it  in  the  given  case ;  and  if  that  is  once  ascertained,  I  agree  that 
we  must  admit  the  defense  to  be  conclusive.  See  [Rose  v.  Himely]  4  Cranch, 
241.  2  L.  Ed.  60S  (1808),  s.  p.  In  the  case  of  Oddy  v.  Bovill,  2  East,  473  (1802), 
a  similar  question  arose,  as  to  the  legality  of  a  French  prize  court  sitting  in 
Spain,  and  no  objection  was  raised  as  to  the  competency  of  the  Court  of  King's 
Bench  to  sustain  the  inquiry ;  and  in  the  case  of  Havelock  v.  Rockwood  [8 
Term  Rep.  268  (1799)],  the  same  court  did  not  hesitate  to  declare,  that  the 
French  Court  of  Admiralty  at  Bergen  was  illegal.     *     *     * 

"I  cannot  entertain  a  doubt  but  that  we  have  authority  to  inquire,  and  are 
bound  to  say,  whether  the  foreign  court  was,  by  the  law  of  nations,  competent 
to  pass  the  sentence  in  question,  and.  having  determined  that  it  was  not, 
that  such  sentence  cannot  avail  in  the  present  case." 


Ch.  IS)  ADJUDICATION   OF   PRIZE  1083 

THE  BRUSSELS.22 
(Prize  Court  of  Belgium,  1919.    Moniteur  Beige,  November  6,  1919,  5894.) 
See  ante,  p.  717 ,  for  a  report  of  the  case. 


SECTION  4.— FREIGHT;  LIENS. 


THE  VROW  HENRICA. 
(High  Court  of  Admiralty,  1803.    4  C.  Rob.  343.) 

This  was  a  case  of  a  Danish  vessel  taken  on  a  voyage  from  Valencia 
to  London.  The  ship  had  been  restored  with  freight  to  be  a  charge  on 
the  cargo,  which  was  condemned,  but  the  proceeds  not  being  sufficient 
to  pay  the  freight  and  the  expenses  of  the  captor,  it  was  prayed,  on 
the  part  of  the  neutral  ship,  that  the  priority  of  payment  might  be 
given  to  freight,  on  the  authority  of  The  Bremen  Flugge,  4  C.  Rob. 
Adm.  Rep.  90.     *     *     * 

The  court  expressed  itself  disposed  to  hold  the  rule  laid  down  in 
The  Bremen  Flugge  to  be  the  proper  rule ;  but  as  the  matter  had  been 
again  argued,  it  directed  the  cases  cited  to  be  looked  into,  and  reserved 
the  judgment  for  farther  deliberation. 

Sir  W.  Scott.  I  have  considered  the  cases  which  I  directed  to  be 
looked  up,  and  I  see  no  reason  to  alter  the  opinion  which  I  before 
expressed,  that  freight  is,  in  all  ordinary  cases,  a  lien  which  is  to  take 
place  of  all  others.  The  captor  takes  cum  onere.  It  is  the  allowed 
privilege  of  neutral  trade  to  carry  the  property  of  the  enemy,  subject 
to  its  capture,  and  to  the  temporary  detention  of  his  vessel ;  and  if 
the  party  does  not  prevaricate,  or  conduct  himself  in  any  respect  with 
ill  faith,  he  is  entitled  to  his  freight.  This  is  the  rule  which  I  am 
disposed  to  apply  in  all  cases  of  neutral  ships  carr}'ing  on  their  ordi- 
nary commerce.     It  is  the  general  rule,  which  may,  nevertheless,  be 

•2  2  In  the  course  of  the  decision  in  the  principal  case  reference  is  made  to 
The  Midsland,  Moniteur  Beige,  October  25,  1919,  5699  (1919) ,  and  The  Gelder- 
land,  Id.,  October  30,  1919,  5772  (1919),  translation,  16  American  Journal  of 
International  Law,  p.  129. 

The  headnote  prefixed  to  The  Midsland,  as  ropoiled  in  Revue  de  Droit  In- 
ternational et  de  Legislation  Comparee  (3d  s6r.)  T.  I,  119  (1920),  states  the 
case  sufficiently  for  present  purposes  : 

"The  condemnation  of  a  neutral  vessel  pronounced  by  the  Prize  Court  of  a 
belligerent  may  form  the  basis  for  new  rights  to  the  advantage  of  the  oppos- 
ing belligerent  who  in  his  turn  captures  this  vessel.  In  this  case  there  exists 
on  the  part  of  the  captor  state  no  obligation  to  restore  the  vessel  to  its  original 
proprietor  when,  as  a  result  of  its  adjudication  by  an  enemy  Prize  Court,  it 
has  definitively  become  enemy  property.  This  is  especially  the  case  when,  as 
a  result  of  this  adjudication,  the  vessel  has  been  detained  for  a  long  time  by 
the  enemy  authorities,  and  used  by  them  for  operations  of  war." 


1084  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OP   WAR         (Part  3 

liable  to  be  altered  by  circumstances.  There  is  one  class  of  cases  to 
which  I  think  it  ought  not  to  be  applied ;  I  mean  the  case  of  ships,  car- 
rying on  a  trade  between  ports  of  allied  enemies ;  a  trade  which  may 
be  said  to  arise  in  a  great  measure  out  of  the  circumstances  of  the 
war,  though  not  altogether;  I  say  not  altogether,  because  such  a 
trade  exists  in  a  limited  degree  in  times  of  peace. 

In  such  a  course  of  trade,  although  the  court  has  not  altogether  re- 
fused freight  to  the  neutral  ship,  yet  it  may  not  think  it  unreasonable, 
that  the  captor  should,  in  preference,  be  entitled  to  his  expenses,  in- 
asmuch as  the  nature  of  such  a  trade  cannot  but  very  much  influence 
the  judgment  which  he  must  unavoidably  form  of  his  duty  to  bring- 
in  th^  cargo  for  adjudication.  In  the  present  case,  the  voyage  is  not 
between  the  ports  of  allied  enemies,  but  between  the  ports  of  two  bel- 
ligerents, from  Valencia  to  London.  That  constitutes,  I  think,  a  sort 
of  middle  case,  with  respect  to  the  obligation  by  which  the  captor  might 
conceive  himself  bound  to  bring  the  cargo  to  adjudication.  There 
might  be  a  presumption,  undoubtedly,  that  the  property  belonged  to  the 
enemy  exporter.  But  there  is  a  foundation,  also,  for  presuming  that 
it  might  belong  to  the  consignee,  and  that  it  would  not  have  been  sent 
on  a  destination  to  this  country,  but  under  the  protection  of  a  license. 

It  is,  therefore,  a  case  of  a  mixed  nature,  to  which  I  shall  apply  a 
sort  of  a  middle  judgment.  I  will  allow  the  captor  his  law  expenses, 
and  direct  the  other  expenses  to  be  postponed  to  the  payment  of  freight. 


THE  ROLAND. 

(High  Court  of  .Tnstiee,  1915.     1  British  and  Colonial  Prize  Cases,  188.) 

Cause  for  condemnation  of  a  part  cargo  of  tobacco  as  prize. 

Sir  Samuel  Evans  (The  President),  after  dealing  with  several 
parcels  of  the  Roland's  cargo,  in  respect  of  which  no  appearance  had 
been  entered,  and  which  he  accordingly  condemned,  said ;     *     *     * 

Looking  at  the  whole  of  the  transactions  disclosed  by  the  documents 
put  before  me,  I  find  that  the  whole  of  this  property,  fifty  hogsheads 
of  tobacco,  was  bought  by  Rudolf  Hach  &  Co.  for  the  joint  adventure, 
and  that  one-fourth  belongs  to  C.  H.  Suhling  of  Bremen.  The  result, 
therefore,  is  that  one-fourth  part  of  the  fifty  hogsheads  is  enemy  prop- 
erty, and  I  decree  condemnation  of  it  accordingly.  It  follows  also  that 
the  other  three- fourths,  belonging  to  neutrals,  must  be  released  to  them. 

Now  comes  a  further  important  question  which  will  affect  other  cases 
as  well,  namely,  as  to  whether  the  captors  of  the  vessel  are  entitled  as 
against  the  cargo  which  has  been  released — here  three- fourths  of  the 
fifty  hogsheads — to  some  freight. 

The  Crown  claim  to  have  a  lien  for  the  freight  alleged  to  be  payable 
in  respect  of  the  portion  of  the  cargo  released,  and  to  have  it  paid 
before  the  release.    The  argument  on  behalf  of  the  Crown  is  that  the 


Ch.  18)  ADJUDICATION   OF  PRIZE  1085 

shipowners  are,  by  the  German  commercial  law,  entitled  to  some  freight 
in  respect  of  this  released  cargo,  although  it  was  not,  and  cannot  be, 
delivered  in  Germany  at  the  port  of  destination,  and  that  as  captors 
they  are  entitled  to  what  the  ship  has  earned  as  well  as  to  the  ship 
herself.     *     *     * 

Whenever  a  captor  brought  goods  to  the  port  of  actual  destination 
according  to  the  intent  of  the  contracting  parties,  he  was  held  entitled 
to  the  freight,  on  the  ground  that  the  contract  had  been  fulfilled,  but 
in  all  other  cases  he  was  held  not  entitled  to  freight,  although  the 
ship  might  have  performed  a  very  large  part  of  her  intended  voyage. 

The  rule  was  laid  down  in  The  Fortuna  (1802)  4  C.  Rob.  278,  1  Eng. 
P.  C.  392,  and  The  Vrow  Anna  Catharina  (1806)  6  C.  Rob.  269,  1  Eng. 
P.  C.  552,  and  some  exceptions  which  emphasized  the  rule  were  dealt 
with  in  The  Diana  (1803)  5  C.  Rob.  67,  1  Eng.  P.  C.  424,  and  The 
Vrouw  Henrietta  (reported  in  a  note  to  The  Diana  at  page  75,  an.l 
in  1  Eng.  P.  C.  at  page  427). 

I  have  been  asked  to  abandon  this  rule  where,  according  to  the  con- 
tract, it  appears  that  some  freight  might  be  recoverable  where  onl> 
part  of  the  intended  voyage  has  been  covered.  So  far  as  I  know,  the 
rule  has  never  been  departed  from ;  and  in  a  collection  of  cases  pub- 
lished in  America  in  1906  it  is  still  regarded  as  the  rule  of  Interna- 
tional Prize  Law.  See  Scott's  Cases  on  International  Eaw,  pp.  63- 
and  632. 

Evidence  was  given  before  me  as  to  the  German  commercial  law, 
to  the  effect  that  some  freight,  depending  on  distances,  times,  expenses, 
risks,  etc.,  is  recoverable  by  the  shipowner  or  person  entitled  to  the 
freight  in  certain  cases  (captures  as  prize  included)  where  the  whole 
intended  voyage  has  not  been  performed.  I  have  looked  at  a  transla- 
tion of  the  sections  of  the  code  referred  to,  and  it  seems  to  me  that 
many  serious  questions  of  law  might  be  raised  in  an  action  to  recover 
such  freight.  I  was  not  informed,  and  I  do  not  know,  whether  such 
an  action  has  ever  been  brought  in  Germany,  in  cases  where  ships  have 
been  captured — most  probably,  almost  certainly,  not. 

The  principle  which  gave  birth  to  the  rule  referred  to  was  not  wheth- 
er any  and  what  sum  could  be  recovered  at  law  under  the  terms  of 
the  particular  contract  of  affreightment.  The  rule  was  based  on  the 
broad  business  ground  that  the  goods  had  not  been  carried  to  the  place 
where  the  contracting  parties  intended  them  to  be  delivered,  and  dis- 
posed of.     *     *     * 

The  old  rule,  as  stated  above,  must,  in  my  opinion,  still  be  adhered 
to  as  part  of  the  Law  of  .Nations.  This  parcel  of  the  cargo,  namely, 
three-fourths  of  the  fifty  hogsheads,  will  therefore  be  released  to  the 
neutral  owners  without  carrying  the  burden  of  any  freight. 


1086  RIGHTS  AND   DUTIES   OF   NATIONS   IN  TIME   OF   WAR         (Part  3 

THE  ANTONIA  JOHANNA. 
(Supreme  Court  of  the  United  States,  1816.    1  Wheat.  159,  4  L.  Ed.  60.) 

Appeal  from  the  Circuit  Court  for  the  District  of  North  Carolina. 
This  was  the  case  of  a  Russian  ship,  captured  on  the  2d  of  June,  1814, 
by  the  privateer  Herald,  on  a  voyage  from  London  to  St.  Michaels,  and 
brought  into  the  port  of  Wilmington,  N,  C,  for  adjudication.  The  ship 
was  chartered  by  Messrs.  Burnett  &  Co.,  a  mercantile  firm  at  London, 
for  a  voyage  from  London  to  St.  Michaels,  thence  to  Fayal,  thence  to 
St.  Petersburg  or  any  port  in  the  Baltic,  and  thence  to  return  to  London, 
at  the  stipulated  freight  of  one  thousand  guineas.  The  ship  and  cargo 
were  libelled  as  prize  of  war,  and,  upon  the  hearing  in  the  district  court, 
that  part  of  the  cargo  which  was  not  claimed  was  condemned.  The 
residue  of  the  cargo,  excepting  one  moiety  of  certain  packages,  claimed 
on  behalf  of  Messrs.  Ivens  &  Burnett,  a  mercantile  firm  at  St.  Michaels, 
was  restored.  The  whole  freight  was  decreed  to  be  paid  to  the  master, 
and  charged  exclusively  upon  the  proceeds  of  the  property  condemned, 
and  the  moiety  of  the  property  restored  to  Messrs.  Ivens  &  Burnett. 
From  so  much  of  this  decree  as  respected  the  controversy  between  the 
captors  and  the  claimants  of  the  cargo,  an  appeal  was  interposed  to  the 
circuit  court,  where  the  decree  was  affirmed,  and  the  cause  was  brought, 
by  appeal  from  the  latter  decree,  to  this  court.     *     *     * 

Story,  J.,  delivered  the  opinion  of  the  court,  and,  after  stating  the 
facts,  proceeded  as  follows ;     *     *     * 

The  next  inquiry  is,  as  to  the  freight  decreed  to  the  master.  As  no 
appeal  was  interposed  to  the  decree  of  the  district  court,  allowing  the 
whole  freight  for  the  whole  voyage,  the  question,  whether  more  than 
a  pro  rata  freight  was  due  (a  question  which  would  otherwise  have  de- 
served grave  consideration),  does  not  properly  arise.  The  only  dis- 
cussion which  can  now  be  entertained,  is,  whether  the  freight  so  de- 
creed ought  not  to  have  been  charged  upon  the  whole  cargo,  instead 
of  being  charged  upon  a  portion  of  it.  And  we  are  all  of  opinion  that 
it  was  properly  a  charge  upon  the  whole  cargo.  Although  capture  be 
deemed,  in  the  prize  courts,  in  many  cases,  equivalent  to  delivery,  yet 
the  captors  cannot  be  liable  for  more  than  the  freight  of  the  goods 
actually  received  by  them.  The  capture  of  a  neutral  ship,  having  en- 
emy's property  on  board,  is  a  strictly  justifiable  exercise  of  the  rights 
of  war.  It  is  no  wrong  done  to  the  neutral,  even  though  the  voyage 
be  thereby  defeated.  The  captors  are  not,  therefore,  answerable  in 
poenam  to  the  neutral  for  the  losses  which  he  may  sustain  by  a  lawful 
exercise  of  belligerent  rights.  It  is  the  misfortune  of  the  neutral,  and 
not  the  fault  of  the  belligerent.  By  the  capture,  the  captors  are  sub- 
stituted in  lieu  of  the  original  owners,  and  they  take  the  property  cum 
onere.  They  are,  therefore,  responsible  for  the  freight  which  then  at- 
tached upon  the  property,  of  which  the  sentence  of  condemnation  as- 
certains them  to  be  the  rightful  owners  succeeding  to  the  former  pro- 


Ch.  18)  ADJUDICATION   OF   PRIZE  1087 

prietors.  So  far  the  rule  seems  perfectly  equitable;  but  to  press  it 
further,,  and  charge  them  with  the  freight  of  goods  which  they  have 
never  received,  or  with  the  burden  of  a  charter  party  into  which  they 
have  never  entered,  would  be-  unreasonable  in  itself,  and  inconsistent 
with  the  admitted  principles  of  prize  law.  It  might,  in  a  case  of  justi- 
fiable capture,  by  the  condemnation  of  a  single  bale  of  goods,  lead  the 
captors  to  their  ruin  by  loading  them  with  the  stipulated  freight  of  a 
whole  cargo. 

On  the  whole,  we  are  all  of  opinion,  that  the  decree  of  the  circuit 
court  ought  to  be  affirmed,  except  so  far  as  it  charges  the  freight  upon 
the  property  condemned,  and  the  moiety  claimed  by  Messrs.  Ivens  & 
Burnett ;  and  as  to  this,  it  ought  to  be  reversed,  and  that  the  freight 
should  be  decreed  to  be  a  charge  upon  the  whole  cargo,  to  be  paid  by 
each  parcel  thereof,  in  proportion  to  its  value. 

Decree  affirmed,  except  as  to  the  freight.^* 


THE  CARLOS  F.  ROSES. 

(Supreme  Court  of  the  United  States.  1900.    177  U.  S.  655,  20  Sup.  Ct.  803, 

44  L.  Ed.  929.) 

I 

The  Carlos  F.  Roses  was  a  Spanish  bark  of  499  tons,  hailing  from 
Barcelona,  Spain,  sailing  under  the  Spanish  flag,  and  officered  and 
manned  by  Spaniards.  She  had  been  owned  for  many  years  by  Pedro 
Roses  Valenti,  a  citizen  of  Barcelona.  Her  last  voyage  began  at  Barce- 
lona, whence  she  proceeded  to  Montevideo,  Uruguay,  with  a  cargo  of 
wine  and  salt.    All  of  the  outward  cargo  was  discharged  at  Montevideo, 

«3  It  has  been  held,  that  the  charter  party  is  not  the  measure  by  which  the 
captor  is.  in  all  cases,  bound,  even  where  no  fraud  is  imputed  to  the  contract 
itself.  When,  by  the  events  of  war,  navigation  is  rendered  so  hazardous  as 
to  "raise  the  price  of  freight  to  an  extraordinary  height,  captors  are  not,  neces- 
sarily, bound  to  that  inflamed  rate  of  fi-eight.  When  no  such  circumstances 
exist,  when  a  ship  is  carrying  on  an  ordinary  trade,  the  charter  party  is  un- 
doubtedly the  rule  of  valuation,  unless  impeached;  the  captor  puts. himself 
in  the  place  of  the  owner  of  the  cargo,  and  takes  with  that  specific  lien  upon 
it.  But  a  very  different  rule  is  to  be  applied,  when  the  trade  is  subjected  to 
very  extraordinary  risk  and  hazard,  from  its  connection  with  the  events  of 
war,  and  the  redoubled  activity  and  success  of  the  belligerent  cruisers.  The 
Twilling  Riiget,  5  Rob.  82  (1804). 

"Freight,  then,  is  property  insurable  and  collectible.  It  has  value,  although 
the  right  as  against  the  freighter  may  be  inchoate  until  delivery.  As  to  the 
freighter  the  ship-owner  is  without  redress,  unless  there  be  delivery  in  ac- 
cordance with  the  contract,  but  as  to  an  insurer  or  tort-feasor,  there  is  a 
right  to  redress  upon  the  happening  of  an  interruption  of  the  voyage.  *  *  * 
Tlie  decisions  on  this  question  in  the  United  States  do  not  go  so  far  as  those 
in  England,  but  we  lean  to  the  doctrine  of  Sir  William  Scott  and  Dr.  Lushing- 
ton,  as  better  applicable  to  the  cases  now  before  us,  that  when  a  vessel  is 
actually  under  contract  for  a  voyage  from  one  port  to  another,  thence  to  pro- 
ceed to  a  third,  she  has  such  'a  present  existing  title'  in  the  freight  money  of 
the  entire  voyage  as  to  authorize  a  recovery  based  upon  the  total  freight 
money  for  the  round  trip."  Per  Davis,  J.,  in  Hooper,  Adm'r,  v.  United  States, 
22  Ct  CI.  408,  461,  463  (1887). 


1088  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

where  the  vessel  took  on  a  cargo  consisting  of  jerked  beef  and  garUc  to 
be  dehvered  at  Havana,  Cuba,  and  sailed  for  the  latter  port  on  March 
16,  1898.  On  May  17,  when  in  the  Bahama  Channel  off  Punta  de  Ma- 
ternillos,  Cuba,  and  on  her  course  to  Havana,  she  was  captured  by  the 
United  States  cruiser  New  York  and  sent  to  Key  West  in  charge  of 
a  prize  crew.  The  bark  and  her  cargo  were  duly  libelled  May  20. 
All  of  the  ship's  papers  were  delivered  to  the  prize  commissioners, 
and  the  deposition  of  Maristany,  her  master,  was  taken  in  preparatorio. 
Kleinwort  Sons  &  Co.  of  London,  England,  made  claim  to  the  cargo, 
consisting  of  a  shipment  of  110,256  kilos  of  jerked  beef  and  19,980 
strings  of  garlic,  and  a  further  shipment  of  165,384  kilos  of  jerked 
beef,  alleging  that  they  were  its  owners  and  that  it  was  not  lawful 
prize  of  war.  In  support  of  the  claim  the  firm's  agent  in  the  United 
States  filed  a  test  affidavit  made  on  information  and  belief.     *     *     * 

The  cause  was  heard  on  the  libel  and  claims  of  the  master  of  the 
bark  and  Kleinwort  &  Co.,  and  the  evidence  taken  in  preparatorio 
The  vessel  was  condemned  as  enemy  property,  and  the  court  ordered 
the  claimants  of  the  cargo  to  "have  sixty  days  in  which  to  file  further 
proof  of  ownership" ;  and  because  of  its  perishable  nature  the  marshal 
of  the  court  was  ordered  to  advertise  and  sell  the  same,  and  deposit 
the  proceeds  in  accordance  to  law.  No  appeal  was  taken  on  behalf  of 
the  vessel.  The  cargo  was  sold  and  the  proceeds  deposited  with  the 
assistant  treasurer  of  the  United  States  at  New  York,  subject  to  the 
order  of  the  court.  The  time  for  claimants  to  take  further  proofs 
was  twice  extended.  No  witnesses  were  produced  by  claimants,  but 
Charles  F.  Harcke,  claimants'  manager  in  London,  made  three  ex 
parte  affidavits  before  the  United  States  consul  general,  which  were 
offered  in  evidence  by  claimants.  Appended  to  the  affidavits  were  a 
large  number  of  exhibits  purporting  to  be  papers,  or  copies  of  papers, 
relating  to  the  shipment  of  the  cargo,  and  some  of  the  financial  trans- 
actions of  some  of  those  who  had  to  do  with  it.     *     *     * 

The  ship's  manifest  appears  to  have  been  signed  by  Maristany,  her 
master,  at  Montevideo,  on  March  15,  1898,  and  was  vised  by  the  Span- 
ish consul  at  that  port  the  previous  day.  It  described  the  ship's  des- 
tination as  Havana,  and  her  cargo  as  made  up  of  two  lots  of  jerked 
beef  containing  248,076  kilos  and  29,970  kilos  respectively,  and  one  lot 
of  garlic  containing  19,980  strings,  all  shipped  by  Gibernau  &  Co., 
"to  order."  On  March  14,  Maristany  issued  three  bills  of  lading,  in 
which  it  was  stated  that  the  shipments  were  received  from  Gibernau 
&  Co.  for  transportation  to  Havana  "for  account  and  at  the  risk  of 
whom  it  may  concern" ;  one  of  the  bills  covering  a  shipment  of  165,- 
384  kilos  of  jerked  beef;  another  of  110,256  kilos  of  jerked  beef; 
and  the  third  of  19,980  bunches  of  garlic. 

March  15,  Gibernau  &  Co.  drew  this  bill  of  exchange: 

"No.  128.  Montevideo,  March  15,  1898.  For  £2714.13.8.  Ninety 
days  after  sight  you  will  please  pay  for  this  first  of  exchange  (the 


Ch.  18)  ADJUDICATION   OF   PRIZE  1089 

second  and  third  being  unpaid),  to  the  order  of  the  London  River  Plate 
Bank,  L'd,  the  sum  of  £2714.13.8.,  value  received,  which  you  will 
charge  to  the  account  of  Pedro  Pages  of  Havana  as  per  advice. 

"Pla  Gibernau  &  Co. 

"To  Messrs.  Kleinwort  Sons  &  Co.,  London," 

On  the  same  day  Maristany  drew  this  bill  of  exchange: 

"No.  129.  Montevideo,  March  15,  1898.  For  £3583.11.6.  Ninety 
days  after  sight  you  will  please  pay  for  this  first  of  exchange  (the  sec- 
ond and  third  being  unpaid),  to  the  order  of  Pla  Gibernau  &  Co.  the 
sum  of  £3583.11.6.,  invoice  value  of  jerked  beef,  per  Carlos  F.  Roses, 
which  you  will  charge  to  the  account  of  P.  Roses  Valenti,  of  Barcelona, 
as  per  advice.  Ysidro  Bertran  Maristany. 

"To  Messrs.  Kleinwort  Sons  &  Co.,  London." 

This  was  indorsed  by  Gibernau  &  Co. 

Valenti  was  the  managing  owner  of  the  Carlos  F.  Roses.  Both  bills 
of  exchange  passed  through  the  London  River  Plate  Bank,  L't'd,  at 
Montevideo.  On  April  6  they  were  accepted  by  Kleinwort  Sons  & 
Co.,  and  on  May  9  were  paid  under  discount  by  that  firm.     *     *     * 

The  cause  of  the  cargo  was  heard  a  second  time  on  the  claim,  test 
affidavit,  and  Harcke's  affidavits,  and  a  decree  was  entered  for  the 
payment  to  claimants  of  the  proceeds  of  sale;  from  which  decree  the 
United  States  took  this  appeal.     *     *     * 

Mr.  Chief  Justice  Fuller,  after  stating  the  case,  delivered  the  opin- 
ion of  the  court. 

The  President's  proclamation  of  April  26,  1898,  declared  the  policy 
of  the  government  in  the  conduct  of  the  war  would  be  to  adhere  to  the 
rules  of  the  Declaration  of  Paris  therein  set  forth,  one  of  them  being 
thus  expressed:  "Neutral  goods,  not  contraband  of  war,  are  not  liable 
to  confiscation  under  the  enemy's  flag." 

The  question  is  whether  this  cargo  when  captured  was  enemy  prop- 
erty or  not.  The  District  Court  held  that  both  the  title  and  right  of 
possession  were  in  these  neutral  claimants  at  the  time  of  the  capture, 
"as  evidenced  by  the  indorsed  bills  of  lading  and  the  paid  bills  of 
exchange,"  and,  therefore,  entered  the  decree  in  claimant's  favor.  As 
the  vessel  was  an  enemy  vessel  the  presumption  was  that  the  cargo 
was  enemy's  property,  and  this  could  only  be  overcome  by  clear  and 
positive  evidence  to  the  contrary.  The  burden  of  proving  ownership 
rested  on  claimants.  The  London  Packet,  5  Wheat.  132,  5  L.  Ed. 
52;  The  Sally  Magee,  3  Wall.  451,  18  L.  Ed.  197;  The  Benito 
Estenger,  176  U.  S.  568,  20  Sup.  Ct.  489,  44  L.  Ed.  592.     *     *     * 

In  the  case  in  hand,  the  captors  succeeded  to  the  enemy  owners' 
rights,  and  could  have  introduced  evidence  as  to  the  real  nature  of  the 
transactions,  and  so  have  rebutted  any  presumption  in  favor  of  the 
bankers  as  purchasers  for  value,  and  although  they  did  not  do  this, 
the  question  still  remains  that  in  prize  courts  it  is  necessary  for  claim- 
ants to  show  the  absence  of  anything  to  impeach  the  transaction,  and 
Scott  Int.Law— 69 


1090  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR  (Part  3 

at  least  to  disclose  fully  all  the  surrounding  circumstances.  And  this 
we  think  claimants  have  failed  to  do. 

The  right  of  capture  acts  on  the  proprietary  interest  of  the  thing 
captured  at  the  time  of  the  capture  and  is  not  affected  by  the  secret 
liens  or  private  engagements  of  the  parties.  Hence  the  prize  courts 
have  rejected  in  its  favor  the  lien  of  bottomry  bonds,  of  mortgages, 
for  supplies,  and  of  bills  of  lading.  The  assignment  of  bills  of  lading 
transfers  the  jus  ad  rem,  but  not  necessarily  the  jus  in  rem.  The  jus 
in  re  or  in  rem  implies  the  absolute  dominion — the  ownership  inde- 
pendently of  any  particular  relation  with  another  person.  The  jus  ad 
rem  has  for  its  foundation  an  obligation  incurred  by  another.  Sand. 
Inst.  Just.  Introd.  xlviii;  2  Marcade,  Expl.  du  Code  Napoleon,  350; 
2  Bouvier  (Rawle's  Revision)  7Z ;  The  Young  Mechanic,  2  Curtis,  404, 
Fed.  Cas.  No.  18,180. 

Claimants  did  not  obtain  the  jus  in  rem,  and,  according  to  the  great 
weight  of  authority,  the  right  of  capture  was  superior. 

In  The  Frances,  8  Cranch,  418,  3  L.  Ed.  609,  a  New  York  merchant 
claimed  two  shipments  of  goods,  one  in  consequence  of  an  advance 
made  to  enemy  shippers  by  him  in  consideration  of  the  consignment, 
and  the  other  in  virtue  of  a  general  balance  of  account  due  to  him  from 
the  shippers  as  their  factor.  Both  consignments  were  at  the  risk  of  the 
enemy  shippers.  The  goods  were  condemned  as  enemy  property,  and 
the  sentence  was  affirmed.     This  court  said : 

"The  doctrine  of  liens  seems  to  depend  chiefly  upon  the  rules  of  ju- 
risprudence established  in  different  countries.  There  is  no  doubt  but 
that,  agreeably  to  the  principles  of  the  common  law  of  England,  a  factor 
has  a  lien  upon  the  goods  of  his  principal  in  his  possession,  for  the 
balance  of  account  due  to  him;  and  so  has  a  consignee  for  advances 
made  by  him  to  the  consignor.  *  *  *  But  this  doctrine  is  unknown 
in  prize  courts,  unless  in  very  peculiar  cases,  where  the  lien  is  imposed 
by  a  general  law  of  the  mercantile  world,  independent  of  any  contract 
between  the  parties.  Such  is  the  case  of  freight  upon  enemies'  goods 
seized  in  the  vessel  of  a  friend,  which  is  always  decreed  to  the  owner 
of  the  vessel.  *  *  *  B^t  in  cases  of  liens  created  by  the  mere 
private  contract  of  individuals,  depending  upon  the  different  laws  of 
different  countries,  the  difficulties  which  an  examination  of  such  claims 
would  impose  upon  the  captors,  and  even  upon  the  prize  courts,  in 
deciding  upon  them,  and  the  door,  which  such  a  doctrine  would  open 
to  collusion  between  the  enemy  owners  of  the  property  and  neutral 
claimants,  have  excluded  such  cases  from  the  consideration  of  those 
courts.  *  *  *  f  hg  principal  strength  of  the  argument  in  favor  of 
the  claimant  in  this  case,  seemed  to  be  rested  upon  the  position,  that 
the  consignor  in  this  case  could  not  have  countermanded  the  consign- 
ment after  delivery  of  the  goods  to  the  master  of  the  vessel ;  and  hence 
it  was  inferred  that  the  captor  had  no  right  to  intercept  the  passage 
of  the  property  to  the  consignee.    This  doctrine  would  be  well  founded, 

Scott  Int.Law 


Ch.  18)  ADJUDICATION  OF  PRIZE  1091 

if  the  goods  had  been  sent  to  the  claimant  upon  his  account  and  risk, 
except'  in  the  case  of  insolvency.  But  when  goods  are  sent  upon  the 
account  and  risk  of  the  shipper,  the  delivery  to  the  master  is  a  delivery 
to  him  as  agent  of  the  shipper,  not  of  the  consignee;  and  it  is  compe- 
tent to  the  consignor,  at  any  time  before  actual  delivery  to  the  con- 
signee, to  countermand  it,  and  thus  to  prevent  his  lien  from  attaching. 
Upon  the  whole,  the  court  is  of  opinion  that,  upon  the  reason  of  the 
case,  as  well  as  upon  authority,  this  claim  cannot  be  supported,  and 
that  the  sentence  of  the  court  below  must  be  affirmed  with  costs." 

In  The  Mary  and  Susan,  1  Wheat.  25,  4  L.  Ed.  27,  an  American 
merchantman  bound  from  Liverpool  to  New  York  was  captured  by 
a  privateer  of  the  United  States  during  the  War  of  1812.  In  her  cargo 
were  certain  goods  which  had  been  shipped  by  British  subjects  to  citi- 
zens of  the  United  States,  in  pursuance  of  orders  received  before  the 
declaration  of  war.  Previous  to  the  execution  of  the  orders  the  ship- 
pers became  embarrassed,  and  assigned  the  goods  to  certain  bankers 
to  secure  advances  made  by  them,  with  a  request  to  the  consignees  to 
remit  the  amount  to  the  bankers,  who  also  repeated  the  same  request, 
the  invoices  being  for  gain  and  risk  of  the  consignees,  and  stating  the 
goods  to  be  then  the  property  of  the  bankers,  and  it  was  held  that 
the  goods  having  been  purchased  and  shipped  in  pursuance  of  orders 
from  the  consignees,  the  property  was  originally  vested  in  them,  and 
was  not  devested  by  the  intermediate  assignment^  which  was  merely 
intended  to  transfer  the  right  to  the  debt  due  from  the  consignees. 

In  The  Hampton,  5  Wall.  372,  18  L.  Ed.  659,  the  schooner  Hamp- 
ton and  her  cargo  had  been  captured,  libelled  and  condemned  as  prize 
of  war.  The  master  of  the  vessel  was  her  owner,  but  interposed  no 
claim ;  nor  did  any  one  claim  the  cargo.  One  Brinckley  appeared  and 
claimed  the  vessel  as  mortgagee.  The  bona  fides  of  this  mortgage  was 
not  disputed ;  nor  that  he  was  a  loyal  citizen.  But  his  claim  was  dis- 
missed, and,  the  case  having  been  certified  to  this  court,  it  was  held 
that  in  proceedings  in  prize,  and  under  the  principles  of  international 
law,  mortgages  on  vessels  captured  jure  belli  are  to  be  treated  only  as 
liens  subject  to  be  overriden  by  the  capture.    Mr.  Justice  Miller  said: 

"The  ground  on  which  appellant  relies  is,  that  the  mortgage,  being 
a  jus  in  re  held  by  an  innocent  party,  is  something  more  than  a  mere 
lien,  and  is  protected  by  the  law  of  nations.  The  mortgagee  was  not  in 
possession  in  this  case,  and  the  real  owner  who  was  in  possession  ad- 
mits that  his  vessel  was  in  delicto  by  failing  to  set  up  any  claim  for  her. 
It  would  require  pretty  strong  authority  to  induce  us  to  import  into  the 
prize  courts  the  strict  common  law  doctrine,  which  is  sometimes  ap- 
plied to  the  relation  of  a  mortgagee  to  the  property  mortgaged.  It  is 
certainly  much  more  in  accordance  with  the  liberal  principles  which 
govern  admiralty  courts  to  treat  mortgages  as  equity  courts  treat  them, 
as  a  mere  security  for  the  debt  for  which  they  are  given,  and  there- 
fore no  more  than  a  lien  on  the  property  conveyed.  But  it  is  unnec- 
essary to  examine  this  question  minutely,  because  an  obvious  principle 


1092  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

of  necessity  must  forbid  a  prize  court  from  recognizing  the  doctrine 
here  contended  for.  If  it  were  once  admitted  in  these  courts,  there 
would  be  an  end  of  all  prize  condemnation.  As  soon  as  a  war  was 
threatened,  the  owners  of  vessels  and  cargoes  which  might  be  so  sit- 
uated as  to  be  subject  to  capture,  would  only  have  to  raise  a  sufficient 
sum  of  money  on  them,  by  bona  fide  mortgages,  to  indemnify  them 
in  case  of  such  capture.  If  the  vessel  or  cargo  was  seized,  the  owner 
need  not  appear,  because  he  would  be  indifferent,  having  the  value  of 
his  property  in  his  hands  already.  The  mortgagee  having  an  honest 
mortgage  which  he  could  establish  in  a  court  of  prize,  would  either 
have  the  property  restored  to  him  or  get  the  amount  of  the  mortgage 
out  of  the  proceeds  of  the  sale.  The  only  risk  run  by  enemy  vessels 
or  cargoes  on  the  high  seas,  or  by  neutrals  engaged  in  an  effort  to  break 
the  blockade  would  be  the  costs  and  expenses  of  captuf-e  and  condem- 
nation, a  risk  too  unimportant  to  be  of  any  value  to  a  belligerent  in 
reducing  his  opponent  to  terms.  The  principle  which  thus  abolishes 
the  entire  value  of  prize  capture  on  the  high  seas,  and  deprives  block- 
ades of  all  danger  to  parties  disposed  to  break  them,  cannot  be  recog- 
nized as  a  rule  of  prize  courts." 

In  The  Battle,  6  Wall.  498,  18  L.  Ed.  933,  the  steamer  Battle  and 
cargo  were  captured  on  the  high  seas  as  prize  of  war,  brought  into 
port  and  condemned,  for  breach  of  blockade  and  also  as  enemy  prop- 
erty. Two  claims  were  set  up  against  the  steamer  in  the  court  below, 
one  for  supplies,  and  another  for  materials,  furnished,  and  for  work 
and  labor  in  building  a  cabin  on  the  boat.  These  claims  were  dis- 
missed, and  the  decree  affirmed  by  this  court,  Mr.  Justice  Nelson  de- 
livering the  opinion,  saying:  "The  principle  is  too  well  settled  that 
capture  as  prize  of  war,  jure  belli,  overrides  all  previous  liens,  to  re- 
quire examination," 

Such  is  the  rule  in  the  British  prize  courts.  The  Tobago,  5  C.  Rob. 
218;   The  Marianna,  6  C.  Rob.  24;  The  Ida,  Spinks'  Prize  Cases,  26. 

The  Tobago  was  a  case  of  claim  to  a  captured  French  vessel,  made 
on  behalf  of  a  British  merchant  as  the  holder  of  a  bottomry  bond  ex- 
ecuted and  delivered  to  him  by  the  master  of  the  ship  before  the  com- 
mencement of  hostilities  between  Great  Britain  and  France.  Sir  Wil- 
liam Scott  said : 

"The  integrity  of  this  transaction  is  not  impeached,  but  I  am  called 
upon  to  consider  whether  the  court  can,  consistently  with  the  principles 
of  law  that  govern  its  practice,  afford  relief.  It  is  the  case  of  a  bot- 
tomry bond,  given  fairly  in  times  of  peace,  without  any  view  of  infring- 
ing the  rights  of  war,  to  relieve  a  ship  in  distress.  *  *  *  But  can 
the  court  recognize  bonds  of  this  kind  as  titles  of  property,  so  as  to 
give  persons  a  right  to  stand  in  judgment,  and  demand  restitution  of 
such  interests  in  a  court  of  prize?  *  *  *  fhe  person  advancing 
money  on  bonds  of  this  nature,  acquires,  by  that  act,  no  property  in 
the  vessel;  he  acquires  the  jus  in  rem,  but  not  the  jus  in  re,  until  it 
has  been  converted  and  appropriated  by  the  final  process  of  a  court 


Ch.  18)  ADJUDICATION  OF   PRIZE  1093 

of  justice.  *  *  *  But  it  is  said  that  the  captor  takes  cum  onere, 
and,  therefore,  that  this  obHgation  would  devolve  upon  him.  That 
he  is  held  to  take  cum  onere  is  undoubtedly  true,  as  a  rule  which  is 
to  be  understood  to  apply  where  the  onus  is  immediately  and  visibly 
incumbent  upon  it.  A  captor  who  takes  the  cargo  of  an  enemy  on 
board  the  ship  of  a  friend,  takes  it  liable  to  the  freight  due  to  the 
owner  of  the  ship;  because  the  owner  of  the  ship  has  the  cargo  in  his 
possession,  subject  to  that  demand  by  the  general  law,  independent  of 
all  contract.  *  *  *  But  it  is  a  proposition  of  a  much  wider  ex- 
tent, which  affirms  that  a  mere  right  of  action  is  entitled  to  the  same 
favorable  consideration  in  its  transfer  from  a  neutral  to  a  captor.  It  is 
very  obvious  that  claims  of  such  a  nature  may  be  so  framed  as  that 
no  powers  belonging  to  this  court  can  enable  it  to  examine  them  with 
effect.  They  are  private  contracts,  passing  between  parties  who  may 
have  an  interest  in  colluding ;  the  captor  has  no  access  whatever  to  the 
original  private  understanding  of  the  parties  in  forming  such  contracts ; 
and  it  is,  therefore,  unfit  that  he  should  be  affected  by  them.  His 
rights  of  capture  act  upon  the  property,  without  regard  to  secret  liens 
possessed  by  third  parties.  *  *  *  j  am  of  opinion  that  there  is 
no  instance  in  which  the  court  has  recognized  bonds  of  this  kind  as 
titles  of  property,  and  that  they  are  not  entitled  to  be  recognized  as 
such  in  the  prize  courts." 

In  The  Marianna,  the  vessel  had  been  sold  at  Buenos  Ayres  by 
American  owners  to  a  Spanish  merchant;  the  purchase  money,  how- 
ever, had  not  been  paid  in  full,  but  was  to  be  satisfied  out  of  the  pro- 
ceeds of  a  quantity  of  tallow  on  board  the  vessel  for  sale,  consigned  to 
-the  agents  of  the  American  vendors  at  London.  The  vessel  was  seized 
on  her  voyage  to  England,  documented  as  belonging  to  a  Spanish  mer- 
chant, and  saiHng  under  the  flag  and  pass  of  Spain.  The  former  Amer- 
ican proprietors  made  claim  to  the  cargo,  but  the  claim  was  disallowed 
because  the  claimants'  interest  was  not  sufficient  to  support  it ;  and  the 
court  said: 

"Captors  are  supposed  to  lay  their  hands  on  the  gross  tangible  prop- 
erty, on  which  there  may  be  many  just  claims  outstanding,  between 
other  parties,  which  can  have  no  operation  as  to  them.  If  such  a  rule 
did  not  exist,  it  would  be  quite  impossible  for  captors  to  know  upon 
what  grounds  they  were  proceeding  to  make  any  seizure.  The  fairest 
and  most  credible  documents,  declaring  the  property  to  belong  to  the 
enemy,  would  only  serve  to  mislead  them,  if  such  documents  were  liable 
to  be  overruled  by  liens  which  could  not  in  any  manner  come  to  their 
knowledge.  It  would  be  equally  impossible  for  the  court,  which  has  to 
decide  upon  the  question  of  property,  to  admit  such  considerations. 
The  doctrine  of  liens  depends  very  much  on  the  particular  rules  of  ju- 
risprudence which  prevail  in  different  countries.  To  decide  judicially 
on  such  claims,  would  require  of  the  court  a  perfect  knowledge  of  the 
law  of  covenant,  and  the  application  of  that  law  in  all  countries,  un- 
der all  the  diversities  in  which  that  law  exists.    From  necessity,  there- 


1094  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR         (Part  3 

fore,  the  court  would  be  obliged  to  shut  the  door  against  such  discus- 
sions and  to  decide  on  the  simple  title  of  property,  with  scarcely  any 
exceptions.  *  *  *  As  to  the  title  of  property  in  the  goods,  which 
are  said  to  have  been  going  as  the  funds  out  of  which  the  payment 
for  the  ship  was  to  have  been  made.  That  they  were  going  for  the 
payment  of  a  debt  will  not  alter  the  property ;  there  must  be  some- 
thing more.  Even  if  bills  of  lading  are  delivered,  that  circumstance 
will  not  be  sufficient,  unless  accompanied  with  an  understanding  that 
he  who  holds  the  bill  of  lading  is  to  bear  the  risk  of  the  goods  as  to  the 
voyage,  and  as  to  the  market  to  which  they  are  consigned ;  otherwise, 
though  the  security  may  avail  pro  tanto,  it  cannot  be  held  to  work  any 
change  in  the  property." 

These  cases  were  cited  by  Dr.  Lushington  in  The  Ida  as  settling  the 
law.  In  that  case,  claim  was  made  by  a  neutral  merchant  to  a  cargo  of 
coffee  which  had  been  consigned  to  him  by  an  enemy  on  the  credit  of 
certain  advances,  as  security  for  payment  of  which  bills  of  lading  cov- 
ering the  cargo  had  been  delivered  to  him.  But  the  court  declined  to 
recognize  the  lien,  and  condemned  the  cargo  as  enemy  property.  Dr. 
Lushington  referred  to  The  San  Jose  Indiano  and  Cargo,  2  Gall.  267, 
Fed.  Cas.  No.  12,322,  and  subscribed  to  what  was  there  said  by  Mr. 
Justice  Story,  but  thought  his  remarks  inapplicable  to  the  case  in 
hand. 

The  case  referred  to  was  affirmed  by  this  court.  1  Wheat.  208. 
Goods  were  shipped  by'  Dyson,  Brothers  &  Co.  of  Liverpool  on  board  a 
neutral  ship  bound  to  Rio  de  Janeiro,  which  was  captured  and  brought 
into  the  United  States  for  adjudication.  The  invoice  was  headed: 
"Consigned  to  Messrs.  Dyson,  Brothers  &  Finnic,  by  order  and  for  ac- 
count of  J.  Lizaur."  In  a  letter  accompanying  the  bill  of  lading  and 
invoice,  Dyson,  Brothers  &  Co.  wrote  Dyson,  Brothers  &  Finnic:  "For 
Mr.  Lizaur  we  open  an  account  in  our  books  here,  and  debit  him, 
etc.  We  cannot  yet  ascertain  the  proceeds  of  his  hides,  etc.,  but  find 
his  order  for  goods  will  far  exceed  the  amount  of  these  shipments, 
therefore  we  consign  the  whole  to  you,  that  you  may  come  to  a  proper 
understanding  with  him."  The  two  houses  consisted  of  the  same  per- 
sons. It  was  held  that  the  goods  were,  during  their  transit,  the  prop- 
erty and  at  the  risk  of  the  enemy  shippers,  and  therefore  subject  to 
condemnation.  Lizaur's  claim  was  rejected  although  Dyson,  Brothers 
&  Co.  had  the  proceeds  of  his  hides  in  their  hands.     *     *     * 

We  are  of  opinion  that  a  valid  transfer  of  title  to  this  enemy  prop- 
erty to  claimants  was  not  satisfactorily  made  out,  and  that 

The  decree  below  must  be  reversed,  and  a  decree  of  condemnation 
directed  to  be  entered,  and  it  is  so  ordered.^* 

24  Part  of  the  opinion  of  Mr.  Chief  Justice  Fuller  and  the  dissenting  opin- 
ion of  Mr.  Shiras,  in  which  Mr.  Justice  Brewer  concurred  are  omitted. 

"But  the  firm  of  Gelirckens  further  bases  its  claim  upon  the  statement  that 
as  the  result  of  expenditures  incurred  at  the  direction  of  the  captain,  it  has 
acquired  a  lien  upon  the  ship,  the  exercise  of  which  is  reserved  to  it  in  case 


Ch.  18)  ADJUDICATION   OF   PRIZE  1095 

THE  BARMBEK. 
(French  Prize  Court,  1916.    Journal  Officiel,  July  24,  1916,  p.  6611.) 

In  the  name  of  the  French  people,  the  Prize  Court  has  rendered  the 
following  decision  between : 

On  the  one  hand,  the  captain,  owner,  charterers,  shippers  and  con- 
signees of  the  cargo  of  the  sailing  vessel  Barmbek,  captured  at  sea 
on  August  18,  1914,  by  the  auxiliary  cruiser  Flandre; 

And,  on  the  other  hand,  the  Minister  of  the  Navy,  acting  on  ac- 
count of  the  captors  and  the  fund  for  disabled  sailors. 

Considering  the  decision  of  the  Prize  Court  under  date  of  Decem- 
ber 8,  1914,  of  which  paragraph  4  reads  as  follows :  "Judgment  is 
suspended  with  regard  to  the  return  to  the  owners  of  the  cargo  of 
the  sum  deposited  by  them  as  representing  the  proportional  part  of 
the  freight  acquired  by  the  vessel.  Within  the  delay  of  two  months 
beginning  from  the  notification  of  the  present  decision  the  interested 
parties  shall  present  to  the  Prize  Court,  by  one  of  the  modes  indicated 
in  articles  7  and  9  of  the  Decree  of  May  9,  1859,  all  documents  in ' 
support  of  their  claims.  The  Minister  of  the  Navy  shall  furnish  his 
statements  within  the  month  following  the  transmission  to  him  of 
the  aforementioned  documents ;  at  the  expiration  of  this  latter  delay, 
final  judgment  shall  be  rendered;"     *     *     * 

Having  heard  M.  Paul  Gauthier,  member  of  the  Court,  in  his  re- 
port, and  M.  Chardenet,  Commissioner  of  the  Government,  in  his  state- 
ments in  support  of  the  aforementioned  motions : 

The  Court,  after  having  duly  deliberated  thereon. 

Whereas,  the  German  sailing  vessel,  Barmbek,  the  capture  of  which 
was  declared  legal  and  valid  by  the  decision  of  the  Court  under  date 
of  December  8,  1914,     *     *     * 

Whereas,  it  is  furthermore  not  in  order  to  apply  articles  296  and 
303  of  the  Commercial  Code  prescribing  that  in  case  of  interruption 
of  the  voyage  by  force  majeure  the  shipper  shall  pay  freight  for  the 
distance  covered ;  whereas,  in  fact  the  Commercial  Code  has  the  ob- 
ject in  the  above-mentioned  articles  to  regulate  the  commercial  rela- 
tions between  shipowners  on  the  one  hand  and  shippers  and  freighters 
on  the  other  hand ; 

Whereas,  the  provisions  that  it  lays  down  concerning  the  execution 
or  the  consequences  of  the  non-execution  between  parties  of  a  con- 
tract of  a  private  nature  can  not  be  extended  to  cover  the  consequences 

of  the  seizure  of  the  ship.  However,  the  question  need  not  now  be  raised  as 
to  whether  the  said  firm  has  acquired  a  right  in  rem  to  the  steamer  on  ac- 
count of  its  expenditures  or  on  account  of  any  part  tliereof.  For  tliis  lien 
would  autoniatically  become  null  in  case  of  capture  of  the  vessel.  Capture 
under  prize  law  is  an  original  mode  of  acquisition,  an  occupatio  iure  belli 
which  gives  the  occupant  uneucumb(^red  ownership  of  the  seized  property,  in 
accordance  with  generally  recognized  principles  of  international  law."  The 
Fenix  (1914)  Eutscheidungen  des  Uberprisengerichts  in  Berlin,  1,  S,  (191S). 


1096  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR  (Part  3 

of  an  act  of  war,  such  as  the  capture  of  a  ship,  in  the  relations  of  the 
belligerent  state  exercising  its  right  of  prize,  and  of  the  private  ship- 
owners of  a  captured  vessel,  or  the  shippers  of  its  cargo. 

Whereas,  the  capture  of  a  vessel  is  an  act  of  war,  the  legitimacy 
of  which  is  recognized  by  the  law  of  nations  and  the  consequences 
of  which  must  be  judged  according  to  the  general  principles  of  this 
law ;  and  whereas,  with  regard  to  the  acquisition  of  freight  in  pro- 
portion to  the  distance  covered,  the  maritime  powers  have  different 
systems  of  legislation;  whereas,  under  these  conditions,  each  national 
jurisdiction  can  refer  only  to  the  principles  constantly  admitted  in 
the  country  to  which  it  belongs ; 

Whereas,  the  British  Prize  Court  has  stated  (case  of  The  Roland, 
March  22,  and  29,  1915)  that  "every  other  solution  would  necessitate 
*  *  *  a  close  investigation  of  all  the  terms,  conditions,  and  circum- 
stances involved  in  the  contractual  obligations  of  the  parties,  and  of 
their  rights  and  liabilities  under  foreign  municipal  law,  which  this  Court 
has  always  refused  to  undertake" ; 

Whereas,  likewise,  it  is  not  in  order  for  the  French  Prize  Court 
to  apply  the  British  laws  and  usages ; 

Whereas,  this  Court  must  admit  freight  for  distance  covered,  as  has 
been  repeatedly  sanctioned  by  French  jurisprudence  in  matters  of  prize 
(see  especially  the  decision  of  the  Prize  Court  of  November  25,  1870, 
case  of  The  Julius;  decree  of  November  2,  1871,  case  of  The  Vorset- 
zen;   decree  of  December  13,  1871,  case  of  The  Alma); 

Whereas,  consequently,  the  interested  parties  are  not  justified  in 
claiming  reimbursement  for  the  sums  which  they  have  deposited  as 
representing  the  freight  proportional  to  the  distance  covered  by  the 
goods  which  they  have  laden  on  the  Barmbek; 

Whereas,  the  claims  for  indemnity,  presented  by  the  interested  par- 
ties, are  based  on  conditions  under  which  the  cargo  had  been  stowed 
and  should  have  been  delivered  according  to  the  charter-party ;  where- 
as, they  refer,  therefore,  to  the  execution  of  the  contract  which  was 
made  between  the  shippers  and  the  shipowner  and  which,  as  has  been 
stated  above,  could  not  bind  the  French  State ; 

Whereas,  consequently,  these  claims  can  not  be  sustained.    *    *    *  25 

2  5  In  The  Prins  der  Nederlanden,  L.  R.,  [1921]  1  App.  Cas.  754,  756,  Lord 
Sumner,  speaking  for  the  Privy  Council,  said: 

"The  allowance  of  freight  for  the  carriage  of  contraband  is  undoubtedly 
very  rare.  Two  reported  cases  only  have  been  found  in  which  it  has  been 
ordered:  The  Brita  Csecilia,  Hay  &  Marriott,  234  (1779),  and  The  Neptunus,  3 
C.  Rob.  108  (1800)." 


Ch.  19)  TERMINATION   OF    WAR  1097 

CHAPTER  XIX 
TERMINATION  OF  WAR 


THE  MENTOR. 

(High  Court  of  Admiralty,  1799.    1  C.  Rob.  179.) 

Sir  W.  Scott.  *  *  *  i  The  circumstances  of  the  case,  as  far  as 
it  is  necessary  to  state  them,  are  these :  The  ship,  being  American  prop- 
erty, was  on  a  voyage  from  the  Havana  to  Philadelphia  [in  1783]  ;  off 
the  Delaware  she  was  pursued  by  his  Majesty's  ships,  the  Centurion  and 
the  Vulture,  then  cruising  off  that  river,  under  the  command  of  the 
admiral  on  that  station.  Admiral  Digby.  All  parties  were  in  complete 
ignorance  of  the  cessation  of  hostilities ;  not  only  the  persons  on  board 
the  King's  ships,  but  the  Americans,  as  well  those  on  the  shore,  as 
those  on  board  the  vessel.  In  the  pursuit,  shots  were  fired  on  both 
sides,  and,  it  is  alleged  on  the  part  of  the  British,  that  the  ship  was  set 
on  fire  by  her  own  crew,  who  took  to  the  shore. 

Now,  I  incline  to  assent  to  Dr.  Lawrence's  position,  that  if  an  act  of 
mischief  was  done  by  the  King's  officers,  though  through  ignorance, 
in  a  place  where  no  act  of  hostility  ought  to  have  been  exercised,  it 
does  not  necessarily  follow  that  mere  ignorance  of  that  fact  would 
protect  the  officers  from  civil  responsibility.  If  by  articles,  a  place  or 
district  was  put  under  the  King's  peace,  and  an  act  of  hostility  was 
afterwards  committed  therein,  the  injured  party  might  have  a  right  to 
resort  to  a  court  of  prize  to  show  that  he  had  been  injured  by  this 
breach  of  the  peace,  and  was  entitled  to  compensation;  and  if  the 
officer  acted  through  ignorance,  his  own  government  must  protect 
him :  for  it  is  the  duty  of  governments,  if  they  put  a  certain  district 
within  the  King's  peace,  to  take  care  that  due  notice  shall  be  given  to 
those  persons  by  whose  conduct  that  peace  is  to  be  maintained ;  and 
if  no  such  notice  has  been  given,  nor  due  diligence  used  to  give  it, 
and  a  breach  of  the  peace  is  committed  through  the  ignorance  of 
those  persons,  they  are  to  be  borne  harmless,  at  the  expense  of  that 
government  whose  duty  it  was  to  have  given  that  notice. 

I  am,  therefore,  inclined  to  think  that  the  determination  of  the 
judge  in  the  former  case  did  not  turn  upon  the  mer6  circumstance 
of  ignorance  on  the  part  of  the  King's  ships,  but  that  looking  at  all 
the  circumstances  under  which  the  event  took  place,  and  considering 
their  just  and  legal  effect,  he  was  of  opinion  upon  the  whole  result, 
that  the  protest  on  the  part  of  the  captors  was  well  sustained.    If  that 

1  The  statement  of  facta  and  parts  of  the  opinion  are  omitted. 


1098  RIGHTS  AND   DUTIliS   OF   NATIONS   IN   TIME   OP  WAR         (Part  3 

opinion  of  the  judg.e  was  erroneous,  an  appeal  ought  to  have  been 
prosecuted.  No  appeal  was  prosecuted,  though  such  a  purpose  was 
formerly  declared,  and  a  protocol  entered,  but  no  farther  proceedings 
were  pursued  thereon.'     *     *  .  * 


THE  SCHOONE  SOPHIE. 

(High  Court  of  Admiralty,  1S05.    6  0.  Rob.  138.) 

This  was  a  question,  as  to  the  ship,  reserved  at  the  former  heanng, 
on  a  claim  given  by  the  British  proprietor,  who  stated  her  to  have 
belonged  to  him,  and  to  have  been  captured  by  the  French,  and  car- 
ried into  a  port  in  Norway,  and  condemned  by  the  French  Consular 
Court  in  that  country,  1799.  It  now  appeared  that  other  proceedings 
had  been  afterwards  had,  on  the  former  evidence,  in  the  regular  Court 
of  Prize  in  Paris,^  where  a  sentence  of  condemnation  had  been  pro- 
nounced, professing  to  affirm  the  sentence  of  the  Consular  Court.        "■ 

Sir  VV,  Scott.  I  am  of  opinion  that  the  title  of  the  former  owner  is 
completely  barred  by  the  intervention  of  peace,  which  has  the  effect 

2  The  Austrian  vessel  Thetis  was  captured  March  S,  1801.  twenty-nine  days 
after  the  siipiin^  of  the  treaty  of  Luneville,  hut  eight  days  before  the  date  of 
the  ratification  of  the  treaty.  The  vessel  was  restored.  La  Thetis,  Conseil 
des  Prises,  1  Pistoye  et  Duverdy.  148  (1802). 

Preliminaries  of  peace  between  France  and  England  were  signed  at  London 
October  1,  1801,  and  ratifications  exchanged  October  10.  It  was  provided  that 
as  soon  as  the  ratifications  were  exchanged  sincere  amity  would  be  re-estab- 
lished and  that  every  conquest  that  might  talie  place  after  such  exchange 
would  be  regarded  as  void.  It  was  further  provided,  to  avoid  disputes  re- 
specting prizes  taken  after  the  signature  of  the  preliminary  articles,  that 
prizes  taken  after  the  lapse  of  certain  periods  after  the  exchange  of  ratifica- 
tions should  be  restored.  These  periods  varied  from  12  days  for  the  Channel 
to  five  months  for  East  Indian  waters.  Two  British  vessels  were  seized  by 
the  French  before  the  expiration  of  the  treaty  periods  and  sought  to  annul 
the  capture  on  the  ground  that  the  captors  had  knowledge  of  the  treaty.  The 
French  Prize  Council  decided  that  when  a  treaty  of  peace  fixes  the  periods  of 
time  after  which  prizes  will  no  longer  be  valid  absolute  ignorance  of  the  peace 
is  not  indispensable  to  the  validity  of  a  prize  talven  before  the  expiration  of 
the  period  stated ;  that  within  the  period  in  which  prizes  can  still  be  legally 
made  the  presumption  of  ignorance  of  peace  is  one  of  law  and  it  cannot  be 
rebutted  except  by  complete  proof  that  the  captor  has  had  positive  knowledge 
of  the  peace ;  that  such  notice  must  be  certain  and  admitting  of  no  doubt ; 
it  cannot  result  from  oral  information  nor  even  unauthenticated  documents 
furnished  by  the  enemy ;  it  must  emanate  from  the  government  of  the  cap- 
tor although  it  may  come  througli  the  channel  of  the  enemy  authorities  by  vir- 
tue of  special  and  official  instructions.  On  these  grounds  the  Prize  Council 
condemned  Le  Porcher  but  restored  La  Nymphe.  La  Bellone  contre  Le  Porch- 
er.  La  Petite-Renomniee  contre  La  Nymphe,  French  Prize  Council,  1  Pistoye  et 
Duverdy,  149  (1803). 

3  On  the  effect  of  the  sentences  of  the  prize  tribunals  of  France,  pronounced 
on  vessels  carried  into  neutral  ports,  the  Editor  talies  this  opportunity  of  in- 
serting the  recent  (August  7,  1807)  decision  of  the  Court  of  Appeal  in  the  case 
of  The  Henric  and  Maria,  Baar. 

From  the  decision  of  the  High  Court  of  Admiralty  in  that  case  (4  C.  Rob. 
43),  upholding  such  a  title  under  the  circumstances  and  considerations  there 
noticed,  an  appeal  was  prosecuted,  and  two  other  questions  of  the  same  kind 


Ch.  19)  TERMINATION    OP    WAR  1099 

of  quieting  all  titles  of  possession  arising  from  the  war;  and  if  the 
vessel  has  been  transferred  to  the  subject  of  another  country,  he  also 
will  be  entitled  to  the  same  benefit  from  the  treaty  as  the  captor  him- 
self would  have  been,  if  he  had  continued  in  possession.  It  is  admit- 
ted that  as  to  the  enemy  it  would  have  this  effect,  and  that  it  would 
not  be  lawful  to  look  back  beyond  the  general  amnesty  to  examine 
the  title  of  his  possession.  If  his  property  is  transferred,  the  pur- 
chaser must  also  be  entitled  to  the  benefit  of  the  same  considerations, 
for  otherwise  it  could  not  be  said  that  the  intervention  of  peace  would 
have  the  effect  of  quieting  the  possession  of  the  enemy ;  because,  if 
the  neutral  purchaser  was  to  be  dispossessed,  he  would  have  a  right 
to  resort  back  to  the  belligerent  seller,  and  demand  compensation  from 
him.  I  am  of  opinion,  therefore,  that  the  intervention  of  peace  has 
put  a  total  end  to  the  claim  of  the  British  proprietor,  and  that  it  is  no 
longer  competent  to  him  to  look  back  to  the  enemy's  title,  either  in 
his  own  possession,  or  in  the  hands  of  neutral  purchasers.  As  to  any 
effect  of  the  new  war,  though  that  may  change  the  relation  of  those 
who  are  parties  to  it,  it  can  have  no  effect  on  neutral  purchasers,  who 
stand  in  the  same  situation  as  before.  Those  purchasers,  though  no 
parties  to  the  treaty,  are  entitled  to  the  full  benefit  of  it,  because  they 
derive  their  title  from  those  who  are.     *     *     * 


THE  NEUSTRA  SENORA  DE  LOS  DOLORES. 
(High  Court  of  Admiralty,  1809.     Edwards,  60.) 

This  was  the  case  of  a  Spanish  ship  which  had  been  captured  be- 
fore Spanish  hostilities,  and  restored  with  costs  and  damages ;  but  no 
further  proceedings  took  place  at  the  time,  in  consequence  of  the  break- 
ing out  of  the  war  between  the  two  countries.  An  application  was  now 
made  to  the  court  for  a  reference  to  the  registrar  and  merchants,  on 
the  ground  that  hostilities  having  ceased,  the  Spanish  claimant  was 
entitled  to  the  benefit  of  the  former  decree  for  costs  and  dam- 
ages.    *     *     * 

Sir  William  Scott.  I  am  clearly  of  the  opinion  that  the  objection 
is  not  sustainable ;    it  is  true  that  the  intervention  of  hostilities  puts 

were  brought  from  Vice  Admiralty  Courts,  in  the  cases  of  The  Gluclicke  Peter 
and  The  .Tonge  Jan. 

On  August  7,  1807,  the  judgment  of  the  Court  of  Appeal  was  delivered  by 
the  Master  of  the  Rolls  (Sir  William  Grant),  to  the  following  effect: 

"This  case  involves  a  question  as  to  the  validity  of  sentences  of  condemna- 
tion pronounced  in  a  belligerent  country  on  prizes  carried  into  neutral  ports. 
There  was  some  difference  of  opinion  among  the  members  of  the  board,  be- 
fore whom  the  case  was  originally  argued.  But  it  appeared  to  me  that  the 
acknowledged  practice  of  this  country  must  have  the  effect  of  making  those 
sentences  valid,  whilst  that  practice  continued.  For  there  could  be  no  equity, 
on  which  we  could  deny  the  validity  of  that  title  to  neutrals  purchasing  of 
the  enemy,  at  the  same  time  that  they  were  invited  to  take  them  from  our- 
selves." 


1100  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF   WAR  (Part  3 

the  property  of  the  enemy  in  such  a  situation  that  confiscation  may 
ensue,  but  unless  some  step  is  taken  for  that  purpose,  unless  there  is 
some  legal  declaration  of  the  forfeiture,  the  right  of  the  owner  re- 
vives on  the  return  of  peace.  This  is  an  acknowledged  principle  in 
the  Courts  of  Common  Law,  borrowed,  in  all  probability,  from  the 
general  law  of  nations,  and  I  see  no  reason  for  any  distinction  here. 
We  know  that,  in  captures  at  sea,  the  general  law  is,  that  the  bring- 
ing infra  praesidia,  and  even  a  sentence  of  condemnation,  is  necessary 
to  convert  the  property;  and  although  in  some  instances  positive  in- 
stitutions have  determined  that  a  possession  of  a  certain  number  of 
hours  is  sufficient,  yet  this  proceeds  upon  the  ground  that  a  possession 
of  so  many  hours  is  an  evidence  of  firm  possession.  Here  there  was 
no  bodily  possession,  nor  indeed  could  there  be;  but  still  some  judi- 
cial act  might  have  been  done  declaratory  of  the  forfeiture  to  the 
crown  of  those  rights  which  vested  in  the  claimant  under  the  decree  for 
costs  and  damages.  It  appears,  however,  that  no  step  was  taken  for 
this  purpose  on  the  part  of  the  crown;  and  I  am,  therefore,  of  opin- 
ion that  the  rights  of  the  Spanish  proprietor  do  revive,  and  I  refer 
it  to  the  registrar  and  merchants  to  ascertain  the  amount  of  the  com- 
pensation to  which  he  is  entitled  under  the  decree. 


THE  SPEEDWELL. 

BAIN  et  al.  v.  THE  SPEEDWELL  et  al. 

(Federal  Court  of  Appeals  of  the  United  States,  1784.    2  Dall.  40,  1  L.  Ed.  280.) 

This  was  an  appeal  from  the  Admiralty  of  the  State  of  Rhode  Island, 
where  the  schooner  had  been  condemned  as  prize ;  and  the  record  was 
submitted  to  the  decision  of  the  court,  without  argument.  On  the  24th 
of  May,  1784,  Griffin.  Rkad,  and  Lowell,  the  presiding  commis- 
sioners, delivered  the  following  judgment : 

By  the  Court.  It  appearing,  by  the  inspection  of  the  record,  that 
the  schooner  in  question  was  qaptured  from  the  British,  since  the  op- 
eration of  the  preliminary  articles  of  peace  (to  wit,  on  the day 

of )  the  condemnation  cannot  be  sustained. 

Decree  reversed. 


THE  PROTECTOR. 

(Supreme  Court  of  the  United  States,  1871.    12  Wall.  700,  20  L.  Ed.  463.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  District 
of  Louisiana. 

This  was  a  motion  by  Mr.  P.  Phillips  to  dismiss  an  appeal  from  a 
decree  of  the  Circuit  Court  of  the  United  States  in  the  Southern  Dis- 
trict of  Alabama.     *     *     *     The  ground  of  this  present  motion  was 


Ch.    19)  TERMINATION  OP   WAR  1101 

that  more  than  five  years,  excluding  the  time  of  the  rebellion,  elapsed 

after  the  rendering  of   the   decree,  before  the  appeal  was  brought. 
*     *     * 

In  Hanger  v.  Abbott  *  it  was  held  that  the  statute  of  limitations  did 
not  run,  during  the  rebellion,  against  citizens  of  states  adhering  to  the 
national  government  having  demands  against  citizens  of  the  insurgent 
states.  And  the  question  of  course  was  whether,  making  allowance 
for  the  suspension  of  time  produced  by  the  rebellion,  the  appeal  was 
or  was  not  in  season.     *     *     * 

The  Chief  Justice;  [Chase]  delivered  the  opinion  of  the  court.^ 

The  question,  in  the  present  case  is,  when  did  the  rebellion  begin 
and  end?  In  other  words,  what  space  of  time  must  be  considered  as 
excepted  from  the  operation  of  the  statute  of  limitations  by  the  war  of 
the  rebellion? 

Acts  of  hostility  by  the  insurgents  occurred  at  periods  so  various, 
and  of  such  different  degrees  of  importance,  and  in  parts  of  the  coun- 
try so,  remote  from  eacji  other,  both  at  the  commencement  and  the 
close  of  the  late  Civil  War,  that  it  would  be  difficult,  if  not  impossible, 
to  say  on  what  precise  day  it  began  or  terminated.  It  is  necessary, 
therefore,  to  refer  to  some  public  act  of  the  political  departments  of 
the  government  to  fix  the  dates ;  and,  for  obvious  reasons,  those  of 
the  executive  department,  which  may  be,  and,  in  fact,  was,  at  the  com- 
mencement of  hostilities,  obliged  to  act  during  the  recess  of  Congress, 
must  be  taken. 

The  proclamation  of  intended  blockade  by  the  President  may,  there- 
fore, be  assumed  as  marking  the  first  of  these  dates,  and  the  procla- 
mation that  the  war  had  closed,  as  marking  the  second.  But  the 
war  did  not  begin  or  close  at  the  same  time  in  all  the  states.  There 
were  two  proclamations  of  intended  blockade:  The  first  of  the  19th 
of  April,  1861  (12  Stat.  1258),  embracing  the  states  of  South  Carolina, 
Georgia,  Alabama,  Florida,  Mississippi,  Louisiana  and  Texas;  the 
second,  of  the  27th  of  April,  1861  (12  Stat.  1259),  embracing  the  states 
of  Virginia,  and  North  Carolina;  and  there  were  two  proclamations 
declaring  that  the  war  had  closed ;  one  issued  on  the  2d  of  April, 
1866  (14  Stat.  811),  embracing  the  states  of  Virginia,  North  Carolina, 
South  Carolina,  Georgia,  Florida,  Mississippi,  Tennessee,  Alabama, 
Louisiana,  and  Arkansas,  and  the' other  issued  on  the  20th  of  August, 
1866  (14  Stat.  814),  embracing  the  state  of  Texas. 

In  the  absence  of  more  certain  criteria,  of  equally  general  applica- 
tion, we  must  take  the  dates  of  these  proclamations  as  ascertaining 
the  commencement  and  the  close  of  the  war  in  the  states  mentioned 
in  them.  Applying  this  rule  to  the  case  before  us,  we  find  that  the 
war  began  in  Alabama  on  the  19th  of  April,  1861,  and  ended  on  the 

*  6  Wall.  532,  18  L.  Ed.  939  (1867)  ;  The  Protector,  9  Wall.  687,  19  L.  Ed. 
812  (1869). 

5  The  statement  of  facts  is  abridged. 


It02  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF  WAR         (Part  3 

2d  of  April,  1866.  More  than  five  years,  therefore,  had  elapsed  from 
th£  close  of  the  war  till  the  17th  of  May,  1871,  when  this  appeal 
was  brought.    The  motion  to  dismiss,  therefore,  must  be  granted.® 


THE  JOHN. 

(British-American   Claims  Commission  of  1853.     Report  of  Commission 

[1856]  427.) 

In  the  early  part  of  the  year  1815,  the  American  schooner  John 
sailed  from  the  port  of  Matanzas,  in  the  island  of  Cuba,  with  a 
cargo  of  molasses,  coffee,  etc.,  for  the  port  of  Portsmouth,  in  the 
state  of  New  Hampshire. 

On  the  5th  day  of  March,  in  the  same  year,  when  in  latitude  31° 
40'  north,  and  longitude  78°  10'  west  from  the  meridian  of  Greenwich, 
she  fell  in  with  the  British  ship-of-war  Talbot,  Lieutenant  Maudesley, 
acting  commander,  and  was  captured  and  taken  possession  of  as  a 
prize  of  war. 

She  was  then  put  in  charge  of  a  prize  master  and  crew  from  the 
Talbot,  and  taken  in  tow  by  that  vessel  for  Jamaica.  On  the  11th 
of  March,  while  the  two  vessels  were  yet  in  company,  they  made  land, 
which  the  officers  commanding  erroneously  supposed  to  be  Atwood's 
Key.  On  the  12th,  they  made  what  they  supposed  to  be  the  French 
Keys,  and  subsequently,  what  they  took  to  be  the  place  called  the 
Hogsties,  and  shaped  and  continued  their  course  as  if  these  supposi- 
tions were  correct,  although  assured  of  their  mistake  by  Beck,  the  de- 
posed master  of  the  John. 

In  a  few  hours  the  schooner  was  ashore  at  a  place  called  Point 
Mulas,  in  the  island  of  Cuba,  and  the  Talbot  was  saved  from  the 
same  fate  only  by  hastily  putting  about,  and  standing  out  to  sea.  The 
next  day  the  crew  were  taken  from  the  wreck,  which  was  abandoned, 
and  totally  lost. 

On  arriving  at  Jamaica,  the  master  and  crew  were  detained  as 
prisoners  of  war.  On  the  29th  of  March,  news  of  the  ratification  of 
the  treaty  of  peace  having  been  received,  they  were  released.  Cap- 
tain Beck,  the  master,  thereupon  addressed  a  letter  to  Lieutenant 
Maudesley,  demanding  his  papers,  and  was  by  that  officer  referred  to 
the  Vice  Admiralty  Court  at  Kingston ;  but,  upon  application  there, 
he  was  informed  that  neither  the  log-book  nor  the  papers  of  the  John 
had  been  lodged  there.  Whereupon  he,  with  others  of  the  crew,  made 
protest,  at  Kingston,  upon  the  foregoing  state  of  facts. 

On  returning  to  the  United  States  a  more  specific  and  detailed  pro- 

e  See  Brown  v.  Hiatts,  15  Wall.  177,  21  L.  Ed.  128  (1872). 

In  tlie  case  of  Philips  v.  Hatch,  1  Dillon,  571,  Fed.  Gas.  No.  11,094  (1871), 
the  United  States  Circuit  Court  for  Iowa  held  that  a  contract  entered  into  in 
the  spring  of  1866  between  a  resident  of  the  state  of  Iowa  and  a  resident  of 
the  state  of  Texas,  was  void  as  a  contract  between  enemies. 


Ch.  19)  TERMINATION    OF    WAR  1103 

test  was  made,  and  subsequently  the  owners  of  the  schooner  com- 
inenced  a  suit  in  admiralty  against  Lieutenant  Maudesley  for  the  value 
of  the  vessel  and  cargo,  which  was  finally  decided  against  them  by 
Sir  William  Scott,  on  December  18,  1818,  on  the  ground  that  the 
commander  of  a  vessel  of  war,  when  notice  has  not  reached  him  of  the 
conclusion  of  peace,  is  not  personally  liable  for  such  a  capture. 

The  owners  had  incurred  heavy  expenses  in  the  prosecution  of  this 
suit,  and,  owing  to  this  circumstance  and  various  adverse  events  per- 
sonal to  them,  delayed  for  many  years  making  application  to  the  United 
States  government,  as  they  should  originally  have  done.  Application 
was  at  length  made,  and  the  claim  was  earnestly  urged  on  the  atten- 
tion of  the  British  government  by  Mr.  Lawrence,  while  minister  at 
London. 

It  is  as  yet  unsettled ;  and  is  now  presented  for  the  consideration  and 
final  action  of  this  commission.     *     *     * 

Upham,  United  States  Commissioner.  In  the  able  argument  ad- 
dressed to  us  by  her  Majesty's  counsel,  the  British  agent,  some  stress 
has  been  laid  on  the  decision  of  Sir  William  Scott  (2  Dodson,  336) 
on  a  suit  brought  against  the  commander  of  the  Talbot  for  the  capture 
of  the  John ;  and  that  authority  is  considered  as  conclusive  of  this 
claim. 

But,  in  that  case,  the  learned  judge  expressly  declined  determining 
whether  or  not  the  claimant  had  a  remedy  elsewhere ;  he  only  decided, 
for  reasons  which  he  gives  at  length,  that  the  captor  should  be  personally 
exonerated. 

On  determining  this  question,  he  says : 

"I  certainly  go  no  further  than  the  expressions  used  by  me  war- 
rant, that  this  individual  captor  is  not  liable  to  this  individual  suf- 
ferer." 

"That  does  not  exclude  a  liability  elsewhere,  if  it  exists.  Whether 
there  be  such  a  liability  in  the  government  is  a  question  I  am  not  called 
upon  to  examine ;  I  have  neither  the  proper  parties  nor  the  evidence 
before  me.  It  is  sufficient  to  observe,  upon  that  matter,  that  there  may 
bt  such  a  liability ;  there  doubtless  would  be,  if  the  government  had 
not  made  due  diligence  in  advertising  the  cessation  of  hostilities,  in 
the  quarters  and  at  the  periods  stipulated,  if  that  were  practicable." 

"Where  property,  captured  after  peace  has  taken  effect,  is  lost  by . 
mere  chance,  without  any  fault  on  the  part  of  the  captor,  whether  an 
obligation  is  incurred  to  restore  in  value  what  has  been  taken  away  by 
mere  misfortune,  the  terms  of  the  contract  have  not  specifically  pro- 
vided for;  and  just  principle  seems  to  point  another  way;  that,  how- 
ever, is  not  the  question  before  me  for  my  decision."  Schooner  John, 
Beck,  Master,  2  Dodson,  336. 

This  case  conflicts  with  the  opinion  of  the  same  learned  judge  in 
The  Mentor,  1  Robinson,  183.  He  there  says :  '.'that  the  seizure  of  a 
vessel  is  a  belligerent  right  which  is  not  exercisable  in  time  of  peace. 
When  there  is  peace,  a  seizure,  jure  belli,  is  a  wrongful  act,  and  the 


1104  RIGHTS  AND   DUTIES  OF  NATIONS  IN  TIME  OF   WAR         (Part  3 

injured  party  is  entitled  to  restitution  and  compensation."  He  further 
says:  "It  is  not  so  clear  that  the  captor  is-Hable  to  costs  and  damages, 
where  peace  has  not  been  notified.  The  better  opinion  seems  to  be, 
that  the  captor  is  liable  to  costs  and  damages,  and  entitled  to  indemnifi- 
cation from  his  government,  whose  duty  it  was  to  have  given  notice." 

Both  these  cases  sustain  this  point,  that,  when  there  is  a  want  of 
due  diligence,  in  advertising  the  cessation  of  hostilities,  the  injured 
party  is  clearly  entitled  to  indemnification ;  and  Vattel  says,  also,  "that 
those  who  shall,  through  their  own  fault,  remain  ignorant  of  the  pub- 
lication of  the  truce,  would  be  bound  to  repair  any  damage  they  may 
have  caused  contrary  to  its  tenor."    Vattel,  bk.  3,  ch.  16. 

There  seems  to  be  no  doubt  that  the  principle,  thus  laid  down,  is 
correct.  But  what  constitutes  due  diligence,  under  such  circumstances, 
is  a  question  at  times  of  difficult  determination.  It  is,  therefore,  ex- 
ceedingly desirable  that  it  should  be  settled  by  the  parties  ,in  advance. 
Vattel  says,  in  the  same  section,  "in  order  as  far  as  possible  to  avoid 
any  difficvilty,"  on  this  point,  "it  is  usual  with  sovereigns,  in  their 
truces,  as  well  as  treaties  of  peace,  to  assign  different  periods  for  the 
cessation  of  hostilities  according  to  the  situation  and  distance  of  places." 

The  question  then  arises,  whether  this  assignment  of  different  peri- 
ods for  the  cessation  of  hostilities,  according  to  the  situation  and  dis- 
tance of  places,  was  not  designed  by  the  parties  to  establish  the  time  to 
be  holden  as  reasonable  notice  within  such  limits.  Such  clearly  is  the 
ground  assigned  by  Vattel  for  such  provisions-  in  treaties.  What  would 
be  reasonable,  can  be  determined  just  as  well  before  the  treaty  as 
after,  and  the  whole  tenor  of  the  treaty,  in  this  case,  goes  to  show  that 
the  contracting  parties  had  this  question  in  view,  in  establishing  the 
various  periods  within  which  peace  should  take  place  in  different  lo- 
calities. 

The  treaty  provides  that,  "immediately  after  the  ratification,  orders 
shall  be  sent  to  the  armies,  squadrons,  officers,  subjects,  and  citizens 
of  the  two  powers,  to  cease  from  all  hostilities ;  and,  to  prevent  all 
causes  of  complaint  which  may  arise  on  account  of  prizes,  which  may 
be  taken  at  sea  after  said  ratification,  it  is  reciprocally  agreed,  that  all 
vessels  and  effects,  which  may  be  taken  after  the  space  of  twelve  days 
from  the  said  ratification,  upon  all  parts  of  the  coast  of  North  America, 
from  the  latitude  of  23°  north,  to  the  latitude  of  50°  north,  and  as  far 
eastward  in  the  Atlantic  Ocean  as  the  36°  of  west  longitude  from  the 
meridian  of  Greenwich,  shall  be  restored  on  each  side;  that  the  time 
shall  be  thirty  days  in  all  other  parts  of  the  Atlantic  Ocean,  north  of 
the  equator,  and  the  same  time  for  the  British  and  Irish  channels,  for 
the  Gulf  of  Mexico,  and  all  parts  of  the  West  Indies ;  forty  days  for 
the  North  Seas,  for  the  Baltic,  and  for  all  parts  of  the  Mediterranean; 
sixty  days  for  the  Atlantic  Ocean,  south  of  the  equator,  as  far  as  the 
latitude  of  the  Cape  of  Good  Hope ;  ninety  days  for  every  part  of  the 
world  south  of  the  equator,  and  one  hundred  and  twenty  days  for  all 


Ch.  19)  TERMINATION   OF   WAR  1105 

the  other  parts  of  the  world  without  exception."  8  United  States 
.Statutes  at  Large,  p.  219.  These  several  periods  were  undoubtedly 
agreed  upon  as  equivalent  to  notice  that  peace  existed  within  the  pre- 
scribed limits.  It  cannot  be  supposed  that  the  contending  parties  de- 
signed to  append  to  these  periods  a  further  indefinite,  uncertain  time, 
as  to  what  should  constitute  due  diligence  in  giving  notice,  or  to  re- 
strain or  limit  the  fact  in  its  consequences,  that  peace  should  exist  at 
the  times  named. 

After  the  periods  thus  agreed  upon,  the  obligation  to  cease  from 
hostilities  was  imperative. 

Such  being  the  case,  we  have  the  true  starting-point  from  which  to 
consider  the  question  of  the  respective  rights  of  the  parties.  It  is 
manifest  that  collisions  might  then  occur  without  the  imputation  of 
any  willful  wrong  in  the  violation  of  the  compact  entered  into.  The 
injury  would,  however,  exist,  and  the  actual  loss  sustained  should,  on 
every  principle  of  equity  and  justice,  as  well  as  of  compact,  be  fully 
met. 

The  stipulation  was,  therefore,  entered  into  by  the  parties,  that  "all 
vessels  and  effects"  that  should  be  taken  after  the  several  times  speci- 
fied "should  be  restored."  The  question  then  arises,  what  interpreta- 
tion we  shall  place  on  this  provision?  Does  it  mean  that  vessels  and 
effects  captured  shall  be  returned  in  specie,  or  that  the  identical  prop- 
erty merely  shall  be  returned,  and  where  this  has  become  impractica- 
ble that  no  restitution  or  satisfaction  shall  be  had?  I  cannot  believe 
that  such  was  the  intent  of  the  parties.  They  acknowledge  them- 
selves bound  by  a  constructive  notice  of  the  peace,  and  it  was  their 
own  fault  that  they  did  not  take  time  enough,  or  did  not  use  diligence 
enough  to  give  actual  notice  of  the  peace  "to  their  armies,  squadrons, 
officers,  subjects,  and  citizens,"  as  was  specially  provided  should  be 
done  by  the  treaty. 

Under  such  circumstances,  the  doctrine  of  Vattel,  adopted  by  Sir 
William  Scott,  applies,  "that  those  who  through  their  own  fault  re- 
main ignorant  of  the  publication  of  the  truce  are  bound  to  repair  any 
damage  they  may  have  caused  contrary  to  its  tenor." 

The  party  injured  is  in  the  same  situation  as  a  neutral  whose  ves- 
sel has  been  seized  and  destroyed  as  the  property  of  a  hostile  power, 
where  it  is  holden  the  neutral  can  only  be  justified  by  a  full  restitu- 
tion in  value.    1  Wildman,  vol.  2,  p.  175. 

There  is  no  other  measure  of  damage  that  justly  meets  the  require- 
ments of  the  case.  The  treaty  provides  not  only  that  "all  vessels," 
but  also  "their  effects,"  which  may  be  taken,  after  a  certain  specified 
number  of  days,  within  certain  described  limits,  shall  be  restored  on 
either  side.  But  if  the  effects  of  a  vessel,  consisting  of  provisions  or 
other  articles,  are  taken  and  consumed,  or  are  otherwise  disposed  of,  so 
they  cannot  be  restored  specifically,  it  will  hardly  be  contended  that 
no  remuneration  is  to  be  made. 
Scon  Int.Law— 70 


1106  RIGHTS   AND   DUTIES   OP   NATIONS   IN   TIME   OF  WAR         (Part  3 

If  this  be  so,  the  rule  would  equally  follow  in  relation  to  the  vessel. 
Restoration  and  restitution  are  synonymous.  One  meaning  of  the 
word  "restore,"  as  laid  down  by  Webster  is,  "to  make  restitution  or 
satisfaction  for  a  thing  taken,  by  returning  something  else,  or  some- 
thing of  different  value,"  and  this  is  the  meaning  which  should  be 
rightfully  attached  to  the  word  in  the  treaty. 

I  do  not  understand  that  this  is,  in  reality,  denied ;  but  the  position 
is  taken  by  Great  Britain  in  this  case,  that  she  is  relieved  from  re- 
storing the  vessel,  for  the  reason  that  it  was  subsequently  cast  away 
and  lost  by  the  act  of  God,  and  no  one  is  accountable. 

If  the  case  can  be  brought  within  this  principle  the  excuse  might 
avail,  but  there  are  circumstances  connected  with  it  that  preclude  such 
defence.  No  one  can  plead  the  destruction  of  property  as  the  act  of 
God,  who  is  wrongfully  in  the  use  and  control  of  such  property.  He 
is  a  wrong-doer  from  the  outset ;  he  has  converted  the  property  from 
the  instant  of  possession,  and  the  subsequent  calamity  Vv'hich  may  hap- 
pen, however  inevitable  it  may  be,  is  no  excuse  for  its  loss. 

The  John  was  in  the  rightful  pursuit  of  a  lawful  voyage,  at  a  time  and 
place  when  peace  existed  by  the  express  stipulations  of  the  parties,  after 
taking  such  period  for  notice  as  they  held  that  the  case  required. 

She  had  pursued  her  course  northwardly  some  four  or  five  hundred 
miles  out  from  harbor,  on  her  way  to  her  destined  port.  She  was 
there  seized,  placed  under  the  charge  of  new  men,  and  her  course  was 
directly  reversed,  until  she  was  taken  back  to  the  West  Indies,  and 
through  mismanagement,  or  misadventure,  was  run  on  shore  and  lost. 

It  may  have  been  the  ordinary  accident  of  the  seas,  or  may  not; 
but,  in  any  event,  she  was  taken  there  without  right,  and  subjected  to 
risks  to  which  she  was  not  legally  and  justly  liable.  The  plea  that 
she  was  lost  by  the  act  of  God  is  not,  under  such  circumstances,  admis- 
sible. The  vessel  itself  cannot  be  restored,  but  such  compensation  and 
restitution  should  be  made  as  the  nature  of  the  case  admits  of. 

In  the  argument,  considerable  stress  has  been  laid  on  a  quotation  in 
Kent  and  Wheaton,  said  to  be  founded  on  Grotius,  that  where  collisions 
arise  after  peace  exists,  the  governments  "are  not  amenable  in  dam- 
ages, but  it  is  their  duty  to  restore  what  has  been  captured,  but  not 
destroyed."  The  citation  from  Grotius  is,  however,  erroneous.  He 
merely  says,  in  the  section  referred  to,  that  if  any  acts  be  done,  in 
violation  of  the  truce,  before  notice  can  be  given,  "the  government 
will  not  be  liable  to  punishment,  but  the  contracting  parties  will  be 
bound  to  make  good  the  damage."    Whewell's  Grotius,  lib.  3,  c.  21,  §  5. 

What  shall  be. the  precise  effect,  as  a  matter  of  notice,  where  differ- 
ent periods  of  time  are  stipulated  in  which  peace  shall  take  place, 
does  not  seem  to  have  been  fully  considered  and  settled.  If  it  shall  be 
held  as  an  acknowledgment  of  notice,  then  every  subsequent  act  of 
violation  of  it  is  the  act  of  a  wrong-doer,  and  full  compensation  fol- 
lows of  necessity.    I  can  see  no  possible  mode  of  avoiding  the  justness 

Scott  Int.Law 


Ch.  19)  TERMINATION    OF    WAR  1107 

or  soundness  of  the  construction  at  which  we  have  arrived,  but  think 
it.  should  prevail  on  every  ground  of  public  policy  and  right  interpre- 
tation of  international  compacts  of  this  character. 

I  am  happy  to  say  that  my  colleague,  though  he  hesitates  somewhat 
as  to  the  views  presented,  waives  his  objection  to  the  allowance  of  the 
claim,  except  on  the  score  of  interest,  and  this  question  is  to  be  sub- 
mitted to  the  umpire. 

Interest  was  allowed. 


THE  ELBE. 
(French  Prize  Court,  1919.    Journal  Officiel,  November  7,  1919,  p.  12507.) 

In  the  name  of  the  French  people  the  Prize  Court  has  rendered  the 
following  decision : 

Between,  on  the  one  hand,  the  proprietor,  captain  and  the  proprietor 
of  the  cargo  of  the  German  steamer  Elbe,  captured  with  its  cargo,  on 
February  16,  1919,  in  the  Baltic  Sea  by  the  French  torpeodo  boat 
Oriflamme,  and  on  the  other  hand,  the  Minister  of  the  Navy,  acting 
in  the  name  of  the  State  and  on  behalf  of  the  rightful  claimants  to 
the  proceeds  of  the  prize,  in  conformity  with  the  laws  and  regulations 
in  force:     *     *     * 

Considering  the  Armistice  Convention  concluded  with  Germany  on 
November  11,  1918; 

Having  heard  M.  Henri  Fromageot,  member  of  the  Court,  in  his 
report,  and  M.  Gauthier,  member  of  the  Co'urt,  replacing  M.  Chardenet, 
Commissioner  of  the  Government,  who  is  prevented  from  attending,  in 
his  statements  in  support  of  his  aforementioned  motions ; 

After  having  duly  deliberated  thereon : 

Whereas,  the  Armistice  concluded  with  Germany  on  November  11, 

1918,  stipulates: 

"Article  XX.  Immediate  cessation  of  all  hostilities  on  sea  and  pre- 
cise indication  of  the  situation  and  the  movements  of  German  vessels. 
Notice  given  to  the  neutrals  of  the  freedom  of  navigation  granted  to 
the  vessels  of  war  and  of  commerce  of  the  Allied  and  Associated  Pow- 
ers in  all  territorial  waters  without  raising  the  question  of  neutrality." 

"Article  XXVI.  Maintenance  of  the  blockade  of  the  Allied  and 
Associated  Powers  under  the  present  conditions,  the  German  vessels 
of  commerce  found  on  the  sea  remaining  subject  to  capture." 

Whereas,  according  to  the  minute  drawn  up  at  sea  on  February  16, 

1919,  the  steamer  Elbe  of  ^f^l'^  tons,  of  the  port  of  Hamburg,  bound 
from  Liibeck  to  Memel,  with  a  full  cargo  of  1396  tons  of  salt,  was 
captured  tog-ether  with  its  cargo,  in  the  Baltic  Sea,  at  12°  27'  east 
longitude  (Greenwich)  and  54°  SCf  north  latitude  by  the  French  tor- 
pedo boat  Oriflamme ; 

Whereas,  it  appears  from  the  ship's  papers  and  especially  from  an 
authentic  extract  of  the  certificate  of  registry  of  the  said  vessel,  dated 


1108  RIGHTS   AND   DUTIES   OF   NATIONS   IN   TIME   OF  WAR         (Part  3 

at  Hamburg  July  22,  1890,  that  the  said  steamer  Elbe  was  German 
and  belonged  to  the  "Vereinigte  Bugsier  und  Frachtschiffahrt  Gesell- 
schaft"  of  Hamburg; 

Whereas,  it  appears,  on  the  other  hand,  from  the  charter-party  dated 
at  Hamburg  February  1,  1919,  and  from  the  bill  of  lading  dated  at 
Liibeck  February  14,  1919,  that  the  cargo  was  shipped  by  a  Mr.  Franz 
Heinrich  of  Hamburg  to  Mr.  Eduard  Krause  of  Memel,  whose  Ger- 
man nationality  is  not  disputed ; 

Whereas,  for  these  reasons  the  said  steamer  Elbe  together  with  its 
cargo  are  a  good  prize  as  being  an  enemy  vessel  and  cargo; 

Whereas,  the  German  authorities  by  a  note  addressed  on  April  20, 
1919,  to  the  President  of  the  Permanent  Interallied  Armistice  Commis- 
sion and  likewise  the  "Vereinigte  Bugsier  und  Frachtschiffahrt  Gesell- 
schgft"  and  Mr,  Eduard  Krause  dispute  the  legality  of  the  capture, 
maintaining  that  the  Armistice  brought  about  the  cessation  of  hostilities 
and  that  the  stipulation  of  the  Armistice  Convention  with  Germany 
of  November  11,  1918,  concerning  the  maintenance  of  the  blockade 
of  Germany  did  not  apply  to  the  Baltic  Sea  where,  according  to  the 
claimants,  this  blockade  did  not  exist; 

But  whereas,  the  said  Armistice,  while  providing  for  the  cessation 
of  hostilities  at  sea,  expressly  maintained  in  Article  XXVI,  above 
quoted,  the  right  of  capturing  the  German  vessels  found  at  sea,  with- 
out any  condition  of  provenience,  destination  or  place  of  seizure; 

Whereas,  only  the  regular  issuance  of  a  pass  by  the  competent  al- 
lied authorities  could  exempt  from  capture ; 

Whereas,  the  Elbe  had  not  received  any  pass  from  the  allied  au- 
thorities and  whereas,  it  appears  from  the  documents  appended  to  the 
dossier  and  from  the  examination  of  the  captain  himself  that  no  au- 
thorization had  been  granted  to  the  said  vessel  by  the  said  authori- 
ties ;     *     *     * 

Decides : 

The  capture  of  the  German  steamer  Elbe  together  with  its  acces- 
sories, fittings  and  equipment,  as  well  as  of  its  cargo,  is  declared  good 
and  valid  and  the  net  proceeds  thereof  are  to  be  paid  to  the  rightful 
claimants  in  conformity  with  the  laws  and  regulations  in  force. 


APPENDIX  I 


THE  COVENANT  OF  THE  LEAGUE  OF  NATIONS » 


The  High  Contracting  Parties  Agree  to  this  Covenant  of  the  League 
of  Nations. 

In  order  to  promote  international  co-operation  and  to  achieve  in- 
ternational peace  and  security  by  the  acceptance  of  obligations  not  to 
resort  to  war,  by  the  prescription  of  open,  just  and  honorable  relations 
between  nations,  by  the  firm  establishment  of  the  understandings  of 
international  law  as  the  actual  rule  of  conduct  among  governments, 
and  by  the  maintenance  of  justice  and  a  scrupulous  respect  for  all 
treaty  obligations  in  the  dealings  of  organized  peoples  with  one  another. 

Article  1 

The  original  Members  of  the  League  of  Nations  shall  be  those  of 
the  Signatories  which  are  named  in  the  Annex  to  this  Covenant  and 
also  such  of  those  other  States  named  in  the  Annex  as  shall  accede 
without  reservation  to  this  Covenant.  Such  accession  shall  be  effected 
by  a  Declaration  deposited  with  the  Secretariat  within  two  months  of 
the  coming  into  force  of  the  Covenant.  Notice  thereof  shall  be  sent 
to  all  other  Members  of  the  League. 

Any  fully  self-governing  State,  Dominion  or  Colony  not  named  in 
the  Annex,  may  become  a  Member  of  the  League  if  its  admission  is 
agreed  to  by  two-thirds  of  the  Assembly,  provided  that  it  shall  give 
effective  guarantees  of  its  sincere  intention  to  observe  its  international 
obligations,  and  shall  accept  such  regulations  as  may  be  prescribed 
by  the  League  in  regard  to  its  military,  naval,  and  air  forces  and  arma- 
ments. 

Any  Member  of  the  League  may,  after  two  years'  notice  of  its  in- 
tention so  to  do,  Avithdraw  from  the  League,  provided  that  all  its  in- 
ternational obligations  and  all  its  obligations  under  this  Covenant  shall 
have  been  fulfilled  at  the  time  of  its  withdrawal. 

1  Extract  from  the  treaty  of  peace  between  the  allied  and  associated  powers 
and  Germany,  signed  at  Versailles,  Juno  28,  1919. 

(1109) 


1110  APPENDIX   I 


Article  2 


The  action  of  the  League  under  this  Covenant  shall  be  effected 
through  the  instrumentality  of  an  Assembly  and  of  a  Council,  with  a 
permanent  Secretariat. 

Article  3 

The  Assembly  shall  consist  of  Representatives  of  the  Members  of 
the  League. 

The  Assembly  shall  meet  at  stated  intervals  and  from  time  to  time 
as  occasion  may  require  at  the  Seat  of  the  League,  or  at  such  other 
place  as  may  be  decided  upon. 

The  Assembly  may  deal  at  its  meetings  with  any  matter  within  the 
sphere  of  action  of  the  League  or  affecting  the  peace  of  the  world. 

At  meetings  of  the  Assembly  each  member  of  the  League  shall  have 
one  vote,  and  may  have  not  more  than  three  Representatives. 

Article  4 

The  Council  shall  consist  of  Representatives  of  the  Principal  Allied 
and  Associated  Powers,  together  with  Representatives  of  four  other 
members  of  the  League.  These  four  Members  of  the  League  shall  be 
selected  by  the  Assembly  from  time  to  time  in  its  discretion.  Until  the 
appointment  of  the  Representatives  of  the  four  Members  of  the  League 
first  selected  by  the  Assembly,  Representatives  of  Belgium,  Brazil, 
Spain  and  Greece  shall  be  members  of  the  Council. 

With  the  approval  of  the  majority  of  the  Assembly,  the  council  may 
name  additional  Members  of  the  League  whose  Representatives  shall 
always  be  members  of  the  Council ;  the  Council  with  like  approval  may 
increase  the  number  of  Members  of  the  League  to  be  selected  by  the 
Assembly  for  representation  on  the  Covtncil. 

The  Council  shall  meet  from  time  to  time,  as  occasion  may  require, 
and  at  least  once  a  year,  at  the  Seat  of  the  League,  or  at  such  other 
place  as  may  be  decided  upon. 

The  Council  may  deal  at  its  meetings  with  any  matter  within  the 
sphere  of  action  of  the  League  or  affecting  the  peace  of  the  world. 

Any  Member  of  the  League  not  represented  on  the  Council  shall  be 
invited  to  send  a  Representative  to  sit  as  a  member  at  any  meeting 
of  the  Council  during  the  consideration  of  matters  specially  affecting 
the  interests  of  that  Member  of  the  League. 

At  meetings  of  the  Council,  each  Member  of  the  League  represented 
on  the  Council  shall  have  one  vote,  and  may  have  not  more  than  one 
Representative. 

Article  5 

Except  where  otherwise  expressly  provided  in  this  Covenant,  or  by 
the  terms  of  the  present  Treaty,  decisions  at  any  meeting  of  the  As- 


COVENANT    OF    THE    LEAGUE    OF    NAT10"NS  HH 

sembly  or  of  the  Council  shall  require  the  agreement  of  all  the  Mem- 
bers of  the  League  represented  at  the  meeting. 

All  matters  of  procedure  at  meetings  of  the  Assembly  or  of  the 
Council,  including  the  appointment  of  Committees  to  investigate  partic- 
ular matters,  shall  be  regulated  by  the  Assembly  or  by  the  Council 
and  may  be  decided  by  a  majority  of  the  Members  of  the  League  rep- 
resented at  the  meeting. 

The  first  meeting  of  the  Assembly  and  the  first  meeting  of  the 
Council  shall  be  summoned  by  the  President  of  the  United  States  of 
America. 

Articled  6 

The  permanent  Secretariat  shall  be  established  at  the  Seat  of  the 
League.  The  Secretariat  shall  comprise  a  Secretary  General  and  such 
secretaries  and  staff  as  may  be  required. 

The  firSt  Secretary  General  shall  be  the  person  named  in  the  Annex ; 
thereafter  the  Secretary  General  shall  be  appointed  by  the  Council 
with  the  approval  of  the  majority  of  the  Assembly. 

The  secretaries  and  staff  of  the  Secretariat  shall  be  appointed  by  the 
Secretary  General  with  the  approval  of  the  Council. 

The  Secretary  General  shall  act  in  that  capacity  at  all  meetings  of 
the  Assembly  and  of  the  Council. 

The  expenses  of  the  Secretariat  shall  be  borne  by  the  members  of  the 
League  in  accordance  with  the  apportionment  of  the  expenses  of  the 
International  Bureau  of  the  Universal  Postal  Union. 

Article  7 

The  Seat  of  the  League  is  established  at  Geneva. 

The  Council  may  at  any  time  decide  that  the  Seat  of  the  League 
shall  be  established  elsewhere. 

All  positions  under  or  in  connection  with  the  League,  including  the 
Secretariat,  shall  be  open  equally  to  men  and  women. 

Representatives  of  the  Members  of  the  League  and  officials  of  the 
League  when  engaged  on  the  business  of  the  League  shall  enjoy  dip- 
lomatic privileges  and  immunities. 

The  buildings  and  other  property  occupied  by  the  League  or  its 
officials  or  by  Representatives  attending  its  meetings  shall  be  inviolable. 

Article  8 

The  Members  of  the  League  recognize  that  the  maintenance  of  peace 
requires  the  reduction  of  national  armaments  to  the  lowest  point  con- 
sistent with  national  safety  and  the  enforcement  by  common  action 
of  international  obligations. 

The  Council,  taking  account  of  the  geographical  situation  and  cir- 
cumstances of  'jach  State,  shall  formulate  plans  for  such  reduction  for 
the  consideration  and  action  of  the  several  governments. 


1112  APPENDIX  I 

Such  plans  shall  be  subject  to  reconsideration  and  revision  at  least 
every  ten  years. 

After  these  plans  shall  have  been  adopted  by  the  several  Govern- 
ments, the  limits  of  armaments  therein  fixed  shall  not  be  exceeded 
without  the  concurrence  of  the  Council. 

The  Members  of  the  League  agree  that  the  manufacture  by  private 
enterprise  of  munitions  and  implements  of  war  is  open  to  grave  ob- 
jections. The  Council  shall  advise  how  the  evil  effects  attendant  upon 
such  manufacture  can  be  prevented,  due  regard  being  had  to  the  ne- 
cessities of  those  Members  of  the  League  which  are  not  able  to  manu- 
facture the  munitions  and  implements  of  war  necessary  for  their 
safety. 

The  Members  of  the  League  undertake  to  interchange  full  and 
frank  information  as  to  the  scale  of  their  armaments,  their  military, 
naval  and  air  programmes,  and  the  condition  of  such  of  their  indus- 
tries as  are  adaptable  to  war-like  purposes. 

Article  9 

A  permanent  Commission  shall  be  constituted  to  advise  the  Council 
on  the  execution  of  the  provisions  of  Articles  1  and  8  and  on  military, 
naval,  and  air  questions  generally. 

Article  10 

The  Members  of  the  League  undertake  to  respect  and  preserve  as 
against  external  aggression  the  territorial  integrity  and  existing  politi- 
cal independence  of  all  Members  of  the  League.  In  case  of  any  such 
aggression  or  in  case  of  any  threat  or  danger  of  such  aggression  the 
Council  shall  advise  upon  the  means  by  which  this  obligation  shall  be 
fulfilled. 

Article  11 

Any  war  or  threat  of  war,  whether  immediately  affecting  any  of  the 
Members  of  the  League  or  not,  is  hereby  declared  a  matter  of  concern 
to  the  whole  League,  and  the  League  shall  take  any  action  that  may  be 
deemed  wise  and  effectual  to  safeguard  the  peace  of  nations.  In  case 
any  such  emergency  should  arise  the  Secretary  General  shall  on  the 
request  of  any  Member  of  the  League  forthwith  summon  a  meeting 
of  the  Council. 

It  is  also  declared  to  be  the  friendly  right  of  each  Member  of  the 
League  to  bring  to  the  attention  of  the  Assembly  or  of  the  Council 
any  circumstance  whatever  affecting  international  relations  which 
threatens  to  disturb  international  peace  or  the  good  understanding 
between  nations  upon  which  peace  depends. 


COVENANT  OF  THE  LEAGUE  OF  NATIONS         1113 


Article;  12 

The  Members  of  the  League  agree  that  if  there  should  arise  between 
them  any  dispute  likely  to  lead  to  a  rupture,  they  will  submit  the  matter 
either  to  arbitration  or  to  inquiry  by  the  Council,  and  they  agree  in  no 
case  to  resort  to  war  until  three  months  after  the  award  by  the  arbi- 
trators or  the  report  by  the  Council. 

In  any  case  under  this  Article  the  award  of  the  arbitrators  shall 
be  made  within  a  reasonable  time,  and  the  report  of  the  Council  shall 
be  made  within  six  months  after  the  submission  of  the  dispute. 

Article  13 

The  Members  of  the  League  agree  that  whenever  any  dispute  shall 
arise  between  them  which  they  recognize  to  be  suitable  for  submission 
to  arbitration  and  which  cannot  be  satisfactorily  settled  by  diplomacy, 
they  will  submit  the  whole  subject  matter  to  arbitration. 

Disputes  as  to  the  interpretation  of  a  treaty,  as  to  any  question  of 
international  law,  as  to  the  existence  of  any  fact  which  if  established 
would  constitute  a  breach  of  any  international  obligation,  or  as  to  the 
extent  and  nature  of  the  reparation  to  be  made  for  any  such  breach, 
are  declared  to  be  among  those  which  are  generally  suitable  for  sub- 
mission to  arbitration. 

For  the  consideration  of  any  such  dispute  the  court  of  arbitration 
to  which  the  case  is  referred  shall  be  the  Court  agreed  on  by  the  Par- 
ties to  the  dispute  or  stipulated  in  any  convention  existing  between 
them. 

The  Members  of  the  League  agree  that  they  will  carry  out  in  full 
good  faith  any  award  that  may  be  rendered,  and  that  they  will  not  re- 
sort to  war  against  a  Member  of  the  League  which  complies  therewith. 
In  the  event  of  any  failure  to  carry  out  such  an  award,  the  Council 
shall  propose  what  steps  should  be  taken  to  give  effect  thereto. 

Article  14 

The  Council  shall  formulate  and  submit  to  the  Members  of  the 
League  for  adoption  plans  for  the  establishment  of  a  Permanent 
Court  of  International  Justice.  The  Court  shall  be  competent  to  hear 
and  determine  any  dispute  of  an  international  character  which  the  par- 
ties thereto  submit  to  it.  The  Court  may  also  give  an  advisory  opinion 
upon  any  dispute  or  question  referred  to  it  by  the  Council  or  by  the 
Assembly. 

Article  15 

It  there  should  arise  between  Members  of  the  League  any  dispute 
likely  to  lead  to  a  rupture,  which  is  not  submitted  to  arbitration  in  ac- 
cordance with  Article  13,  the  Members  of  the  League  agree  that  they 


1114  APPENDIX   I 

will  submit  the  matter  to  the  Council.  Any  party  to  the  dispute  may 
effect  such  submission  by  giving  notice  of  the  existence  of  the  dispute 
to  the  Secretary  General,  who  will  make  all  necessary  arrangements  for 
a  full  investigation  and  consideration  thereof. 

For  this  purpose  the  parties  to  the  dispute  will  communicate  to  the 
Secretary  General,  as  promptly  as  possible,  statements  of  their  case 
with  all  the  relevant  facts  and  papers,  and  the  Council  may  forthwith 
direct  the  publication  thereof. 

The  Council  shall  endeavor  to  effect  a  settlement  of  the  dispute,  and 
if  such  efforts  are  successful,  a  statement  shall  be  made  public  giving 
such  facts  and  explanations  regarding  the  dispute  and  the  terms  of 
settlement  thereof  as  the  Council  may  deem  appropriate. 

If  the  dispute  is  not  thus  settled,  the  Council  either  unanimously  or 
by  a  majority  vote  shall  make  and  publish  a  report  containing  a  state- 
ment of  the  facts  of  the  dispute  and  the  recommendations  which  are 
deemed  just  and  proper  in  regard  thereto. 

Any  Member  of  the  League  represented  on  the  Council  may  make 
public  a  statement  of  the  facts  of  the  dispute  and  of  its  conclusions  re- 
garding the  same. 

If  a  report  by  the  Council  is  unanimously  agreed  to  by  the  members 
thereof  other  than  the  Representatives  of  one  or  more  of  the  parties 
to  the  dispute,  the  Members  of  the  League  agree  that  they  will  not 
go  to  war  with  any  party  to  the  dispute  which  complies  with  the  recom- 
mendations of  the  report. 

If  the  Council  fails  to  reach  a  report  which  is  unanimously  agreed 
to  by  the  members  thereof,  other  than  the  representatives  of  one  or 
more  of  the  parties  to  the  dispute,  the  Members  of  the  League  reserve 
to  themselves  the  right  to  take  such  action  as  they  shall  consider  neces- 
sary^ for  the  maintenance  of  right  and  justice. 

If  the  dispute  between  the  parties  is  claimed  by  one  of  them,  and 
is  found  by  the  Council,  to  arise  out  of  a  matter  which  by  international 
law  is  solely  within  the  domestic  jurisdiction  of  that  party,  the  Council 
shall  so  report,  and  shall  make  no  recommendation  as  to  its  settlement. 

The  Council  may  in  any  case  under  this  Article  refer  the  dispute  to 
the  Assembly.  The  dispute  shall  be  so  referred  at  the  request  of  ei- 
ther party  to  the  dispute,  provided  that  such  request  be  made  within 
fourteen  days  after  the  submission  of  the  dispute  to  the  Council.   . 

In  any  case  referred  to  the  Assembly  all  the  provisions  of  this  Article 
and  of  Article  12  relating  to  the  action  and  powers  of  the  Council 
shall  apply  to  the  action  and  powers  of  the  Assembly,  provided  that 
a  report  made  by  the  Assembty  if  concurred  in  by  the  Representatives 
of  those  Members  of  the  League  represented  on  the  Council  and  of  a 
majority  of  the  other  Members  of  the  League,  exclusive  in  each  case 
of  the  Representatives  of  the  parties  to  the  dispute,  shall  have  the  same 
force  as  a  report  by  the  Council  concurred  in  by  all  the  members  there- 
of other  than  the  Representatives  of  one  or  more  of  the  parties  to  the 
dispute. 


COVENANT    OF    THE    LEAGUE    OF   NATIONS  1115 


Article  16 

Should  any  Member  of  the  League  resort  to  war  in  disregard  of  its 
covenants  under  Articles  12,  13,  or  15,  it  shall  ipso  facto  be  deemed 
to  have  committed  an  act  of  war  against  all  other  Members  of  the 
League,  which  hereby  undertake  immediately  to  subject  it  to  the  sev- 
erance of  all  trade  or  financial  relations,  the  prohibition  of  all  inter- 
course between  their  nationals  and  the  nationals  of  the  covenant-break- 
ing State,  and  the  prevention  of  all  financial,  commercial,  or  personal 
intercourse  between  the  nationals  of  the  covenant-breaking  State  and 
the  nationals  of  any  other  State,  whether  a  Member  of  the  League  or 
not. 

It  shall  be  the  duty  of  the  Council  in  such  case  to  recommend  to  the 
several  Governments  concerned  what  effective  military,  naval  or  air 
force  the  Members  of  the  League  shall  severally  contribute  to  the 
armed  forces  to  be  used  to  protect  the  covenants  of  the  League. 

The  Members  of  the  League  agree,  further,  that  they  will  mutually 
support  one  another  in  the  financial  and  economic  measures  which  are 
taken  under  this  Article,  in  order  to  minimize  the  loss  and  inconven- 
ience resulting  from  the  above  measures,  and  that  they  will  mutually 
support  one  another  in  resisting  any  special  measures  aimed  at  one 
of  their  number  by  the  covenant-breaking  State,  and  that  they  will  take 
the  necessary  steps  to  afford  passage  through  their  territory  to  the 
forces  of  any  of  the  Members  of  the  League  which  are  co-operating 
to  protect  the  covenants  of  the  League. 

Any  Member  of  the  League  which  has  violated  any  covenant  of  the 
League  may  be  declared  to  be  no  longer  a  Member  of  the  League  by 
a  vote  of  the  Council  concurred  in  by  the  Representatives  of  all  the 
other  Members  of  the  League  represented  thereon. 

Article  17 

In  the  event  of  a  dispute  between  a  Member  of  the  League  and  a 
State  which  is  not  a  Member  of  the  League,  or  between  States  not 
Members  of  the  League,  the  State  or  States  not  Members  of  the 
League  shall  be  invited  to  accept  the  obligations  of  membership  in  the 
League  for  the  purposes  of  such  dispute,  upon  such  conditions  as  the 
Council  may  deem  just.  If  such  invitation  is  accepted,  the  provisions 
of  Articles  12  to  16  inclusive  shall  be  applied  with  such  modifications 
as  may  be  deemed  necessary  by  the  Council. 

Upon  such  invitation  being  given  the  Council  shall  immediately  in- 
stitute an  inquiry  into  the  circumstances  of  the  dispute  and  recommend 
such  action  as  may  seem  best  and  most  effectual  in  the  circumstances. 

If  a  State  so  invited  shall  refuse  to  accept  the  obligations  of  mem- 
bership in  the  League  for  the  purposes  of  such  dispute,  and  shall  re- 
sort to  war  against  a  Member  of  the  League,  the  provisions  of  Article 
16  shall  be  applicable  as  against  the  State  taking  such  action. 


1116  APPENDIX   I 

If  both  parties  to  the  dispute  when  so  invited  refuse  to  accept  the 
obHgations  of  membership  in  the  League  for  the  purposes  of  such 
dispute,  the  Council  may  take  such  measures  and  make  such  recom- 
mendations as  will  prevent  hostilities  and  will  result  in  the  settlement 
of  the  dispute. 

Article  18 

Every  treaty  or  international  engagement  entered  into  hereafter  by 
any  Member  of  the  League,  shall  be  forthwith  registered  with  the 
Secretariat  and  shall  as  soon  as  possible  be  published  by  it.  No  such 
treaty  or  international  engagement  shall  be  binding  until  so  registered. 

Article  19 

The  Assembly  may  from  time  to  time  advise  the  reconsideration  by 
Members  of  the  League  of  treaties  which  have  become  inapplicable 
and  the  consideration  of  international  conditions  whose  continuance 
might  endanger  the  peace  of  the  world. 

Article  20 

The  Members  of  the  League  severally  agree  that  this  Covenant  is 
accepted  as  abrogating  all  obligations  or  understandings  inter  se 
which  are  inconsistent  with  the  terms  thereof,  and  solemnly  undertake 
chat  they  will  not  hereafter  enter  into  any  engagements  inconsistent 
with  the  terms  thereof. 

In  case  any  Member  of  the  League  shall,  before  becoming  a  Mem- 
ber of  the  League,  have  undertaken  any  obligations  inconsistent  with 
the  terms  of  this  Covenant,  it  shall  be  the  duty  of  such  Member  to 
take  immediate  steps  to  procure  its  release  from  such  obligations. 

Article  21 

Nothing  in  this  covenant  shall  be  deemed  to  affect  the  validity  of  in- 
ternational engagements  such  as  treaties  of  arbitration  or  regional  un- 
derstandings like  the  Monroe  Doctrine  for  securing  the  maintenance  of 
peace. 

Article  22 

To  those  colonies  and  territories  which  as  a  consequence  of  the  late 
war  have  ceased  to  be  under  the  sovereignty  of  the  States  which 
formerly  governed  them  and  which  are  inhabited  by  peoples  not  yet 
able  to  stand  by  themselves  under  the  strenuous  conditions  of  the; 
modern  world,  there  should  be  applied  the  principle  that  the  well-being 
and  development  of  such  peoples  form  a  sacred  trust  of  civilization 
and  that  securities  for  the  performance  of  this  trust  should  be  em- 
bodied .in  this  Covenant. 


COVENANT   OF   THE   LEAGUE   OF  NATIONS  1117 

The  best  method  of  giving  practical  effect  to  this  principle  is  that 
the  tutelage  of  such  peoples  should  be  entrusted  to  advanced  nations 
who  by  reason  of  their  resources,  their  experience  or  their  geographical 
position  can  best  undertake  this  responsibility,  and  who  are  willing  to 
accept  it,  and  that  this  tutelage  should  be  exercised  by  them  as  Manda- 
tories on  behalf  of  the  League. 

The  character  of  the  mandate  must  differ  according  to  the  stage  of 
the  development  of  the  people,  the  geographical  situation  of  the  terri- 
tory, its  economic  conditions  and  other  similar  circumstances. 

Certain  communities  f  onnerly  belonging  to  the  Turkish  Empire  have 
reached  a  stage  of  development  where  their  existence  as  independent 
nations  can  be  provisionally  recognized  subject  to  the  rendering  of  ad- 
ministrative advice  and  assistance  by  a  Mandatory  until  such  time  as 
they  are  able  to  stand  alone.  The  wishes  of  these  communities  must  be 
a  principal  consideration  in  the  selection  of  the  Mandatory. 

Other  peoples,  especially  those  of  Central  Africa,  are  at  such  a  stage 
that  the  Mandatory  must  be  responsible  for  the  administration  of  the 
territory  under  conditions  which  will  guarantee  freedom  of  conscience 
and  religion,  subject  only  to  the  maintenance  of  public  order  and 
morals,  .tlie  prohibition  of  abuses  such  as  the  slave  trade,  the  arms 
traffic  and  the  liquor  traffic,  and  the  prevention  of  the  establishment  of 
fortifications  or  military  and  naval  bases  and  of  military  training  of 
the  natives  for  other  than  police  purposes  and  the  defence  of  territory, 
and  will  also  secure  equal  opportunities  for  the  trade  and  commerce 
of  other  Members  of  the  League. 

There  are  territories,  such  as  South- West  Africa  and  certain  of  the 
South  Pacific  Islands,  which,  owing  to  the  sparseness  of  their  popula- 
tion, or  their  small  size,  or  their  remoteness  from  the  centers  of  civiliza- 
tion, or  their  geographical  contiguity  to  the  territory  of  the  Mandatory, 
and  other  circumstances,  can  be  best  administered  under  the  laws  of 
the  Mandatory  as  integral  portions  of  its  territory,  subject  to  the  safe- 
guards above-mentioned  in  the  interests  of  the  indigenous  population. 

In  every  case  of  mandate,  the  Mandatory  shall  render  to  the  Council 
an  annual  report  in  reference  to  the  territory  committed  to  its  charge. 

The  degree  of  authority,  control,  or  administration  to  be  exercised 
by  the  Mandatory  shall  if  not  previously  agreed  upon  by  the  Members 
of  the  League  be  explicitly  defined  in  each  case  by  the  Council. 

A  permanent  Commission  shall  be  constituted  to  receive  and  exam- 
ine the  annual  reports  of  the  Mandatories  and  to  advise  the  Council  on 
all  matters  relating  to  the  observance  of  the  mandates. 

Articli:  23 

Subject  to  and  in  accordance  with  the  provisions  of  international 
conventions  existing  or  hereafter  to  be  agreed  upon, 

The  Members  of  the  League : 

(a)  will  endeavor  to  secure  and  maintain  fair  and  humane  conditions 
of  labor  for  men,  women  and  children  both  in  their  own  countries  and 


1118  APPENDIX   I 

in  all  countries  to  which  their  commercial  and  industrial  relations  ex- 
tend, and  for  that  purpose  will  establish  and  maintain  the  necessary 
international  organizations ; 

(b)  undertake  to  secure  just  treatment  of  the  native  inhabitants  of 
territories  under  their  control ; 

(c)  will  entrust  the  League  with  the  general  supervision  over  the 
execution  of  agreements  with  regard  to  the  traffic  in  women  and 
children,  and  the  traffic  in  opium  and  other  dangerous  drugs ; 

(d)  will  entrust  the  League  with  the  general  supervision  of  the  trade 
in  arms  and  ammunition  with  the  countries  in  which  the  control  of  this 
traffic  is  necessary  in  the  common  interest; 

(e)  will  make  provision  to  secure  and  maintain  freedom  of  com- 
munications and  of  transit  and  equitable  treatment  for  the  commerce  of 
all  Members  of  the  League.  In  this  connection,  the  special  necessities 
of  the  regions  devastated  during  the  war  of  1914—1918  shall  be  borne 
in  mind; 

(f)  will  endeavor  to  take  steps  in  matters  of  international  concern 
for  the  prevention  and  control  of  disease. 

Article  24 

There  shall  be  placed  under  the  direction  of  the  League  all  interna- 
tional bureaux  already  established  by  general  treaties  if  the  parties  to 
such  treaties  consent.  All  such  international  bureaux  and  all  commis- 
sions for  the  regulation  of  matters  of  international  interest  hereafter 
constituted  shall  be  placed  under  the  direction  of  the  League. 

In  all  matters  of  international  interest  which  are  regulated  by  gen- 
eral conventions  but  which  are  not  placed  under  the  control  of  in- 
ternational bureaux  or  commissions,  the  Secretariat  of  the  League 
shall,  subject  to  the  consent  of  the  Council  and  if  desired  by  the  parties, 
collect  and  distribute  all  relevant  information  and  shall  render  any 
other  assistance  which  may  be  necessary  or  desirable. 

The  Council  may  include  as  part  of  the  expenses  of  the  Secretariat 
the  expenses  of  any  bureau  or  commission  which  is  placed  under  the 
direction  of  the  League. 

Article  25 

The  Members  of  the  League  agree  to  encourage  and  promote  the 
establishment  and  co-operation  of  duly  authorized  voluntary  national 
Red  Cross  organizations  having  as  purposes  the  improvement  of  health, 
the  prevention  of  disease  and  the  mitigation  of  suffering  throughout 
the  world. 

Article  26 

Amendments  to  this  Covenant  will  take  effect  when  ratified  by  the 
Members  of  the  League  whose  Representatives  compose  the  Council  and 
by  a  majority  of  the  Members  of  the  League  whose  Representatives 
compose  the  Assembly. 


COVENANT  OF  THE  LEAGUE  OF  NATIONS  1119 

No  such  amendment  shall  bind  any  Member  of  the  League  which 
signifies  its  dissent  therefrom,  but  in  that  case  it  shall  cease  to  be  a- 
Member  of  the  League.* 

Annex  to  the  Covenant 

1.  Original  members  of  the  League  of  Nations. 
Signatories  of  the  Treaty  of  Peace.  , 

United  States  of  America,  Belgium,  Bolivia,  Brazil,  British  Empire 
(Canada,  AustraHa,  South  Africa,  New  Zealand,  India),  China,  Cuba, 
Czecho-Slovakia,  Ecuador,  France,  Greece,  Guatemala,  Haiti,  Hedjaz, 
Honduras,  Italy,  Japan,  Liberia,  Nicaragua,  Panama,  Peru,  Poland, 
Portugal,  Rumania,  Serbia,  Siam,  Uruguay. 

States  Invited  to  Accede  to  the  Covenant'. 

Argentine  Republic,  Chili,  Colombia,  Denmark,  Netherlands,  Nor- 
way, Paraguay,  Persia,  Salvador,  Spain,  Sweden,  Switzerland,  Vene- 
zuela. 

*The  members  of  the  League  through  the  coming  into  effect  of  the  Treaty 
of  Versailles  on  January  10,  1920,  are:  Belgium.  Bolivia.  Brazil,  British  E.m- 
pire  Canada,  Australia,  New  Zealand,  South  Africa,  India,  Czecho-Slovakia, 
France,  Guatemala,  Honduras,  Italy,  Japan,  Nicaragua,  Peru.  Poland,  Siam. 
Uruguay. 

The  members  of  the  League  through  subsequent  ratification  of  the  Treaty 
of  Versailles,  with  the  date  of  deposit  of  ratification,  are:  The  Serb-Croat- 
Slovene  State,  February  10,  1920;  Cuba,  March  8,  1920;  Greece,  March  30, 
1920 ;  Portugal,  April  8,  1920 ;  Haiti,  June  30,  1920;  Liberia,  June  30,  1920 ; 
Panama  and  Roumania  (ratifications  announced  by  telegram,  but  not  yet 
deposited). 

The  members  of  the  League  through  accession  to  the  Covenant  under  the 
invitation  contained  in  the  Annex  to  the  Covenant,  with  date  of  accession 
are:  Argentine  Republic,  July  18,  1919;  Chile,  November  4,  1919;  Persia, 
November  21,  1919;  Paraguay,  December  26,  1919;  Spain,  January  10,  1920; 
Columbia,  February  16,  1920;  Venezuela,  March  3,  1920;  Norway,  March  5, 
1920:  Denmark,  March  8,  1920;  Switzerland,  March  8,  1020;  Netherlands, 
March  9,  1920;    Sweden,  March  9,  1920;    Salvador,  March  10,  1920. 

China  is  a  member  of  the  League  through  the  coming  into  effect  of  the 
Treaty  of  St.  Germain,  July  16,  1920. 

The  members  admitted  by  the  First  Assembly  of  the  League  of  Nations  are: 
Austria.  Luxemburg,  Bulgaria,  Costa  Rica,  Finland  and  Albania,  December  15 
to  17,  1920. 

The  members  admitted  by  the  Second  Assembly  of  the  League  of  Nations 
are:  Esthonia,  Latvia,  and  Lithuania,  September  22, 1921.  League  of  Nations. 
Official  Journal,  July,  1920,  to  October,  1921. 


1120  APPENDIX  I 


STATUTE  FOR  THE  PERMANENT  COURT  OF  INTERNA- 
TIONAL JUSTICE  PROVIDED  FOR  BY  ARTICLE  14 
OF  THE  COVENANT  OF  THE  LEAGUE  OF  NATIONS  ^ 


Article  1.  A  Permanent  Court  of  International  Justice  is  hereby- 
established,  in  accordance  with  article  14  of  the  Covenant  of  the 
League  of  Nations.  This  Court  shall  be  in  addition  to  the  Court  of 
Arbitration  organized  by  the  Conventions  of  The  Hague  of  1899  and 
1907,  and  to  the  special  Tribunals  of  Arbitration  to  which  States  are 
always  at  liberty  to  submit  their  disputes  for  settlement. 

1  The  relevant  portions  of  the  Pacific  Settlement  Convention  relating  to 
the  Permanent  Court  of  Arbitration  at  The  Hague,  have  been  printed,  ante,  p. 
476. 

It  seems  advisable  to  print  in  the  Appendix  the  Statute  of  the  Permanent 
Court  of  International  Justice,  inasmuch  as  the  Court  has  been  organized  and 
was  installed  in  the  Peace  Palace  at  The  Hague  on  February  15,  1922. 

At  the  time  of  the  election  of  the  Judges,  forty-four  States — of  which  the 
United  States  was  not  one — had  accepted  the  Statute  for  the  establishment  of 
the  Court.  The  eleven  Judges  were  elected  on  September  14th,  and  the  four 
Deputy  Judges  on  September  14th-15th,  by  the  concurrent  and  separate  ac- 
tion of  the  Assembly  and  the  Council  of  the  League  of  Nations,  at  Geneva,  in 
1921.  The  first  regular  session  of  the  Court  after  its  organization  will  be 
held  at  The  Hague,  on  June  15,  1922. 

The  Court  of  Arbitration  was  devised  in  the  First  Peace  Conference  of 
1899.  An  attempt  was  made  to  constitute  a  perma'nent  court  in  the  technical 
sense  of  the  word  at  the  Second  Conference  of  1907.  A  draft  convention  of 
thirty-five  articles,  dealing  with  the  constitution,  competency  and  procedure, 
was  adopted.  The  Conference,  however,  was  unable  to  devise  a  method  of 
appointing  the  Judges  which  proved  to  be  acceptable  to  the  Powers  generally. 
But  the  draft  convention  was  adopted  and  the  Conference  recommended  the 
Court's  constitution  as  soon  as  an  agreement  had  been  reached  upon  the 
method  of  appointing  the  judges. 

The  Covenant  of  the  League  of  Nations  provided  in  its  fourteenth  article 
for  the  constitution  of  such  a  court. 

The  Council  of  the  League  selected  jurists  to  prepare  the  draft,  and  in  the 
summer  of  1920  five  drawn  from  the  Great  Powers  and  five  from  the  Small 
Powers  met  at  The  Hague.  A  method  of  appointing  the  judges  was  foimd, 
and  an  elaborate  draft  of  the  Court  was  recommended  to  the  Council.  That 
body  suggested  some,  and  the  Assembly  many,  amendments,  and  in  a  modi- 
fied form  it  was  adopted  by  the  Assembly  of  the  League  on  December  13, 
1920. 

In  its  amended  form  it  is  in  substance  the  draft  convention  of  1907,  with 
the  addition  of  a  method  of  appointing  the  judges,  and  the  articles  of  proce- 
dure taken,  as  recommended  by  the  draft  convention,  from  the  Pacific  Settle- 
ment Convention. 

It  is  a  matter  of  interest,  and  to  Americans  of  pride,  that  the  Permanent 
Court  of  International  Justice  was  proposed  by  the  American  Delegation  to 
the  Second  Conference  at  The  Hague  in  1907,  in  pursuance  of  instructions 
from  the  Secretary  of  State  of  the  United  States,  Elihu  Root,  and  that  the 
method  of  appointing  the  judges  and  thus  constituting  the  Court,  was  propos- 
ed by  Mr.  Rioot  himself,  and  in  person,  at  the  meeting  of  the  jurists  at  The 
Hague  in  1920. 


STATUTE   FOR   THE   PERMANENT   COURT  1121 


Chapter  I. — Organization  op  the  Court 

Art.  2.  The  Permanent  Court  of  International  Justice  shall  be  com- 
posed of  a  body  of  independent  judges,  elected  regardless  of  their 
nationality  from  amongst  persons  of  high  moral  character,  who  possess 
the  qualifications  required  in  their  respective  countries  for  appointment 
to  the  highest  judicial  offices,  or  are  juris-consults  of  recognized  com- 
petence in  international  law. 

Art.  3.  The  Court  shall  consist  of  fifteen  members:  eleven  judges 
and  four  deputy- judges.  The  number  of  judges  and  deputy- judges 
may  hereafter  be  increased  by  the  Assembly,  upon  the  proposal  of 
'the  Council  of  the  League  of  Nations,  to  a  total  of  fifteen  judges  and  six 
deputy- judges. 

Art.  4.  The  members  of  the  Court  shall  be  elected  by  the  Assem- 
bly and  by  the  Council  from  a  list  of  persons  nominated  by  the  na- 
tional groups  in  the  Court  of  Arbitration,  in  accordance  with  the  fol- 
lowing provisions. 

In  the  case  of  Members  of  the  League  of  Nations  not  represented 
in  the  Permanent  Court  of  Arbitration,  the  lists  of  candidates  shall 
be  drawn  up  by  national  groups  appointed  for  this  purpose  by  their 
Governments  under  the  same  conditions  as  those  prescribed  for  mem- 
bers of  the  Permanent  Court  of  Arbitration  by  article  44  of  the  Con- 
vention of  The  Hague  of  1907  for  the  pacific  settlement  of  interna- 
tional disputes. 

Art.  5.  At  least  three  months  before  the  date  of  the  election,  the 
Secretary-General  of  the  League  of  Nations  shall  address  a  written 
request  to  the  Members  of  the  Court  of  Arbitration  belonging  to  the 
States  mentioned  in  the  Annex  to  the  Covenant  or  to  the  States  which 
join  the  League  subsequently,  and  to  the  persons  appointed  under 
paragraph  2  of  article  4,  inviting  them  to  undertake,  within  a  given 
time,  by  national  groups,  the  nomination  of  persons  in  a  position  to 
accept  the  duties  of  a  member  of  the  Court. 

No  group  may  nominate  more  than  four  persons,  not  more  than 
two  of  whom  shall  be  of  their  own  nationality.  In  no  case  must  the 
num.ber  of  candidates  nominated  be  more  than  double  the  number  of 
seats  to  be  filled. 

Art.  6.  Before  making  these  nominations,  each  national  group  is 
recommended  to  consult  its  Highest  Court  of  Justice,  its  Legal  Facul- 
ties and  Schools  of  Law,  and  its  National  Academies  and  national  sec- 
tions of  International  Academies  devoted  to  the  study  of  Law. 

Art.  7.  The  Secretary-General  of  the  League  of  Nations  shall  pre- 
pare a  list  in  alphabetical  order  of  all  the  persons  thus  nominated. 
Save  as  provided  in  article  12,  paragraph  2,  these  shall  be  the  only 
persons  eligible  for  appointment. 
Scott  Int.Law— 71 


1122  APPENDIX   I 

The  Secretary-General  shall  submit  this  list  to  the  Assembly  and  to 
the  Council. 

Art.  8.  The  Assembly  and  the  Council  shall  proceed  independently 
of  one  another  to  elect,  firstly  the  judges,  then  the  deputy- judges. 

Art.  9.  At  every  election,  the  electors  shall  bear  in  mind  that  not  only 
should  all  the  persons  appointed  as  members  of  the  Court  possess  the 
qualifications  required,  but  the  whole  body  also  should  represent  the 
main  forms  of  civilization  and  the  principal  legal  systems  of  the  world. 

Art.  10.  Those  candidates  who  obtain  an  absolute  majority  of  votes 
in  the  Assembly  and  in  the  Council  shall  be  considered  as  elected. 

In  the  event  of  more  than  one  national  of  the  same  Member  of 
the  League  being  elected  by  the  votes  of  both  the  Assembly  and  the 
Council,  the  eldest  of  these  only  shall  be  considered  as  elected. 

Art.  11.  If,  after  the  first  meeting  held  for  the  purpose  of  the  elec- 
tion, one  or  more  seats  remain  to  be  filled,  a  second  and,  if  necessary, 
a  third  meeting  shall  take  place. 

Art.  12.  If,  after  the  third  meeting,  one  or  more  seats  still  remain 
unfilled,  a  joint  conference  consisting  of  six  members,  three  appointed 
by  the  Assembly  and  three  by  the  Council,  may  be  formed,  at  any 
time,  at  the  request  of  either  the  Assembly  or  the  Council,  for  the  pur- 
pose of  choosing  one  name  for  each  seat  still  vacant,  to  submit  to  the 
Assembly  and  the  Council  for  their  respective  acceptance. 

If  the  Conference  is  unanimously  agreed  upon  any  person  who  ful- 
fills the  required  conditions,  he  may  be  included  in  its  list,  even  though 
he  was  not  included  in  the  list  of  nominations  referred  to  in  articles  4 
and  5. 

If  the  joint  conference  is  satisfied  that  it  will  not  be  successful  in 
procuring  an  election,  those  members  of  the  Court  who  have  already 
been  appointed  shall,  within  a  period  to  be  fixed  by  the  Council,  pro- 
ceed to  fill  the  vacant  seats  by  selection  from  amongst  those  candidates 
who  have  obtained  votes  either  in  the  Assembly  or  in  the  Council. 

In  the  event  of  an  equality  of  votes  amongst  the  judges,  the  eldest 
judge  shall  have  a  casting  vote. 

Art.  13.  The  members  of  the  Court  shall  be  elected  for  nine  years. 

They  may  be  re-elected. 

They  shall  continue  to  discharge  their  duties  until  their  places  have 
been  filled.  Though  replaced,  they  shall  finish  any  cases  which  they 
may  have  begun. 

Art.  14.  Vacancies  which  may  occur  shall  be  filled  by  the  same  meth- 
od as  that  laid  down  for  the  first  election.  A  member  of  the  Court 
elected  to  replace  a  member  whose  period  of  appointment  had  not 
expired  will  hold  the  appointment  for  the  remainder  of  his  predeces- 
sor's term. 

Art.  15.  Deputy- judges  shall  be  called  upon  to  sit  in  the  order  laid 
down  in  a  list. 

Scott  Int.Law 


STATUTE    FOR    THE    PERMANENT    COURT  1123 

This  list  shall  be  prepared  by  the  Court  and  shall  have  regard  firstly 
to  priority  of  election  and  secondly  to  age. 

Art.  16.  The  ordinary  Members  of  the  Court  may  not  exercise  any 
political  or  administrative  function.  This  provision  does  not  apply  to 
the  deputy- judges  except  when  performing  their  duties  on  the  Court. 

Any  doubt  on  this  point' is  settled  by  the  decision  of  the  Court. 

Art.  17.  No  Member  of  the  Court  can  act  as  agent,  counsel  or  advo- 
cate in  any  case  of  an  international  nature.  This  provision  only  ap- 
plies to  the  deputy-judges  as  regards  cases  in  which  they  are  called 
upon  to  exercise  their  functions  on  the  Court. 

No  Member  may  participate  in  the  decision  of  any  case  in  which 
he  has  previously  taken  an  active  part,  as  agent,  counsel  or  advocate 
for  one  of  the  contesting  parties,  or  as  a  Member  of  a  national  or  in- 
ternational Court,  or  of  a  Commission  of  inquiry,  or  in  any  other 
capacity. 

Any  doubt  on  this  point  is  settled  by  the  decision  of  the  Court. 

Art.  18.  A  member  of  the  Court  can  not  be  dismissed  unless  in  the 
unanimous  opinion  of  the  other  members,  he  has  ceased  to  fulfill  the 
required  conditions. 

Formal  notification  thereof  shall  be  made  to  the  Secretary-General 
of  the  League  of  Nations,  by  the  Registrar. 

This  notification  makes  the  place  vacant. 

Art.  19.  The  members  of  the  Court,  when  engaged  on  the  business 
of  the  Court,  shall  enjoy  diplomatic  privileges  and  immunities. 

Art.  20.  Every  member  of  the  Court  shall,  before  taking  up  his 
duties,  make  a  solemn  declaration  in  open  Court  that  he  will  exercise 
his  powers  impartially  and  conscientiously. 

Art.  21.  The  Court  shall  elect  its  President  and  Vice-President  for 
three  years ;   they  may  be  re-elected. 

It  shall  appoint  its  Registrar. 

The  duties  of  Registrar  of  the  Court  shall  not  be  deemed  incom- 
patible with  those  of  Secretary-General  of  the  Permanent  Court  of 
Arbitration. 

Art.  22.  The  seat  of  the  Court  shall  be  established  at  The  Hague. 

The  President  and  Registrar  shall  reside  at  the  seat  of  the  Court. 

Art.  -23.  A  session  of  the  Court  shall  be  held  every  year. 

Unless  otherwise  provided  by  rules  of  Court,  this  session  shall  be- 
gin on  the  15th  of  June,  and  shall  continue  for  so  long  as  may  be 
deemed  necessary  to  finish  the  cases  on  the  list. 

The  President  may  summon  an  extraordinary  session  of  the  Court 
whenever  necessary. 

Art.  24.  If,  for  some  special  reason,  a  member  of  the  Court  con- 
siders that  he  should  not  take  part  in  the  decision  of  a  particular  case, 
he  shall  so  inform  the  President. 

If  the  President  considers  that  for  some  special  reason  one  of  the 


1124  APPENDIX    I 

members  of  the  Court  should  not  sit  on  a  particular  case,  he  shall  give 
him  notice  accordingly. 

If  in  any  such  case  the  member  of  the  Court  and  the  President  dis- 
agree, the  matter  shall  be  settled  by  the  decision  of  the  Court. 

Art.  25.  The  full  Court  shall  sit  except  when  it  is  expressly  provided 
otherwise. 

If  eleven  judges  can  not  be  present,  the  number  shall  be  made  up 
by  calling  on  deputy-judges  to  sit. 

If,  however,  eleven  judges  are  not  available,  a  quorum  of  nine  judges 
shall  suffice  to  constitute  the  Court. 

Art.  26.  Labor  cases,  particularly  cases  referred  to  in  Part  XIII 
(Labor)  of  the  Treaty  of  Versailles  and  the  corresponding  portions  of 
the  other  Treaties  of  Peace,  shall  be  heard  and  determined  by  the  Court 
under  the  following  conditions : 

The  Court  will  appoint  every  three  years  a  special  chamber  of  five 
judges,  selected  so  far  as  possible  with  due  regard  to  the  provisions 
of  article  9.  In  addition,  two  judges  shall  be  selected  for  the  purpose 
of  replacing  a  judge  who  finds  it  impossible  to  sit.  If  the  parties 
so  demand,  cases  will  be  heard  and  determined  by  this  chamber.  In 
the  absence  of  any  such  demand,  the  Court  will  sit  with  the  number 
of  judges  provided  for  in  article  25.  On  all  occasions  the  judges  will 
be  assisted  by  four  technical  assessors  sitting  with  them,  but  without 
the  right  to  vote,  and  chosen  with  a  view  to  insuring  a  just  representa- 
tion of  the  competing  interests. 

If  there  is  a  national  of  one  only  of  the  parties  sitting  as  a  judge 
in  the  chamber  referred  to  in  the  preceding  paragraph,  the  President 
will  invite  one  of  the  other  judges  to  retire  in  favor  of  a  judge  chosen 
by  the  other  party  in  accordance  with  article  31. 

The  technical  assessors  shall  be  chosen  for  each  particular  case  in 
accordance  with  rules  of  procedure  under  article  30  from  a  list  of  "As- 
sessors for  Labor  Cases"  composed  of  two  persons  nominated  by  each 
Member  of  the  League  of  Nations  and  an  equivalent  number  nomi- 
nated by  the  Governing  Body  of  the  Labor  Office.  The  Governing 
Body  will  nominate,  as  to  one  half,  representatives  of  the  workers, 
and  as  to  one  half,  representatives  of  employers  from  the  list  referred 
to  in  article  412  of  the  Treaty  of  Versailles  and  the  corresponding  arti- 
cles of  the  other  Treaties  of  Peace. 

In  Labor  cases  the  International  Labor  Office  shall  be  at  liberty 
to  furnish  the  Court  with  all  relevant  information,  and  for  this  pur- 
pose the  Director  of  that  Office  shall  receive  copies  of  all  the  written 
proceedings. 

Art.  27.  Cases  relating  to  transit  and  communications,  particularly 
cases  referred  to  in  Part  XII  (Ports,  Waterways  and  Railways)  of 
the  Treaty  of  Versailles  and  the  corresponding  portions  of  the  other 
Treaties  of  Peace  shall  be  heard  and  determined  by  the  Court  under 
the  following  conditions ; 


STATUTE   FOR   THE   PERMANENT   COURT  1125 

The  Court  will  appoint  every  three  years  a  special  chamber  of  five 
judges,  selected  so  far  as  possible  with  due  regard  to  the  provisions 
of  article  9.  In  addition,  two  judges  shall  be  selected  for  the  purpose 
of  replacing  a  judge  who  finds  it  impossible  to  sit.  If  the  parties  so 
demand,  cases  will  be  heard  and  determined  by  this  chamber.  In  the 
absence  of  any  such  demand,  the  Court  will  sit  with  the  number  of 
judges  provided  for  in  article  25.  When  desired  by  the  parties  or 
decided  by  the  Court,  the  judges  will  be  assisted  by  four  technical  as- 
sessors sitting  with  them,  but  without  the  right  to  vote. 

If  there  is  a  national  of  one  only  of  the  parties  sitting  as  a  judge 
in  the  chamber  referred  to  in  the  preceding  paragraph,  the  President 
will  invite  one  of  the  other  judges  to  retire  in  favor  of  a  judge  chosen 
by  the  other  party  in  accordance  with  article  31. 

The  technical  assessors  shall  be  chosen  for  each  particular  case  in  ac- 
cordance with  rules  of  procedure  under  article  30  from  a  list  of  "As- 
sessors for  Transit  and  Communications  Cases"  composed  of  two  per- 
sons nominated  by  each  Member  of  the  League  of  Nations. 

Art.  28.  The  special  chambers  provided  for  in  articles  26  and  27 
may,  with  the  consent  of  the  parties  to  the  dispute,  sit  elsewhere  than 
at  The  Hague. 

Art.  29.  With  a  view  to  the  speedy  dispatch  of  business,  the  Court 
shall  form  annually  a  chamber  composed  of  three  judges  who,  at  the 
request  of  the  contesting  parties,  may  hear  and  determine  cases  by  simi- 
mary  procedure. 

Art.  30.  The  Court  shall  frame  rules  for  regulating  its  procedure. 
In  particular,  it  shall  lay  down  rules  for  summary  procedure. 

Art.  31.  Judges  of  the  nationality  of  each  contesting  party  shall 
retain  their  right  to  sit  in  the  case  before  the  Court. 

If  the  Court  includes  upon  the  Bench  a  judge  of  the  nationality  of 
one  of  the  parties  only,  the  other  party  may  select  from  among  the 
deputy-judges  a  judge  of  its  nationality,  if  there  be  one.  If  there 
should  not  be  one,  the  party  may  choose  a  judge,  preferably  from 
among  those  persons  who  have  been  nominated  as  candidates  as  pro- 
vided in  articles  4  and  5. 

If  the  Court  includes  upon  the  Bench  no  judge  of  the  nationality 
of  the  contesting  parties,  each  of  these  may  proceed  to  select  or  choose 
a  judge  as  provided  in  the  preceding  paragraph. 

Should  there  be  several  parties  in  the  same  interest,  they  shall,  for 
the  purpose  of  the  preceding  provisions,  be  reckoned  as  one  party 
only.  Any  doubt  upon  this  point  is  settled  by  the  decision  of  the 
Court. 

Judges  selected  or  chosen  as  laid  down  in  paragraphs  2  and  3  of 
this  article  shall  fulfill  the  conditions  required  by  articles  2,  16.  17, 
20,  24  of  this  Statute.  They  shall  take  part  in  the  decision  on  an 
equal  footing  with  their  colleagues. 

Art.  32.  The  judges  shall  receive  an  annual  indemnity  to  be  deter- 


1126  APPENDIX   I 

mined  by  the  Assembly  of  the  League  of  Nations  upon  the  proposal 
of  the  Council.  This  indemnity  must  not  be  decreased  during  the 
period  of  a  judge's  appointment. 

The  President  shall  receive  a  special  grant  for  his  period  of  office,  to 
be  fixed  in  the  same  way. 

The  Vice-President,  judges  and  deputy- judges  shall  receive  a  grant 
for  the  actual  performance  of  their  duties,  to  be  fixed  in  the  same 
way. 

TraveHng  expenses  incurred  in  the  performance  of  their  duties  shall 
be  refunded  to  judges  and  deputy- judges  who  do  not  reside  at  the 
seat  of  the  Court. 

Grants  due  to  judges  selected  or  chosen  as  provided  in  article  31 
shall  be  determined  in  the  same  way. 

The  salary  of  the  Registrar  shall  be  decided  by  the  Council  upon 
the  proposal  of  the  Court. 

The  Assembly  of  the  League  of  Nations  shall  lay  down,  on  the  pro- 
posal of  the  Council,  a  special  regulation  fixing  the  conditions  under 
which  retiring  pensions  may  be  given  to  the  personnel  of  the  Court. 

Art.  33.  The  expenses  of  the  Court  shall  be  borne  by  the  League  of 
Nations,  in  such  a  manner  as  shall  be  decided  by  the  Assembly  upon 
the  proposal  of  the  Council. 

Chapter  IL — Competence  of  the  Court 

Art.  34.  Only  States  or  Members  of  the  League  of  Nations  can  be 
parties  in  cases  before  the  Court. 

Art.  35.  The  Court  shall  be  open  to  the  Members  of  the  League 
and  also  to  States  mentioned  in  the  Annex  to  the  Covenant. 

The  conditions  under  which  the  Court  shall  be  open  to  other  States 
shall,  subject  to  the  special  provisions  contained  in  treaties  in  force, 
be  laid  down  by  the  Council,  but  in  no  case  shall  such  provisions  place 
the  parties  in  a  position  of  inequality  before  the  Court. 

When  a  State  which  is  not  a  Member  of  the  League  of  Nations  is 
a  party  to  a  dispute,  the  Court  will  fix  the  amount  which  that  party 
is  to  contribute  toward  the  expenses  of  the  Court. 

Art.  36.  The  jurisdiction  of  the  Court  comprises  all  cases  which 
the  parties  refer  to  it  and  all  matters  specially  provided  for  in  Treaties 
and  Conventions  in  force. 

The  Members  of  the  League  of  Nations  and  the  States  mentioned 
in  the  Annex  to  the  Covenant  may,  either  when  signing  or  ratifying 
the  protocol  to  which  the  present  Statute  is  adjoined,  or  at  a  later 
moment,  declare  that  they  recognize  as  compulsory,  ipso  facto  and 
without  special  agreement,  in  relation  to  any  other  Member  or  State 
accepting  the  same  obligation,  the  jurisdiction  of  the  Court  in  all  or 
any  of  the  classes  of  legal  disputes  concerning: 

(a)  The  interpretation  of  a  Treaty. 


STATUTE   FOR   THE   PERMANENT   COURT  1127 

(b)  Any  question  of  International  Law. 

(c)  The  existence  of  any  fact  which,  if  established,  would  constitute 
a  breach  of  an  international  obligation. 

(d)  The  nature  or  extent  of  the  reparation  to  be  made  for  the  breach 
of  an  international  obligation. 

The  declaration  referred  to  above  may  be  made  unconditionally  or 
on  condition  of  reciprocity  on  the  part  of  several  or  certain  Members 
or  States,  or  for  a  certain  time. 

In  the  event  of  a  dispute  as  to  whether  the  Court  has  jurisdiction, 
the  matter  shall  be  settled  by  the  decision  of  the  Court. 

Art.  37.  When  a  treaty  or  convention  in  force  provides  for  the  ref- 
erence of  a  matter  to  a  tribunal  to  be  instituted  by  the  League  of 
Nations,  the  Court  will  be  such  tribunal. 

Art.  38.  The  Court  shall  apply : 

1.  International  conventions,  whether  general  or  particular,  estab- 
lishing rules  expressly  recognized  by  the  contesting  States; 

2.  International  custom,  as  evidence  of  a  general  practice  accepted 
as  law ; 

3.  The  general  principles  of  law  recognized  by  civilized  nations ; 

4.  Subject  to  the  provisions  of  article  59,  judicial  decisions  and  the 
teachings  of  the  most  highly  qualified  publicists  of  the  various  nations, 
as  subsidiary  means  for  the  determination  of  rules  of  law. 

This  provision  shall  not  prejudice  the  power  of  the  Court  to  decide 
a  case  ex  aequo  et  bono,  if  the  parties  agree  thereto. 

Chapter  III. — Procedure 

Art.  39.  The  official  languages  of  the  Court  shall  be  French  and 
English.  If  the  parties  agree  that  the  case  shall  be  conducted  in 
French,  the  judgment  will  be  delivered  in  French.  If  the  parties  agree 
that  the  case  shall  be  conducted  in  English,  tlie  judgment  will  be  de- 
livered in  English. 

In  the  absence  of  an  agreement  as  to  which  language  shall  be  em- 
ployed, each  party  may,  in  the  pleadings,  use  the  language  which  it 
prefers;  the  decision  of  the  Court  will  be  given  in  French  and  Eng- 
Hsh.  In  this  case  the  Court  will  at  the  same  time  determine  which  of 
the  two  texts  shall  be  considered  as  authoritative. 

The  Court  may,  at  the  request  of  the  parties,  authorize  a  language 
other  than  French  or  English  to  be  used. 

Art.  40.  Cases  are  brought  before  the  Court,  as  the  case  may  be, 
either  by  the  notification  of  the  special  agreement  or  by  a  written  ap- 
plication addressed  to  the  Registrar.  In  either  case  the  subject  of  the 
dispute  and  the  contesting  parties  must  be  indicated. 

The  Registrar  shall  forthwith  communicate  the  application  to  all 
concerned. 

He  shall  also  notify  the  Members  of  the  League  of  Nations  through 
the  Secretary-General. 


1128  APPENDIX  I 

Art.  41.  The  Court  shall  have  the  power  to  indicate,  if  it  considers 
that  circumstances  so  require,  any  provisional  measures  which  ought 
to  be  taken  to  reserve  the  respective  rights  of  either  party. 

Pending  the  final  decision,  notice  of  the  measures  suggested  shall 
forthwith  be  given  to  the  parties  and  the  Council. 

Art.  42.  The  parties  shall  be  represented  by  Agents. 

They  may  have  the  assistance  of  Counsel  or  Advocates  before  the 
Court. 

Art.  43.  The  procedure  shall  consist  of  two  parts :  written  and  oral. 

The  written  proceedings  shall  consist  of  the  communication  to  the 
judges  and  to  the  parties  of  cases,  counter-cases  and,  if  necessary,  re- 
plies ;  also  all  papers  and  documents  in  support. 

These  communications  shall  be  made  through  the  Registrar,  in  the 
order  and  within  the  time  fixed  by  the  Court. 

A  certified  copy  of  every  document  produced  by  one  party  shall  be 
communicated  to  the  other  party. 

The  oral  proceedings  shall  consist  of  the  hearing  by  the  Court  of 
witnesses,  experts,  agents,  counsel  and  advocates. 

Art.  44.  For  the  service  of  all  notices  upon  persons  other  than  the 
agents,  counsel  and  advocates,  the  Court  shall  apply  direct  to  the 
Government  of  the  State  upon  whose  territory  the  notice  has  to  be 
served. 

The  same  provision  shall  apply  whenever  steps  are  to  be  taken  to 
procure  evidence  on  the  spot. 

Art.  45.  The  hearing  shall  be  under  the  control  of  the  President  or, 
in  his  absence,  of  the  Vice-President;  if  both  are  absent,  the  senior 
judge  shall  preside. 

Art.  46.  The  hearing  in  Court  shall  be  public,  unless  the  Court 
shall  decide  otherwise,  or  unless  the  parties  demand  that  the  public 
be  not  admitted. 

Art.  47.  Minutes  shall  be  made  at  each  hearing,  and  signed  by  the 
Registrar  and  the  President. 

These  minutes  shall  be  the  only  authentic  record. 

Art.  48.  The  Court  shall  make  orders  for  the  conduct  of  the  case, 
shall  decide  the  form  and  time  in  which  each  party  must  conclude  its 
arguments,  and  make  all  arrangements  connected  with  the  taking  of 
evidence. 

Art.  49.  The  Court  may,  even  before  the  hearing  begins,  call  upon 
the  agents  to  produce  any  document  or  to  supply  any  explanations. 
Formal  note  shall  be  taken  of  any  refusal. 

Art.  50.  The  Court  may,  at  any  time,  intrust  any  individual,  body, 
bureau,  commission  or  other  organization  that  it  may  select,  with 
the  task  of  carrying  out  an  inquiry  or  giving  an  expert  opinion. 

Art.  51.  During  the  hearing  any  relevant  questions  are  to  be  put 
to  the  witnesses  and  experts  under  the  conditions  laid  down  by  the 
Court  in  the  rules  of  procedure  referred  to  in  article  30. 


STATUTE    FOR    THE   PERMANENT    COURT  1129 

Art.  52.  After  the  Court  has  received  the  proofs  and  evidence  with- 
in the  time  specified  for  the  purpose,  it  may  refuse  to  accept  any  fur- 
ther oral  or  written  evidence  that  one  party  may  desire  to  present 
unless  the  other  side  consents. 

Art.  53.  Whenever  one  of  the  parties  shall  not  appear  before  the 
Court,  or  shall  fail  to  defend  his  case,  the  other  party  may  call  upon 
the  Court  to  decide  in  favor  of  his  claim. 

The  Court  must,  before  doing  so,  satisfy  itself,  not  only  that  it  has 
jurisdiction  in  accordance  with  articles  36  and  Z7 ,  but  also  that  the 
claim  is  well  founded  in  fact  and  law. 

Art.  54.  When,  subject  to  the  control  of  the  Court,  the  agents,  ad- 
vocates and  counsel  have  completed  their  presentation  of  the  case, 
the  President  shall  declare  the  hearing  closed. 

The  Court  shall  withdraw  to  consider  the  judgment. 

The  deliberations  of  the  Court  shall  take  place  in  private  and  re- 
main secret. 

Art.  55.  All  questions  shall  be  decided  by  a  majority  of  the  judges 
present  at  the  hearing. 

In  the  event  of  an  equality  of  votes,  the  President  or  his  deputy 
shall  have  a  casting  vote. 

Art.  56.  The  judgment  shall  state  the  reasons  on  which  it  is  based. 

It  shall  contain  the  names  of  the  judges  who  have  taken  part  in 
the  decision. 

Art.  57.  If  the  judgment  does  not  represent  in  whole  or  in  part 
the  unanimous  opinion  of  the  judges,  dissenting  judges  are  entitled 
to  deliver  a  separate  opinion. 

Art.  58.  The  judgment  shall  be  signed  by  the  President  and  by 
the  Registrar.  It  shall  be  read  in  open  Court,  due  notice  having  been 
given  to  the  agents. 

Art.  59.  The  decision  of  the  Court  has  no  binding  force  except  be- 
tween the  parties  and  in  respect  of  that  particular  case. 

Art.  60.  The  judgment  is  final  and  without  appeal.  In  the  event  of 
dispute  as  to  the  meaning  or  scope  of  the  judgment,  the  Court  shall 
construe  it  upon  the  request  of  any  party. 

Art.  61.  An  application  for  revision  of  a  judgment  can  be  made  only 
when  it  is  based  upon  the  discovery  of  some  fact  of  such  a  nature 
as  to  be  a  decisive  factor,  which  fact  was,  when  the  judgment  was 
given,  unknown  to  the  Court  and  also  to  the  party  claiming  revision, 
always  provided  that  such  ignorance  was  not  due  to  negligence. 

The  proceedings  for  revision  will  be  opened  by  a  judgment  of  the 
Court  expressly  recording  the  existence  "of  the  new  fact,  recognizing 
that  it  has  such  a  character  as  to  lay  the  case  open  to  revision,  and 
declaring  the  application  admissible  on  this  ground. 

The  Court  may  require  previous  compliance  with  the  terms  of  the 
judgment  before  it  admits  proceedings  in  revision. 


1130  APPENDIX   I 

The  application  for  revision  must  be  made  at  latest  within  six  months 
of  the  discovery  of  the  new  fact. 

No  application  for  revision  may  be  made  after  the  lapse  of  ten 
years  from  the  date  of  the  sentence. 

Art.  62.  Should  a  State  consider  that  it  has  an  interest  of  a  legal 
nature  which  may  be  affected  by  the  decision  in  the  case,  it  may 
submit  a  request  to  the  Court  to  be  permitted  to  intervene  as  a  third 
party. 

It  will  be  for  the  Court  to  decide  upon  this  request. 

Art.  63.  Whenever  the  construction  of  a  convention  to  which  States 
other  than  those  concerned  in  the  case  are  parties  is  in  question,  the 
Registrar  shall  notify  all  such  States  forthwith. 

Every  State  so  notified  has  the  right  to  intervene  in  the  proceed- 
ings; but  if  it  uses  this  right,  the  construction  given  by  the  judgment 
will  be  equally  binding  upon  it. 

Art.  64.  Unless  otherwise  decided  by  the  Court,  each  party  shall 
bear  its  own  costs. 

Protocol  of  Signature 

The  Members  of  the  League  of  Nations,  through  the  undersigned, 
duly  authorized,  declare  their  acceptance  of  the  adjoined  Statute  of  the 
Permanent  Court  of  International  Justice,  which  was  approved  by  a 
unanimous  vote  of  the  Assembly  of  the  League  on  December  13th, 
1920,  at  Geneva. 

Consequently,  they  hereby  declare  that  they  accept  the  jurisdiction 
of  the  Court  in  accordance  with  the  terms  and  subject  to  the  condi- 
tions of  the  above-mentioned  Statute. 

The  present  Protocol,  which  has  been  drawn  up  in  accordance  with 
the  decision  taken  by  the  Assembly  of  the  League  of  Nations  on  De- 
cember 13th,  1920,  is  subject  to  ratification.  Each  Power  shall  send 
its  ratification  to  the  Secretary-General  of  the  league  of  Nations ; 
the  latter  shall  take  the  necessary  steps  to  notify  such  ratification  to 
the  other  signatory  Powers.  The  ratification  shall  be  deposited  in  the 
archives  of  the  Secretariat  of  the  League  of  Nations. 

The  said  Protocol  shall  remain  open  for  signature  by  the  Members 
of  the  League  of  Nations  and  by  the  States  mentioned  in  the  Annex 
to  the  Covenant  of  the  League. 

The  Statute  of  the  Court  shall  come  into  force  as  provided  in  the 
above-mentioned  decision. 

Executed  at  Geneva,  in  a  single  copy,  the  French  and  English  texts 
of  which  shall  both  be  authentic,  on  the  sixteenth  day  of  December  in 
the  year  nineteen  hundred  and  twenty. 

Optional  Clause 

The  undersigned,  being  duly  authorized  thereto,  further  declare,  on 
behalf  of  their  Government,  that,  from  this  date,  they  accept  as  com- 


STATUTE   FOR   THE   PERMANENT   COURT 


lliil 


pulsory  "ipso  facto"  and  without  special  convention,  the  jurisdiction 
of  the  Court  in  conformity  with  Article  36,  paragraph  2,  of  the  Statute 
of  the  Court,  under  the  following  conditions :  * 

*The  following  states  have  signed  the  Protocol  of  Signature  up  to  January 
6,  1922: 


Albania 

Finland 

Paraguay 

Australia 

France 

Persia 

Austria 

Greece 

Poland 

Belgium 

Haiti 

Portugal 

Bolivia 

India 

Roumania 

Brazil 

Italy 

Salvador 

Bulgaria 

Japan 

Serb-Croat-Slovene  State 

Canada 

Latvia 

Siam 

Chile 

Liberia 

South  Africa     . 

China 

Lithuania 

Spain 

Colombia 

Luxemburg 

Sweden 

Costa  Rica 

Netherlands 

Switzerland 

Cuba 

New  Zealand 

United  Kingdom 

Czeeho- Slovakia 

Norway 

Uruguay 

Denmark 

Panama 

Venezuela 

Esthonia 

' 

The  following  states  have 

signed  the  optional  clause  concerning  compulsory 

jurisdiction  of  the  Court: 

Austria 

Haiti 

Panama 

Brazil 

Liberia 

Portugal 

Bulgaria 

Lithuania 

San  Salvador 

China 

Luxemburg 

Sweden 

Costa  Rica 

Netherlands 

Switzerland 

Denmark 

Norway 

Uruguay 

Finland 

The  following  states  have  deposited  deeds  of  ratification  to  the  general 

piOLUCUi. 

Albania 

Greece 

Roumania 

Australia 

Haiti 

Serb-Croat-Slovene  State 

Austria 

India 

Siam 

Belgium 

Italy 

South  Africa 

Brazil 

Japan 

Spain 

Bulgaria 

Lithuania 

Sweden 

Canada 

Netherlands 

Switzerland 

Cuba 

New  Zealand 

United  Kingdom 

Czechoslovakia 

Norway 

Uruguay 

Denmark 

Poland 

Venezuela 

France 

Portugal 

The  following  states  have  ratified  their  signature  of  the  optional  clause: 
Bulgaria                               Lithuania  Portugal 

Brazil  Netherlands  Switzerland 

China  Norway  Uruguay 

Denmark 

The  Cuban  ratification  of  the  general  protocol  has  been  received,  but  not 
yet  notified  to  the  Powers,  because  there  is  a  slight  doubt  about  its  legal 
validity.  The  Chinese  and  Siamese  ratifications  of  the  general  protocol  are 
complete,  although  they  have  not  yet  been  received  in  the  Secretariat.  Brazil 
has  signed  the  optional  clause  with  the  reserve  that  its  signature  shall  be  con- 
sidered invalid  unless  the  clause  is  signed  by  at  least  two  Powers  permanently 
represented  on  the  Council  of  t'le  Tomsiho  of  Nntio'is: — Tveasmo  of  Nations, 
OtHcial  Journal,  Feb.,  1922,  Annex  284,  pp.  119,  120 ;   March,  1922,  p.  203. 


APPENDIX  II 


DECLARATION  OF  PARIS 

April  16,  1856 


The  above-mentioned  Plenipotentiaries,  being  duly  authorized,  re- 
solved to  concert  among  themselves  as  to  the  means  of  attaining  this  ob- 
ject; and  having  come  to  an  agreement,  have  adopted  the  following 
solemn  declaration: 

1.  Privateering  is  and  remains  abolished. 

2.  The  neutral  flag  covers  enemy's  goods,  with  the  exception  of  con- 
traband of  war. 

3.  Neutral  goods,  with  the  exception  of  contraband  of  war,  are  not 
liable  to  capture  under  enemy's  flag. 

4.  Blockades,  in  order  to  be  binding,  must  be  effective — that  is  to 
say,  maintained  by  a  force  sufificient  really  to  prevent  access  to  the 
coast  of  the  enemy.     *     *     * 


DECLARATION  OF  ST    PETERSBURG 

Nov.  29— Dec.  11,  1868 


Considering  that  the  progress  of  civilization  should  have  the  effect 
of  alleviating  as  much  as  possible  the  calamities  of  war ; 

That  the  only  legitimate  object  which  States  should  endeavor  to  ac- 
compHsh  during  war  is  to  weaken  the  military  forces  of  the  enemy ; 

That  for  this  purpose  it  is  sufficient  to  disable  the  greatest  possible 
number  of  men ; 

That  this  object  would  be  exceeded  by  the  employment  of  arms 
which  uselessly  aggravate  the  sufferings  of  disabled  men,  or  render 
their  death  inevitable  ; 

That  the  employment  of  such  arms  would,  therefore,  be  contrary  to 
the  laws  of  humanity ; 

The  Contracting  Parties  engage  mutually  to  renounce,  in  case  of  war 
among  themselves,  the  employment  by  their  military  or  naval  forces 
of  any  projectile  of  less  weight  than  400  grammes,  which  is  explosive 
or    is  charged  with  fulminating  or  inflammable  substances.     *     *     * 

(1132) 


GENEVA  CONVENTION   OF  1906  1133 

DECLARATION  CONCERNING  ASPHYXIATING  GASES 

Signed  at  The  Hague,  July  29,  1S99 


The  contracting  Powers  agree  to  abstain  from  the  use  of  projectiles 
the  sole  objett  of  which  is  the  diffusion  of  asphyxiating  or  deleterious 
gases. 

The  present  Declaration  is  only  binding  on  the  contracting  Powers 
in  the  case  of  a  war  between  two  or  more  of  them, 

.It  shall  cease  to  be  binding  from  the  time  when,  in  a  war  between 
the  contracting  Powers,  one  of  the  belligerents  shall  be  joined  by  a 
non-contracting  Power. 


DECLARATION  CONCERNING  EXPANDING  BULLETS 

Signed  at  The  Hague,  July  29,  1899 


The  contracting  Parties  agree  to  abstain  from  the  use  of  bullets 
which  expand  or  flatten  easily  in  the  human  body,  such  as  bullets  with 
a  hard  envelope  which  does  not  entirely  cover  the  core  or  is  pierced 
with  incisions. 

The  present  Declaration  is  only  binding  for  the  contracting  Powers 
in  the  case  of  a  war  between  two  or  rpore  of  them. 

It  shall  cease  to  be  binding  from  the  time  when,  in  a  war  between 
the  contracting  Powers,  one  of  the  belligerents  is  joined  by  a  non- 
contracting  Power. 


GENEVA  CONVENTION  OF  1906  FOR  THE  AMELIORA- 
TION OF  THE  CONDITION  OP  THE  WOUND- 
ED IN  ARMIES  IN  THE  FIELD 


Chapter  I. — The  Sick  and  Wounded 

Article  1.  Officers,  soldiers,  and  other  persons  officially  attached  to 
armies,  who  are  sick  or  wounded,  shall  be  respected  and  cared  for, 
without  distinction  of  nationality,  by  the  belligerent  in  whose  power 
they  are. 

A  belligerent,  however,  when  compelled  to  leave  his  sick  or  wounded 
in  the  hands  of  his  adversary,  shall  leave  with  them,  so  far  as  military 
conditions  permit,  a  portion  of  the  personnel  and  materiel  of  his  sani- 
tary service  to  assist  in  caring  for  them. 


1134  APPENDIX  n 

Art.  2.  Subject  to  the  care  that  must  be  taken  of  them  under  the 
preceding  article,  the  sick  and  wounded  of  an  army  who  fall  into  the 
power  of  the  other  belligerent  become  prisoners  of  war,  and  the  gen- 
eral rules  of  international  law  in  respect  to  prisoners  become  applicable 
to  them. 

The  belligerents  remain  free,  however,  to  mutually  agree  upon  such 
clauses,  by  way  of  exception  or  favor,  in  relation  to  the  wounded  or 
sick  as  they  may  deem  proper.  They  shall  especially  have  authority 
to  agree — 

1.  To  mutually  return  the  sick  and  wounded  left  on  the  field  of  battle 
after  an  engagement, 

2.  To  send  back  to  their  own  country  the  sick  and  wounded  who 
have  recovered,  or  who  are  in  a  condition  to  be  transported  and  whom 
they  do  not  desire  to  retain  as  prisoners. 

3.  To  send  the  sick  and  wounded  of  the  enemy  to  a  neutral  State, 
with  the  consent  of  the  latter  and  on  condition  that  it  shall  charge 
ilself  with  their  internment  until  the  close  of  hostilities. 

Art.  3.  After  every  engagement  the  belligerent  who  remains  in  pos- 
session of  the  field  of  battle  shall  take  measures  to  search  for  the 
wounded  and  to  protect  the  wounded  and  dead  from  robbery  and  ill- 
treatment. 

He  will  see  that  a  careful  examination  is  made  of  the  bodies  of  the 
dead  prior  to  their  interment  or  incineration. 

Art.  4.  As  soon  as  possible  each  belligerent  shall  forward  to  the  au- 
thorities of  their  country  or  army  the  marks  or  military  papers  of 
identification  found  upon  the  bodies  of  the  dead,  together  with  a  list 
of  names  of  the  sick  and  wounded  taken  in  charge  by  him.  . 

Belligerents  will  keep  each  other  mutually  advised  of  internments 
and  transfers,  together  with  admissions  to  hospitals  and  deaths  which 
occur  among  the  sick  and  wounded  in  their  hands.  They  will  collect 
all  objects  of  personal  use,  valuables,  letters,  etc.,  which  are  found  upon 
the  field  of  battle,  or  have  been  left  by  the  sick  or  wounded  who  have 
died  in  sanitary  formations  or  other  establishments,  for  transmission 
to  persons  in  interest  through  the  authorities  of  their  own  country. 

Art.  5.  Military  authority  may  make  an  appeal  to  the  charitable  zeal 
of  the  inhabitants  to  receive  and,  under  its  supervision,  to  care  for  the 
sick  and  wounded  of  the  armies,  granting  to  persons  responding  to  such 
appeals  special  protection  and  certain  immunities. 

Chapter  II. — Sanitary  Formations  and  Establishments 

Art.  6.  Mobile  sanitary  formations  (i.  e.,  those  which  are  intended 
to  accompany  armies  in  the  field)  and  the  fixed  establishments  belong- 
ing to  the  sanitary  service  shall  be  protected  and  respected  by  bellig- 
erents. 

Art.  7.  The  protection  due  to  sanitary  formations  and  establish- 
ments ceases  if  they  are  used  to  commit  acts  injurious  to  the  enejny. 


GENEVA   CONVENTION   OF  1906  11,35 

Art.  8.  A  sanitary  formation  or  establishment  shall  not  be  deprived 
of  the  protection  accorded  by  article  6  by  the  fact — 

1.  That  the  personnel  of  a  formation  or  establishment  is  armed  and 
uses  its  arms  in  self-defense  or  in  defense  of  its  sick  and  wounded. 

2.  That  in  the  absence  of  armed  hospital  attendants,  the  formation 
is  guarded  by  an  armed  detachment  or  by  sentinels  acting  under  com- 
petent orders. 

3.  That  arms  or  cartridges,  taken  from  the  wounded  and  not  yet 
turned  over  to  the  proper  authorities,  are  found  in  the  formation  or 
establishment. 

Chapter  III. — Personnel 

Art.  9.  The  personnel  charged  exclusively  with  the  removal,  transpor- 
tation, and  treatment  of  the  sick  and  wounded,  as  well  as  with  the 
administration  of  sanitary  formations  and  establishments,  and  the 
chaplains  attached  to  armies,  shall  be  respected  and  protected  under 
all  circumstances.  If*  they  fall  into  the  hands  of  the  enemy  they  shall 
not  be  considered  as  prisoners  of  war. 

These  provisions  apply  to  the  guards  of  sanitary  formations  and 
establishments  in  the  case  provided  for  in  section  2  of  article  8. 

Art.  10.  The  personnel  of  volunteer  aid  societies,  duly  recognized 
and  authorized  by  their  own  governments,  who  are  employed  in  the 
sanitary  formations  and  establishments  of  armies,  are  assimilated  to 
the  personnel  contemplated  in  the  preceding  article,  upon  condition  that 
the  said  personnel  shall  be  subject  to  military  laws  and  regulations. 

Each  State  shall  make  known  to  the  other,  either  in  time  of  peace 
or  at  the  opening,  or  during  the  progress  of  hostilities,  and  in  any 
case  before  actual  employment,  the  names  of  the  societies  which  it  has 
authorized  to  render  assistance,  under  its  responsibility,  in  the  official 
sanitary  service  of  its  armies. 

Art.  11.  A  recognized  society  of  a  neutral  State  can  only  lend  the 
services  of  its  sanitary  personnel  and  formations  to  a  belligerent  with 
the  prior  consent  of  its  own  government  and  the  authority  of  such  bel- 
ligerent. The  belligerent  who  has  accepted  such  assistance  is  required 
to  notify  the  enemy  before  making  any  use  thereof. 

Art.  12.  Persons  described  in  articles  9,  10,  and  11  will  continue  in 
the  exercise  of  their  functions,  under  the  direction  of  the  enemy,  after 
they  have  fallen  into  his  power. 

When  their  assistance  is  no  longer  indispensable  they  will  be  sent 
back  to  their  army  or  country,  within  such  period  and  by  such  route 
as  may  accord  with  military  necessity.  They  will  carr}^  with  them  such 
effects,  instruments,  arms,  and  horses  as  are  their  private  property. 

Art.  13.  While  they  remain  in  his  power,  the  enemy  will  secure  to 
the  personnel  mentioned  in  Article  9  the  same  pay  and  allowances  to 
which  persons  of  the  same  grade  in  his  own  army  are  entitled. 


1136  APPENDIX  n 


Chapter  IV. — Materi^i, 

Art.  14.  If  mobile  sanitary  formations  fall  into  the  power  of  the 
enemy,  they  shall  retain  their  materiel,  including  the  teams,  whatever 
may  be  the  means  of  transportation  and  the  conducting  personnel. 
Competent  military  authority,  however,  shall  have  the  right  to  employ 
it  in  caring  for  the  sick  and  wounded.  The  restitution  of  the  materiel 
shall  take  place  in  accordance  with  the  conditions  prescribed  for  the 
sanitary  personnel,  and,  as  far  as  possible,  at  the  same  time. 

Art.  15.  Buildings  and  materiel  pertaining  to  fixed  establishments 
shall  remain  subject  to  the  laws  of  war,  but  can  not  be  diverted  from 
their  use  so  long  as  they  are  necessary  for  the  sick  and  wounded.  Com- 
manders of  troops  engaged  in  operations,  however,  may  use  them,  in 
case  of  important  military  necessity,  if,  before  such  use,  the  sick  and 
wounded  who  are  in  them  have  been  provided  for. 

Art.  16.  The  materiel  of  aid  societies  admitted*  to  the  benefits  of  this 
Convention,  in  conformity  to  the  conditions  therein  established,  is  re- 
garded as  private  property,  and,  as  such,  will  be  respected  under  all 
circumstances,  save  that  it  is  subject  to  the  recognized  right  of  requi- 
sition by  belligerents  in  conformity  to  the  laws  and  usages  of  war. 

Chapter  V. — Convoys  of  Evacuation 

Art.  17;  Convoys  of  evacuation  shall  be  treated  as  mobile  sanitary 
formations  subject  to  the  following  special  provisions : 

1.  A  belligerent  intercepting  a  convoy  may,  if  required  by  military 
necessity,  break  up  such  convoy,  charging  himself  with  the  care  of  the 
sick  and  wounded  whom  it  contains. 

2.  In  this  case  the  obligation  to  return  the  sanitary  personnel,  as 
provided  for  in  article  12,  shall  be  extended  to  include  the  entire 
military  personnel  employed,  under  competent  orders,  in  the  transpor- 
tation and  protection  of  the  convoy. 

The  obligation  to  return  the  sanitary  materiel,  as  provided  for  in 
article  14,  shall  apply  to  railway  trains  and  vessels  intended  for  interior 
navigation  which  have  been  especially  equipped  for  evacuation  pur- 
poses, as  well  as  to  the  ordinary  vehicles,  trains,  and  vessels  which 
belong  to  the  sanitary  service. 

Military  vehicles,  with  their  teams,  other  than  those  belonging  to  the 
sanitary  service,  may  be  captured. 

The  civil  personnel  and  the  various  means  of  transportation  obtained 
by  requisition,  including  railway  materiel  and  vessels  utilized  for  con- 
voys, are  subject  to  the  general  rules  of  international  law. 

Chapter  VI. — Distinctive  Emblem 

Art.  18.  Out  of  respect  to  Switzerland  the  heraldic  emblem  of  the 
red  cross  on  a  white  ground,  formed  by  the  reversal  of  the  federal 


GENEVA  CONVENTION   OF  1906  1137 

colors,  is  continued  as  the  emblem  and  distinctive  sign  of  the  sanitary 
service  of  armies. 

Art.  19.  <rhis  emblem  appears  on  flags  and  brassards  as  well  as  upon 
all  materiel  appertaining  to  the  sanitary  service,  with  the  permission 
of  the  competent  military  authority. 

Art.  20.  The  personnel  protected  in  virtue  of  the  first  paragraph  of 
article  9,  and  articles  10  and  11,  will  wear  attached  to  the  left  arm  a 
brassard  bearing  a  red  cross  on  a  white  ground,  which  will  be  issued 
and  stamped  by  competent  military  authority,  and  accompanied  by  a 
certificate  of  identity  in  the  case  of  persons  attached  to  the  sanitary 
service  of  armies  who  do  not  have  military  uniform. 

Art.  21.  The  distinctive  flag  of  the  Convention  can  only  be  displayed 
over  the  sanitary  formations  and  establishments  which  the  Convention 
provides  shall  be  respected  and  with  the  consent  of  the  military  au- 
thorities. It  shall  be  accompanied  by  the  national  flag  of  the  bellig- 
erent to  whose  service  the  formation  or  establishment  is  attached. 

Sanitary  formations  which  have  fallen  into  the  power  of  the  enemy, 
however,  shall  fly  no  other  flag  than  that  of  the  Red  Cross  so  long 
as  they  continue  in  that  situation. 

Art.  22.  The  sanitary  formations  of  neutral  countries  which,  under 
the  conditions  set  forth  in  article  11,  have  been  authorized  to  render 
their  services,  shall  fly,  with  tlie  flag  of  the  Convention,  the  national 
flag  of  the  belligerent  to  which  they  are  attached.  The  provisions  of 
the  second  paragraph  of  the  preceding  article  are  applicable  to  them. 

Art.  23.  The  emblem  of  the  red  cross  on  a  white  ground  and  the 
words  "Red  Cross"  or  "Geneva  Cross"  may  only  be  used,  whether  in 
time  of  peace  or  war,  to  protect  or  designate  sanitary  formations  and 
establishments,  the  personneland  materiel  protected  by  the  Convention. 

Chapter  VII. — Application  and  Execution  o^  the  Convention 

Art.  24.  The  provisions  of  the  present  Convention  are  obligatory 
only  on  the  contracting  Powers,  in  case  of  war  between  two  or  more 
of  them.  The  said  provisions  shall  cease  to  be  obligatory  if  one  of  the 
belligerent  Powers  should  not- be  signatory  to  the  Convention. 

Art.  25.  It  shall  be  the  duty  of  the  commanders-in-chief  of  the  bel- 
ligerent armies  to  provide  for  the  details  of  execution  of  the  fore- 
going articles,  as  well  as  for  unforeseen  cases,  in  accordance  with  the 
instructions  of  their  respective  governments,  and  conformably  to  the 
general  principles  of  this  Convention. 

Art.  26.  The  signatory  Governments  shall  take  the  necessary  steps  to 
acquaint  their  troops,  and  particularly  the  protected  personnel,  with 
the  provisions  of  this  Convention  and  to  make  them  known  to  the  peo- 
ple at  large.     *     *     * 
Scott  Int.Law— 72 


1138  APPENDIX  n 


CONVENTION  RELATIVE  TO  THE  OPENING 
OF  HOSTILITIES 


Signed  at  The  Hague,  October  18,  1907 


Article  1.  The  contracting  Powers  recognize  that  hostilities  between 
themselves  must  not  commence  without  previous  and  explicit  warning, 
in  the  form  either  of  a  reasoned  declaration  of  war  or  of  an  ultimatum 
with  conditional  declaration  of  war. 

Art.  2.  The  existence  of  a  state  of  war  must  be  notified  to  the  neutral 
Powers  without  delay,  and  shall  not  take  effect  in  regard  to  them 
until  after  the  receipt  of  a  notification,  which  may,  however,  be  given 
by  telegraph.  Neutral  Powers,  nevertheless,  cannot  rely  on  the  ab- 
sence of  notification  if  it  is  clearly  established  that  they  were  in  fact 
aware  of  the  existence  of  a  state  of  war. 

Art.  3.  Article  1  of  the  present  Convention  shall  take  effect  in  case 
of  war  between  two  or  more  of  the  contracting  Powers. 

Article  2  is  binding  as  between  a  belligerent  Power  which  is  a  party 
to  the  Convention  and  neutral  Powers  which  are  also  parties  to  the 
Convention.     *     *     * 


CONVENTION  RESPECTING  THE  LAWS  AND  CUSTOMS 
OF  WAR  ON  LAND 

Signed  at  The  Hague,  October  18,  1907 


Article  1.  The  contracting  Powers  shall  issue  instructions  to  their 
armed  land  forces  which  shall  be  in  conformity  with  the  Regulations 
respecting  the  laws  and  customs  of  war  on  land,  annexed  to  the  present 
Convention. 

Art.  2.  The  provisions  contained  in  the  Regulations  referred  to  in 
article  1,  as  well  as  in  the  present  Convention,  do  not  apply  except  be- 
tween contracting  Powers,  and  then  only  if  all  the  belligerents  are 
parties  to  the  Convention. 

Art.  3.  A  belligerent  party  which  violates  the  provisions  of  the  said 
Regulations  shall,  if  the  case  demands,  be  liable  to  pay  compensation. 
It  shall  be  responsible  for  all  acts  committed  by  persons  forming  part 
of  its  armed  forces.    *     *    * 

Scott  Int.Law 


HAGUE   CONVENTIONS   OP  1907  1139 


ANNEX  TO  THE  CONVENTION 

REGULATIONS  RESPECTING  THE  LAWS  AND  CUSTOMS  OF  WAR 

ON  LAND 


SECTION  I.— ON  BELLIGERENTS 

Chapter  I. — The  Qualifications  of  Belligerents 

Article  1.  The  laws,  rights,  and  duties  of  war  apply  not  only  to 
armies,  but  also  to  militia  and  volunteer  corps  fulfilling  the  following 
conditions : 

1.  To  be  commanded  by  a  person  responsible  for  his  subordinates; 

2.  To  have  a  fixed  distinctive  emblem  recognizable  at  a  distance ; 

3.  To  carry  arms  openly;  and 

4.  To  conduct  their  operations  in  accordance  with  the  laws  and 
customs  of  war. 

In  countries  where  militia  or  volunteer  corps  constitute  the  army. 
or  form  part  of  it,  they  are  included  under  the  denomination  "army." 

Art.  2.  The  inhabitants  of  a  territory  which  has  not  been  occupied, 
who,  on  the  approach  of  the  enemy,  spontaneously  take  up  arms  to 
resist  the  invading  troops  without  having  had  time  to  organize  them- 
selves in  accordance  with  article  1,  shall  be  regarded  as  belligerents  if 
they  carry  arms  openly  and  if  they  respect  the  laws  and  customs  of 
war. 

Art.  3.  The  armed  forces  of  the  belligerent  parties  may  consist  of 
combatants  and  non-combatants.  In  the  case  of  capture  by  the  enemy, 
both  have  a  right  to  be  treated  as  prisoners  of  war. 

Chapter  II. — Prisoners  of  War 

Art.  4.  Prisoners  of  war  are  in  the  power  of  the  hostile  Government, 
but  not  of  the  individuals  or  corps  who  capture  them. 

They  must  be  humanely  treated. 

All  their  personal  belongings,  except  arms,  horses,  and  military  pa- 
pers, remain  their  property. 

Art.  5.  Prisoners  of  war  may  be  interned  in  a  town,  fortress,  camp, 
or  other  place,  and  bound  not  to  go  beyond  certain  fixed  limits ;  but 
they  can  not  be  confined  except  as  an  indispensable  measure  of  safety 
and  only  while  the  circumstances  which  necessitate  the  measure  con- 
tinue to  exist. 

Art.  6.  The  State  may  utilize  the  labor  of  prisoners  of  war  accord- 
ing to  their  rank  and  aptitude,  officers  excepted.  The  tasks  shall  not 
be  excessive  and  shall  have  no  connection  with  the  operations  of  the 
war. 

Prisoners  may  be  authorized  to  work  for  the  public  service,  for 
private  persons,  or  on  their  own  account. 


1140  APPENDIX  n 

Work  done  for  the  State  is  paid  for  at  the  rates  in  force  for  work 
of  a  similar  kind  done  by  soldiers  of  the  national  army,  or,  if  there 
are  none  in  force,  at  a  rate  according  to  the  work  executed. 

When  the  work  is  for  other  branches  of  the  public  service  or  for 
private  persons  the  conditions  are  settled  in  agreement  with  the  mili- 
tary authorities. 

The  wages  of  the  prisoners  shall  go  towards  improving  their  posi- 
tion, and  the  balance  shall  be  paid  them  on  their  release,  after  de- 
ducting the  cost  of  their  maintenance. 

Art.  7.  The  Government  into  whose  hands  prisoners  of 'war  have 
fallen  is  charged  with  their  maintenance. 

In  the  absence  of  a  special  agreement  between  the  belligerents,  pris- 
oners of  war  shall  be  treated  as  regards  board,  lodging,  and  clothing 
on  the  same  footing  as  the  troops  of  the  Government  who  captured 
them. 

Art.  8.  Prisoners  of  war  shall  be  subject  to  the  laws,  regulations,  and 
orders  in  force  in  the  army  of  the  State  in  whose  power  they  are.  Any 
act  of  insubordination  justifies  the  adoption  towards  them  of  such 
measures  of  severity  as  may  be  considered  necessary. 

Escaped  prisoners  who  are  retaken  before  being  able  to  rejoin  their 
own  army  or  before  leaving  the  territory  occupied  by  the  army  which 
captured  them  are  liable  to  disciplinary  punishment. 

Prisoners  who,  after  succeeding  in  escaping,  are  again  taken  pris- 
oners, are  not  liable  to  any  punishment  on  account  of  the  previous 
flight. 

Art.  9.  Every  prisoner  of  war  is  bound  to  give,  if  he  is  questioned 
on  the  subject,  his  true  name  and  rank,  and  if  he  infringes  this  rule,  he 
is  liable  to  have  the  advantages  given  to  prisoners  of  his  class  curtailed. 

Art.  10.  Prisoners  of  war  may  be  set  at  liberty  on  parole  if  the  laws 
of  their  country  allow,  and,  in  such  cases,  they  are  bound,  on  their 
personal  honor,  scrupulously  to  fulfil,  both  towards  their  own  Govern- 
ment and  the  Government  by  whom  they  were  made  prisoners,  the  en- 
gagements they  have  contracted. 

In  such  cases  their  own  Government  is  bound  neither  to  require  of 
nor  accept  from  them  any  service  incompatible  with  the  parole  given. 

Art.  11.  A  prisoner  of  war  can  not  be  compelled  to  accept  his  liberty 
on  parole;  similarly  the  hostile  Government  is  not  obliged  to  accede 
to  the  request  of  the  prisoner  to  be  set  at  liberty  on  parole. 

Art.  12.  Prisoners  of  war  liberated  on  parole  and  recaptured  bearing 
arms  against  the  Government  to  whom  they  had  pledged  their  honor,  or 
against  the  allies  of  that  Government,  forfeit  their  right  to  be  treated 
as  prisoners  of  war,  and  can  be  brought  before  the  courts. 

Art.  13.  Individuals  who  follow  an  army  without  directly  belonging 
to  it,  such  as  newspaper  correspondents  and  reporters,  sutlers  and  con- 
tractors, who  fall  into  the  enemy's  hands  and  whom  the  latter  thinks 
expedient  to  detain,  are  entitled  to  be  treated  as  prisoners  of  war,  pro- 


HAGUE   CONVENTIONS  OF  1907  1141 

vided  they  are  in  possession  of  a  certificate  from  the  military  authori- 
ties of  the  army  which  they  were  accompanying. 

Art.  14.  An  inquiry  office  for  prisoners  of  war  as  instituted  on  the 
commencement  of  hostihties  in  each  of  the  belHgerent  States,  and, 
when  necessary,  in  neutral  countries  which  have  received  belligerents 
in  their  territory.  It  is  the  function  of  this  office  to  reply  to  all  in- 
quiries about  the  prisoners.  It  receives  from  the  various  services  con- 
cerned full  information  respecting  internments  and  transfers,  releases 
on  parole,  exchanges,  escapes,  admissions  into  hospital,  deaths,  as  well 
as  other  information  necessary  to  enable  it  to  make  out  and  keep  up 
to  date  an  individual  return  for  each  prisoner  of  war.  The  office  must 
state  in  this  return  the  regimental  number,  name  and  surname,  age, 
place  of  origin,  rank,  unit,  wounds,  date  and  place  of  capture,  intern- 
ment, wounding,  and  death,  as  well  as  any  observations  of  a  special 
character.  The  individual  return  shall  be  sent  to  the  Government  of 
the  other  belligerent  after  the  conclusion  of  peace. 

It  is  likewise  the  function  of  the  inquiry  office  to  receive  and  collect 
all  objects  of  personal  use,  valuables,  letters,  etc.,  found  on  the  field 
of  battle  or  left  by  prisoners  who  have  been  released  on  parole,  or 
exchanged,  or  who  have  escaped,  or  died  in  hospitals  or  ambulances, 
and  to  forward  them  to  those  concerned. 

Art.  15.  Relief  societies  for  prisoners  of  war,  which  are  properly 
constituted  in  accordance  with  the  laws  of  their  country  and  with  the 
object  of  serving  as  the  channel  for  charitable  effort  shall  receive  from 
the  belligerents,  for  themselves  and  their  duly  accredited  agents  eveiT 
facility  for  the  efficient  performance  of  their  humane  task  within  the 
bounds  imposed  by  military  necessities  and  administrative  regulations. 
Agents  of  these  societies  may  be  admitted  to  the  places  of  internment 
for  the  purpose  of  distributing  relief,  as  also  to  the  halting  places  of 
repatriated  prisoners,  if  furnished  with  a  personal  permit  by  the  mili- 
tary authorities,  and  on  giving  an  undertaking  in  writing  to  comply 
with  all  measures  of  order  and  police  which  the  latter  may  issue. 

Art.  16.  Inquiry  offices  enjoy  the  privilege  of  free  postage.  Letters, 
money  orders,  and  valuables,  as  well  as  parcels  by  post,  intended  for 
prisoners  of  war,  or  dispatched  by  them,  shall  be  exempt  from  all 
postal  duties  in  the  countries  of  origin  and  destination,  as  well  as  in 
the  countries  they  pass  through. 

Presents  and  relief  in  kind  for  prisoners  of  war  shall  be  admitted 
free  of  all  import  or  other  duties,  as  well  as  of  payments  for  carriage 
by  the  State  railways. 

Art.  17.  Officers  taken  prisoners  shall  receive  the  same  rate  of  pay 
as  officers  of  corresponding  rank  in  the  country  where ,  they  are  de- 
tained, the  amount  to  be  ultimately  refunded  by  their  own  Govern- 
ment. 

Art.  18.  Prisoners  of  war  shall  enjoy  complete  liberty  in  the  exer- 
cise of  their  religion,  including  attendance  at  the  services  of  whatever 


1142  APPENDIX   II 

church  they  may  belong  to,  on  the  sole  condition  that  they  comply  with 
the  measures  of  order  and  police  issued  by  the  military  authorities. 

Art.  19.  The  wills  of  prisoners  of  war  are  received  or  drawn  up  in 
the  same  way  as  for  soldiers  of  the  national  army. 

The  same  rules  shall  be  observed  regarding  death  certificates  as  well 
as  for  the  burial  of  prisoners  of  war,  due  regard  being  paid  to  their 
grade  and  rank. 

Art.  20.  After  the  conclusion  of  peace,  the  repatriation  of  prisoners 
of  war  shall  be  carried  out  as  quickly  as  possible. 

Chapter  III. — The  Sick  and  Wounded 

Art.  21.  The  obligations  of  belligerents  with  regard  to  the  sick  and 
wounded  are  governed  by  the  Geneva  Convention. 

SECTION  II.— HOSTILITIES 

Chapter  I. — Means  of  Injuring  the  Enemy,  Sieges,  and  Bom- 
bardments 

Art.  22.  The  right  of  belligerents  to  adopt  means  of  injuring  the 
enemy  is  not  unlimited. 

Art.  23.  In  addition  to  the  prohibitions  provided  by  special  Conven- 
tions, it  is  especially  forbidden — 

(a)  To  employ  poison  or  poisoned  weapons  ; 

(b)  To  kill  or  wound  treacherously  individuals  belonging  to  the 
hostile  nation  or  army ; 

(c)  To  kill  or  wound  an  enemy  who,  having  laid  down  his  arms,  or 
having  no  longer  means  of  defence,  has  surrendered  at  discretion ; 

(d)  To  declare  that  no  quarter  will  be  given ; 

(e)  To  employ  arms,  projectiles,  or  material  calculated  to  cause 
unnecessary  suffering; 

(f)  To  make  improper  use  of  a  flag  of  truce,  of  the  national  flag 
or  of  the  mihtary  insignia  and  uniform  of  the  enemy,"  as  well  as  the 
distinctive  badges  of  the  Geneva  Convention ; 

(g)  To  destroy  or  seize  the  enemy's  property,  unless  such  destruction 
or  seizure  be  imperatively  demanded  by  the  necessities  of  war; 

(h)  To  declare  abolished,  suspended,  or  inadmissible  in  a  court  of  law 
the  rights  and  actions  of  the  nationals  of  the  hostile  party. 

A  belligerent  is  likewise  forbidden  to  compel  the  nationals  of  the 
hostile  party  to  take  part  in  the  operations  of  war  directed  against  their 
own  country,  even  if  they  were  in  the  belligerent's  service  before 
the  commencement  of  the  war. 

Art.  24.  Ruses  of  war  and  the  employment  of  measures  necessary 
for  obtaining  information  about  the  enemy  and  the  country  are  con- 
sidered permissible. 


HAGUE   CONVENTIONS  OF  1907  114:? 

Art.  25.  The  attack  or  bombardment,  hy  whatever  means,  of  towns, 
villages,  dwellings,  or  buildings  which  are  undefended  is  prohibited. 

Art.  26.  The  officer  in  command  of  an  attacking  force  must,  before 
commencing  a  bombardment,  except  in  cases  of  assault,  do  all  in  his 
power  to  warn  the  authorities. 

Art.  27.  In  sieges  and  bombardments  all  necessary  steps  must  be 
taken  to  spare,  as  far  as  possible,  buildings  dedicated  to  religion,  art. 
science,  or  charitable  purposes,  historic  monuments,  hospitals,  and 
places  where  the  sick  and  wounded  are  collected,  provided  they  are 
not  being  used  at  the  time  for  military  purposes. 

It  is  the  duty  of  the  besieged  to  indicate  the  presence  of  such  build- 
ings or  places  by  distinctive  and  visible  signs,  which  shall  be  notified  to 
the  enemy  beforehand. 

Art.  28.  The  pillage  of  a  town  or  place,  even  when  taken  by  assault, 
is  prohibited. 

Chapter  II. — Spies 

Art.  29.  A  person  can  only  be  considered  a  spy  when,  acting  clan- 
destinely or  on  false  pretences,  he  obtains  or  endeavors  to  obtain  in- 
formation in  the  zone  of  operations  of  a  belligerent,  with  the  intention 
of  communicating  it  to  the  hostile  party. 

Thus,  soldiers  not  wearing  a  disguise  who  have  penetrated  into  the 
zone  of  operations  of  the  hostile  army,  for  the  purpose  of  obtaining 
information,  are  not  considered  spies.  Similarly,  the  following  are  not 
considered  spies :  Soldiers  and  civilians,  carrying  out  their  mission 
openly,  intrusted  with  the  delivery  of  despatches  intended  either  for 
their  own  army  or  for  the  enemy's  army.  To  this  class  belong  like- 
wise persons  sent  in  balloons  for  the  purpose  of  carrying  despatches 
and,  generally,  of  maintaining  communications  between  the  different 
parts  of  an  army  or  a  territory. 

Art.  30.  A  spy  taken  in  the  act  shall  not  be  punished  without  pre- 
vious trial. 

Art.  31.  A  spy  who,  after  rejoining  the  army  to  which  he  belongs,  is 
subsequently  captured  by  the  enemy,  is  treated  as  a  prisoner  of  war, 
and  incurs  no  responsibility  for  his  previous  acts  of  espionage. 

Chapter  III. — Flags  of  Truce 

Art.  32.  A  person  is  regarded  as  a  parlementaire  who  has  been  au- 
thorized by  one  of  the  belligerents  to  enter  into  communication  with 
the  other,  and  who  advances  bearing  a  white  flag.  He  has  a  right  to 
inviolability,  as  well  as  the  trumpeter,  bugler  or  drummer,  the  flag- 
bearer  and  interpreter  who  may  accompany  him. 

Art.  2)Z.  The  commander  to  whom  a  parlementaire  is  sent  is  not 
in  all  cases  obliged  to  receive  him. 


1144  APPENDIX   U 

He  may  take  all  the  necessary  steps  to  prevent  the  parlementaire  tak- 
ing advantage  of  his  mission  to  obtain  information. 

In  case  of  abuse,  he  has  the  right  to  detain  the  parlementaire  tem- 
porarily. 

Art.  34.  The  parlementaire  loses  his  rights  of  inviolability  if  it  is 
proved  in  a  clear  and  incontestable  manner  that  he  has  taken  advantage 
of  his  privileged  position  to  provoke  or  commit  an  act  of  treason. 

Chapter  IV. — Capitulations 

Art.  35.  Capitulations  agreed  upon  between  the  contracting  Parties 
must  take  into  account  the  rules  of  military  honor. 

Once  settled,  they  must  be  scrupulously  observed  by  both  parties. 

Chapter  V. — Armistices 

Art.  36.  An  armistice  suspends  military  operations  by  mutual  agree- 
rAent  between  the  belligerent  parties.  If  its  duration  is  not  defined, 
the  belligerent  parties  may  resume  operations  at  any  time,  provided 
always  that  the  enemy  is  warned  within  the  time  agreed  upon,  in  ac- 
cordance with  the  terms  of  the  armistice. 

Art.  37.  An  armistice  may  be  general  or  local.  The  first  suspends 
the  military  operations  of  the  belligerent  States  everywhere ;  the  sec- 
ond only  between  certain  fractions  of  the  belligerent  armies  and  within 
a  fixed  radius. 

Art.  38.  An  armistice  must  be  notified  officially  and  in  good  time  to 
the  competent  authorities  and  to  the  troops.  Hostilities  are  suspended 
immediately  after  the  notification,  or  on  the  date  fixed. 

Art.  39.  It  rests  with  the  contracting  Parties  to  settle,  in  the  terms 
of  the  armistice,  what  communications  may  be  held  in  the  theatre  of 
war  with  the  inhabitants  and  between  the  inhabitants  of  one  belligerent 
State  and  those  of  the  other. 

Art.  40.  Any  serious  violation  of  the  armistice  by  one  of  the  parties 
gives  the  other  party  the  right  of  denouncing  it,  and  even,  in  cases  of 
urgency,  of  recommencing  hostilities  immediately. 

Art.  41.  A  violation  of  the  terms  of  the  armistice  by  private  per- 
sons acting  on  their  own  initiative  only  entitles  the  injured  party  to 
demand  the  punishment  of  the  ofifenders,  or,  if  necessary,  compensa- 
tion for  the  losses  sustained. 

SECTION  III.— MILITARY  AUTHORITY  OVER  THE  TERRI- 
TORY OF  THE  HOSTILE  STATE 

Art.  42.  Territory  is  considered  occupied  when  it  is  actually  placed 
under  the  authority  of  the  hostile  army. 

The  occupation  extends  only  to  the  territory  where  such  authority 
has  been  established  and  can  be  exercised. 

Art.  43.  The  authority  of  the  legitimate  power  having  in  fact  passed 


HAGUE   CONVENTIONS  OF  1907  1145 

into  the  hands  of  the  occupant,  the  latter  shall  take  all  the  measures 
in  his  power  to  restore,  and  ensure,  as  far  as  possible,  public  order  and" 
safety,  while  respecting,  unless  absolutely  prevented,  the  laws  in  force 
in  the  country. 

Art.  44.  A  belligerent  is  forbidden  to  force  the  inhabitants  of  ter- 
ritory occupied  by  it  to  furnish  information  about  the  army  of  the 
other  belligerent,  or  about  its  means  of  defense. 

Art.  45.  It  is  forbidden  to  compel  the  inhabitants  of  occupied  terri- 
tory to  swear  allegiance  to  the  hostile  Power. 

Art.  46.  Family  honor  and  rights,  the  lives  of  persons,  and  private 
property,  as  well  as  religious  convictions  and  practice,  must  be  re- 
spected. 

Private  property  can  not  be  confiscated. 

Art.  47.  Pillage  is  formally  forbidden. 

Art.  48.  If,  in  the  territory  occupied,  the  occupant  collects  the  taxes, 
dues,  and  tolls  imposed  for  the  benefit  of  the  State,  he  shall  do  so,  as 
far  as  is  possible,  in  accordance  with  the  rules  of  assessment  and  in- 
cidence in  force,  and  shall  in  consequence  be  bound  to  defray  the  ex- 
penses of  the  administration  of  the  occupied  territory  to  the  same  ex- 
tent as  the  legitimate  Government  was  so  bound. 

Art.  49.  If,  in  addition  to  the  taxes  mentioned  in  the  above  article, 
the  occupant  levies  other  money  contributions  in  the  occupied  terri- 
tory, this  shall  only  be  for  the  needs  of  the  army  or  of  the  adminis- 
tration of  the  territory  in  question. 

Art.  50.  No  general  penalty,  pecuniary  or  otherwise,  shall  be  in- 
flicted upon  the  population  on  account  of  the  acts  of  individuals  for 
which  they  can  not  be  regarded  as  jointly  and  severally  responsible. 

Art.  51.  No  contribution  shall  be  collected  except  under  a  written 
order,  and  on  the  responsibility  of  a  commander-in-chief. 

The  collection  of  the  said  contribution  shall  only  be  effected  as  far 
as  possible  in  accordance  with  the  rules  of  assessment  and  incidence 
of  the  taxes  in  force. 

For  every  contribution  a  receipt  shall  be  given  to  the  contributors. 

Art.  52.  Requisitions  in  kind  and  services  shall  not  be  demanded  from 
municipalities  or  inhabitants  except  for  the  needs  of  the  army  of  oc- 
cupation. They  shall  be  in  proportion  to  the  resources  of  the  coun- 
try, and  of  such  a  nature  as  not  to  involve  the  inhabitants  in  the  obli- 
gation of  taking  part  in  military  operations  against  their  own  coun- 
try. 

Such  requisitions  and  services  shall  only  be  demanded  on  the  au- 
thority of  the  commander  in  the  locality  occupied. 

Contributions  in  kind  shall  as  far  as  possible  be  paid  for  in  cash ; 
if  not,  a  receipt  shall  be  given  and  the  payment  of  the  amount  due  shall 
be  made  as  soon  as  possible. 

Art.  53.  An  army  of  occupation  can  only  take  possession  of  cash, 
funds,  and  realizable  securities  which  are  strictly  the  property  of  the 
State,  depots  of  arms,  means  of  transport,  stores  and  supplies,  and. 


1146  APPENDIX  n 

generally,  all  movable  property  belonging  to  the  State  which  may  be 
used  for  military  operations. 

All  appliances,  whether  on  land,  at  sea,  or  in  the  air,  adapted  for 
the  transmission  of  news,  or  for  the  transport  of  persons  or  things, 
exclusive  of  cases  governed  by  naval  law,  depots  of  arms,  and,  gen- 
erally, all  kinds  of  munitions  of  war,  may  be  seized,  even  if  they  be- 
long to  private  individuals,  but  must  be  restored  and  *  compensation 
fixed  when  peace  is  made. 

Art.  54.  Submarine  cables  connecting  an  occupied  territory  with  a 
neutral  territdry  shall  not  be  seized  or  destroyed  except  in  the  case  of 
absolute  necessity.  They  must  likewise  be  restored  and  compensation 
fixed  when  peace  is  made. 

Art.  55.  The  occupying  State  shall  be  regarded  only  as  administra- 
tor and  usufructuary  of  public  buildings,  real  estate,  forests,  and  agri- 
cultural estates  belonging  to  the  hostile  State,  and  situated  in  the  oc- 
cupied country.  It  must  safeguard  the  capital  of  these  properties,  and 
administer  them  in  accordance  with  the  rules  of  usufruct. 

Art.  56.  The  property  of  municipalities,  that  of  institutions  dedicated 
to  religion,  charity  and  education,  the  arts  and  sciences,  even  when 
State  property,  shall  be  treated  as  private  property. 

All  seizure  of, ^destruction  or  willful  damage  done  to  institutions  of 
this  character,  historic  monuments,  works  of  art  and  science,  is  for- 
bidden, and  should  be  made  the  subject  of  legal  proceedings. 


CONVENTION  RESPECTING  THE  RIGHTS  AND  DUTIES 

OF  NEUTRAL  POWERS  AND  PERSONS  IN 

CASE  OF  WAR  ON  LAND 

Signed  at  The  Hague,  October  18,  1907 


Chapter  I. — Thi;  Rights  and  Duties  of  Neutral  Powers 

Article  1.  The  territory  of  neutral  Powers  is  inviolable. 

Art.  2.  Belligerents  are  forbidden  to  move  troops  or  convoys  of 
either  munitions  of  war  or  supplies  across  the  territory  of  a  neu.tral 
Power. 

Art.  3.  Belligerents  are  likewise  forbidden  to — 

(a)  Erect  on  the  territory  of  a  neutral  Power  a  wireless  telegraphy 
station  or  other  apparatus  for  the  purpose  of  communicating  with  bel- 
ligerent forces  on  land  or  sea; 

(b)  Use  any  installation  of  this  kind  established  by  them  before 
the  war  on  the  territory  of  a  neutral  Power  for  purely  military  pur- 
poses, and  which  has  not  been  opened  for  the  service  of  public  mes- 
sages. 


HAGUE   CONVENTIONS  OF  1907  1147 

Art.  4.  Corps  of  combatants  can  not  be  formed  nor  recruiting  agen- 
cies opened  on  the  territory  of  a  neutral  Power  to  assist  the  beUiger- 
ents. 

Art.  5,  A  neutral  Power  must  not  allow  any  of  the  acts  referred  to 
in  articles  2  to  4  to  occur  on  its  territory. 

It  is  not  called  upon  to  punish  acts  in  violation  of  its  neutrality 
unless  the  said  acts  have  been  committed  on  its  own  territory. 

Art.  6.  The  responsibility  of  a  neutral  Power  is  not  engaged  by 
the  fact  of  persons  crossing  the  frontier  separately  to  offer  their  serv- 
ices to  one  of  the  belligerents. 

Art.  7.  A  neutral  Power  is  not  called  upon  to  prevent  the  export 
or  transport,  on  behalf  of  one  or  other  of  the  belligerents,  of  arms, 
munitions  of  war,  or,  in  general,  of  anything  which  can  be  of  use  to 
an  army  or  a  fleet. 

Art.  8.  A  neutral  Power  is  not  called  upon  to  forbid  or  restrict  the 
use  on  behalf  of  the  belligerents  of  telegraph  or  telephone  cables  or  of 
wireless  telegraphy  apparatus  belonging  to  it  or  to  companies  or  pri- 
vate individuals. 

Art.  9.  Every  measure  of  restriction  or  prohibition  taken  by  a  neu- 
tral Power  in  regard  to  the  matters  referred  to  in  articles  7  and  8  must 
be  impartially  applied  by  it  to  both  belligerents. 

A  neutral  Power  must  see  to  the  same  obligation  being  observed 
by  companies  or  private  individuals  owning  telegraph  or  telephone 
cables  or  wireless  telegraphy  apparatus. 

Art.  10.  The  fact  of  a  neutral  Power  resisting,  even  by  force,  at- 
tempts to  violate  its  neutrality  can  not  be  regarded  as  a  hostile  act. 

Chapter  II. — BelligereInts  Interned  and  Wounded  Tended  in 
Neutral  Territory 

Art.  11.  A  neutral  Power  which  receives  on  its  territory  troops  be- 
longing to  the  belligerent  armies  shall  intern  them,  as  far  as  possible, 
at  a  distance  from  the  theatre  of  war. 

It  may  keep  them  in  camps  and  even  confine  them  in  fortresses  or 
in  places  set  apart  for  this  purpose. 

It  shall  decide  whether' officers  can  be  left  at  liberty  on  giving  their 
parole  not  to  leave  the  neutral' territory  without  permission. 

Art.  12.  In  the  absence  of  a  special  convention  to  the  contrary,  the 
neutral  Power  shall  supply  the  interned  with  the  food,  clothing,  and 
relief  required  by  humanity. 

At  the  conclusion  of  peace  the  expenses  caused  by  the  internment 
shall  be  made  good. 

Art.  13.  A  neutral  Power  which  receives  escaped  prisoners  of  war 
shall  leave  them  at  liberty.  If  it  allows  them  to  remain  in  its  territory 
it  may  assign  them  a  place  of  residence. 

The  same  rule  applies  to  prisoners  of  war  brought  by  troops  taking 
refuge  in  the  territory  of  a  neutral  Power. 


1148  APPENDIX   II 

Art.  14.  A  neutral  Power  may  authorize  the  passage  over  its  terri- 
tory of  the  sick  and  wounded  belonging  to  the  belligerent  armies,  on 
condition  that  the  trains  bringing  them  shall  carry  neither  personnel 
nor  war  material.  In  such  a  case,  the  neutral  Power  is  bound  to  take 
whatever  measures  of  safety  and  control  are  necessary  for  the  purpose. 

The  sick  or  wounded  brought  under  these  conditions  into  neutral 
territory  by  one  of  the  belligerents,  and  belonging  to  the  hostile  party, 
must  be  guarded  by  the  neutral  Power  so  as  to  ensure  their  not  taking 
part  again  in  the  military  operations.  The  same  duty  shall  devolve 
on  the  neutral  State  with  regard  to  wounded  or  sick  of  the  other  army 
who  may  be  committed  to  its  care. 

Art.  15.  The  Geneva  Convention  applies  to  sick  and  wounded  in- 
terned in  neutral  territory. 

Chapti^r  III. — Neutral  Persons 

Art.  16.  The  nationals  of  a  State  which  is  not  taking  part  in  the 
war  are  considered  as  neutrals. 

Art.  17.  A  neutral  can  not  avail  himself  of  his  neutrality — 

(a)  If  he  commits  hostile  acts  against  a  belligerent ; 

(b)  If  he  commits  acts  in  favor  of  a  belligerent,  particularly  if  he 
voluntarily  enlists  in  the  ranks  of  the  armed  force  of  one  of  the  parties. 

In  such  a  case,  the  neutral  shall  not  be  more  severely  treated  by  the 
belligerent  as  against  whom  he  has  abandoned  his  neutrality  than  a 
national  of  the  other  belligerent  State  could  be  for  the  same  act. 

Art.  18.  The  following  acts  shall  not  be  considered  as  committed  in 
favor  of  one  belligerent  in  the  sense  of  article  17,  letter  (b) : 

(a)  Supplies  furnished  or  loans  made  to  one  of  the  belligerents,  pro- 
vided that  the  person  who  furnishes  the  supplies  or  who  makes  the 
loans  lives  neither  in  the  territory  of  the  other  party  nor  in  the  territory 
occupied  by  him,  and  that  the  supplies  do  not  come  from  these  ter- 
ritories ; 

(b)  Services  rendered  in  matters  of  police  or  civil  administration. 

Chapter  IV. — ^Railway  Material 

Art.  19.  Railway  material  coming  from  the  territory  of  neutral  Pow- 
ers, whether  it  be  the  property  of  the  said  Powers  or  of  companies  or 
private  persons,  and  recognizable  as  such,  shall  not  be  requisitioned 
or  utilized  by  a  belligerent  except  where  and  to  the  extent  that  it  is 
absolutely  necessary.  It  shall  be  sent  back  as  soon  as  possible  to  the 
country  of  origin. 

A  neutral  Power  may  likewise,  in  case  of  necessity,  retain  and  util- 
ize to  an  equal  extent  material  coming  from  the  territory  of  the  belliger- 
ent Power. 

Compensation  shall  be  paid  by  one  party  or  the  other  in  proportion 
to  the  material  used,  and  to  the  period  of  usage. 


hague  conventions  of  1907  11a9 

Chapte^r  v. — Final  Provisions 

Art.  20.  The  provisions  of  the  present  Convention  do  not  apply  ex- 
cept between  contracting  Powers,  and  then  only  if  all  the  belligerents 
are  parties  to  the  Convention.     *     *     * 


CONVENTION  RELATING  TO  THE  STATUS  OF  ENEMY 

MERCHANT  SHIPS  AT  THE  OUTBREAK 

OF  HOSTILITIES 

Signed  at  The  Hague,  October  18,  1907 


Article  1.  When  a  merchant  ship  belonging  to  one  of  the  belligerent 
Powers  is  at  the  commencement  of  hostilities  in  an  enemy  port,  it  is 
desirable  that  it  should  be  allowed  to  depart  freely,  either  immediately, 
or  after  a  reasonable  number  of  days  of  grace,  and  to  proceed, 
after  being  furnished  with  a  pass,  direct  to  its  port  of  destination  or 
any  other  port  indicated. 

The  same  rule  should  apply  in  the  case  of  a  ship  which  has  left  its 
last  port  of  departure  before  the  commencement  of  the  war  and  en- 
tered a  port  belonging  to  the  enemy  while  still  ignorant  that  hostilities 
had  broken  out. 

Art.  2.  A  merchant  ship  unable,  owing  to  circumstances  of  force 
majeure,  to  leave  the  enemy  port  within  the  period  contemplated  in  the 
above  article,  or  which  was  not  allowed  to  leave,  can  not  be  confiscated. 

The  belligerent  may  only  detain  it,  without  payment  of  compen- 
sation, but  subject  to  the  obligation  of  restoring  it  after  the  war, 
or  requisition  it  on  payment  of  compensation. 

Art.  3.  Enemy  merchant  ships  which  left  their  last  port  of  departure 
before  the  commencement  of  the  war,  and  are  encountered  on  the 
high  seas  while  still  ignorant  of  the  outbreak  of  hostilities  can  not  be 
confiscated.  They  are  only  liable  to  detention  on  the  understanding 
that  they  shall  be  restored  after  the  war  without  compensation,  or  to  be 
requisitioned,  or  even  destroyed,  on  payment  of  compensation,  but  in 
such  cases  provision  must  be  made  for  the  safety  of  the  persons  on 
board  as  well  as  the  security  of  the  ship's  papers. 

After  touching  at  a  port  in  their  own  country  or  at  a  neutral  port, 
these  ships  are  subject  to  the  laws  and  customs  of  maritime  war. 

Art.  4.  Enemy  cargo  on  board  the  vessels  referred  to  in  articles  1 
and  2  is  likewise  liable  to  be  detained  and  restored  after  the  termina- 
tion of  the  war  without  payment  of  compensation,  or  to  be  requisitioned 
on  payment  of  compensation,  with  or  without  the  ship. 

The  same  rule  applies  in  the  case  of  cargo  on  board  the  vessels  re- 
ferred to  in  article  3. 

Art.  5.  The  present  Convention  does  not  affect  merchant  ships  whose 
build  shows  that  they  are  intended  for  conversion  into  war-ships. 


1150  APPENDIX  n 


Art.  6.  The  provisions  of  the  present  Convention  do  not  apply  ex- 
cept between  rontrac'.ing  Powers,  and  then  only  if  all  the  belligerents 
are  parties  to  tne  Convention.     *     *     * 


CONVENTION   RELATING  TO  THE   CONVERSION   OP 
MERCHANT  SHIPS  INTO  WAR  SHIPS 

Signed  at  The  Hague,  October  18,  1907 


Article  1.  A  merchant  ship  converted  into  a  war  ship  can  not  have 
the  rights  and  duties  accruing  to  such  vessels  unless  it  is  placed  un- 
der the  direct  authority,  immediate  control,  and  responsibility  of  the 
Power  whose  flag  it  flies. 

Art.  2.  Merchant  ships  converted  into  war  ships  must  bear  the  ex- 
ternal marks  which  distinguish  the  war  ships  of  their  nationality. 

Art.  3.  The  commander  must  be  in  the  service  of  the  State  and  duly 
commissioned  by  the  competent  authorities.  His  name  must  figure  on 
the  list  of  the  officers  of  the  fighting  fleet. 

Art.  4.  The  crew  must  be  subject  to  military  discipline. 

Art.  5.  Every  merchant  ship  converted  into  a  war  ship  must  observe 
in  its  operations  the  laws  and  customs  of  war. 

Art.  6.  A  belligerent  who  converts  a  merchant  ship  into  a  war  ship 
must,  as  soon  as  possible,  announce  such  conversion  in  the  hst  of  war 
ships. 

Art.  7.  The  provisions  of  the  present  Convention  do  not  apply  ex- 
cept between  contracting  Powers,  and  then  only  if  all  the  belligerents 
are  parties  to  the  Convention.     *     *     * 


CONVENTION   RELATIVE  TO  THE  LAYING  OF  AUTO- 
MATIC SUBMARINE  CONTACT  MINES 

Signed  at  The  Hague,  October  18,  1907 


Article  1.  It  is  forbidden — 

L  To  lay  unanchored  automatic  contact  mines,  except  when  they 
are  so  constructed  as  to  become  harmless  one  hour  at  most  after  the 
person  who  laid  them  ceases  to  control  them ; 

2.  To  lay  anchored  automatic  contact  mines  which  do  not  become 
harmless  as  soon  as  they  have  broken  loose  from  their  moorings ; 

3.  To  use  torpedoes  which  do  not  become  harmless  when  they  have 
missed  their  mark. 

Art.  2.  It  is  forbidden  to  lay  automatic  contact  mines  off  the  coast 
and  ports  of  the  enemy,  with  the  sole  object  of  intercepting  commer- 
cial shipping. 


HAGUE   CONVENTIONS  OF  1907  1151 

Art.  3.  When  anchored  automatic  contact  mines  are  employed,  ev- 
ery possible  precaution  must  be  taken  for  the  security  of  peaceful  ship- 
ping. 

The  belligerents  undertake  to  do  their  utmost  to  render  these  mmes 
harmless  within  a  limited  time,  and,  should  they  cease  to  be  under  sur- 
veillance, to  notify  the  danger  zones  as  soon  as  military  exigencies 
permit,  by  a  notice  addressed  to  ship  owners,  which  must  also  be  com- 
municated to  the  Governments  tlirough  the  diplomatic  channel. 

Art.  4.  Neutral  Powers  which  lay  automatic  contact  mines  off  their 
coasts  must  observe  the  same  rules  and  take  the  same  precautions  as 
are  imposed  on  belligerents. 

The  neutral  Power  must  inform  ship  owners,  by  a  notice  issued  in 
advance,  where  automatic  contact  mines  have  been  laid.  This  notice 
must  be  communicated  at  once  to  the  Governments  through  the  diplo- 
matic channel. 

Art.  5.  At  the  close  of  the  war,  the  contracting  Powers  undertake 
to  do  their  utmost  to  remove  the  mines  which  they  have  laid,  each 
Power  removing  its  own  mines. 

As  regards  anchored  automatic  contact  mines  laid  by  one  of  the 
belligerents  off  the  coast  of  the  other,  their  position  must  be  notified 
to  the  other  party  by  the  Power  which  laid  them,  and  each  Power 
must  proceed  with  the  least  possible  delay  to  remove  the  mines  in 
its  own  waters. 

Art.  6.  The  contracting  Powers  which  do  not  at  present  own  per- 
fected mines  of  the  pattern  contemplated  in  the  present  Convention, 
and  which,  consequently,  could  not  at  present  carry  out  the  rules  laid 
down  in  articles  1  and  3,  undertake  to  convert  the  materiel  of  their 
mines  as  soon  as  possible,  so  as  to  bring  it  into  conformity  with  the 
foregoing  requirements. 

Art.  7.  The  provisions  of  the  present  Convention  do  not  apply  ex- 
cept between  contracting  Powers,  and  then  only  if  all  the  belligerents 
are  parties  to  the  Convention.     *     *     * 


CONVENTION   CONCERNING  BOMBARDMENT   BY 
NAVAL  FORCES  IN  TIME  OF  WAR 

Signed  at  The  Hague,  October  18,  1907 


Chapter  I. — The  Bombardment  oe  Undefended  Ports,  Towns, 
ViLivAGEs,  Dwellings,  or  Buildings 

Article  1.  The  bombardment  by  naval  forces  of  undefended  ports, 
towns,  villages,  dwelHngs,  or  buildings  is  forbidden. 

A  place  cannot  be  bombarded  solely  because  automatic  submarine 
contact  mines  are  anchored  oft  the  harbor. 

Art.  2.  MiUtary  works,  military  or  naval  establishments,  depots  of 


1152 


APPENDIX   n 


arms  or  war  materiel,  workshops  or  plant  which  could  be  utilized  for 
the  needs  of  the  hostile  fleet  or  army,  and  the  ships  of  war  in  the 
harbor,  are  not,  however,  included  in  this  prohibition.  The  commander 
of  a  naval  force  may  destroy  them  with  artillery,  after  a  summons  fol- 
lowed by  a  reasonable  time  of  waiting,  if  all  other  means  are  impos- 
sible, and  when  the  local  authorities  have  not  themselves  destroyed 
them  within  the  time  fixed. 

He  incurs  no  responsibility  for  any  unavoidable  damage  which  may 
be  caused  by  a  bombardment  under  such  circumstances. 

If  for  military  reasons  immediate  action  is  necessary,  and  no  delay 
can  be  allowed  the  enem)'-,  it  is  understood  that  the  prohibition  to  bom- 
bard the  undefended  town  holds  good,  as  in  the  case  given  in  para- 
graph 1,  and  that  the  commander  shall  take  all  due  measures  in  order 
that  the  town  may  suffer  as  little  harm  as  possible. 

Art.  3.  After  due  notice  has  been  given,  the  bombardment  of  unde- 
fended ports,  towns,  villages,  dwellings,  or  buildings  may  be  commenced, 
if  the  local  authorities,  after  a  formal  summons  has  been  made  to  them, 
decline  to  comply  with  requisitions  for  provisions  or  supplies  neces- 
sary for  the  immediate  use  of  the  naval  force  before  the  place  in 
question. 

These  requisitions  shall  be  in  proportion  to  the  resources  of  the 
place.  They  shall  only  be  demanded  in  the  name  of  the  commander 
of  the  said  naval  force,  and  they  shall,  as  far  as  possible,  be  paid  for 
in  cash;  if  not,  they  shall  be  evidenced  by  receipts. 

Art.  4,  Undefended  ports,  towns,  villages,  dwellings,  or  buildings 
may  not  be  bombarded  on  account  of  failure  to  pay  money  contribu- 
tions. 

Chapter  II. — General  Provisions 

Art.  5.  In  bombardments  by  naval  forces  all  the  necessary  measures 
must  be  taken  by  the  commander  to  spare  as  far  as  possible  sacred 
edifices,  buildings  used  for  artistic,  scientific,  or  charitable  purposes, 
historic  monuments,  hospitals,  and  places  where  the  sick  or  wounded 
are  collected,  on  the  understanding  that  they  are  not  used  at  the  same 
time  for  military  purposes. 

It  is  the  duty  of  the  inhabitants  to  indicate  such  monuments,  edifices, 
or  places  by  visible  signs,  which  shall  consist  of  large,  stiff  rectangular 
panels  divided  diagonally  into  two  colored  triangular  portions,  the 
upper  portion  black,  the  lower  portion  white. 

Art.  6.  If  the  military  situation  permits,  the  commander  of  the  at- 
tacking naval  force,  before  commencing  the  bombardment,  must  do 
his  utmost  to  warn  the  authorities. 

Art.  7.  A  town  or  place,  even  when  taken  by  storm,  may  not  be 
pillaged. 


HAGUE   CONVENTIONS  OF  1907  1153 

Chapter  III. — Final  Provisions 

Art.  8.  The  provisions  of  the  present  Convention  do  not  apply  ex- 
cept between  contracting  Powers,  and  then  only  if  all  the  belligerents 
are  parties  to  the  Convention.     *     *     * 


CONVENTION   FOR  THE  ADAPTATION   TO   MARITIME 

WARFARE  OP  THE  PRINCIPLES  OF  THE 

GENEVA  CONVENTION 

Signed  at  The  Hague,  October  18,  1907 


Article  1.  Military  hospital  ships,  that  is  to  say,  ships  constructed  or 
assigned  by  States  specially  and  solely  with  a  view  to  assisting  the 
wounded,  sick,  and  shipwrecked,  the  names  of  which  have  been  com- 
municated to  the  belligerent  Powers  at  the  commencement  or  during 
the,  course  of  hostilities,  and  in  any  case  before  they  are  employed, 
shall  be  respected,  and  can  not  be  captured  while  hostilities  last. 

These  ships,  moreover,  are  not  on  the  same  footing  as  war  ships 
as  regards  their  stay  in  a  neutral  port. 

Art.  2.  Hospital  ships,  equipped  wholly  or  in  part  at  the  expense 
of  private  individuals  or  officially  recognized  relief  societies,  shall  be 
likewise  respected  and  exempt  from  capture,  if  the  belligerent  Power 
to  whom  they  belong  has  given  them  an  official  commission  and  has 
notified  their  names  to  the  hostile  Power  at  the  commencement  of  or 
during  hostilities,  and  in  any  case  before  they  are  employed. 

These  ships  must  be  provided  with  a  certificate  from  the  compe- 
tent authorities  declaring  that  the  vessels  have  been  under  their  con- 
trol while  fitting  out  and  on  final  departure. 

Art.  3.  Hospital  ships,  equipped  wholly  or  in  part  at  the  expense  of 
private  individuals  or  officially  recognized  societies  of  neutral  coim- 
tries  shall  be  respected  and  exempt  from  capture,  on  condition  that 
they  are  placed  under  the  control  of  one  of  the  belligerents,  with  the 
previous  consent  of  their  own  Government  and  with  the  authorization 
of  the  belligerent  himself,  and  that  the  latter  has  notified  their  names 
to  his  adversary  at  the  commencement  of  or  during  hostilities,  and 
in  any  case,  before  they  are  employed. 

Art.  4.  The  ships  mentioned  in  articles  1,  2,  and  3  shall  afford  relief 
and  assistance  to  the  wounded,  sick,  and  shipwrecked  of  the  beUigerents 
without  distinction  of  nationality. 

The  Governments  undertake  not  to  use  these  ships  for  any  military 
purpose. 

These  vessels  must  in  no  wise  hamper  the  movements  of  the  com- 
batants. 

Scott  Int.I/AW— 73 


1154  APPENDIX  n 

During  and  after  an  engagement  they  will  act  at  their  own  risk  and 
peril. 

The  belligerents  shall  have  the  right  to  control  and  search  them; 
they  can  refuse  to  help  them,  order  them  off,  make  them  take  a  cer- 
tain course,  and  put  a  commissioner  on  board;  they  can  even  detain 
them,  if  important  circumstances  require  it. 

As  far  as  possible,  the  belligerents  shall  enter  in  the  log  of  the  hos- 
pital ships  the  orders  which  they  give  them. 

Art.  5.  Military  hospital  ships  shall  be  distinguished  by  being  painted 
white  outside  with  a  horizontal  band  of  green  about  a  meter  and  a 
half  in  breadth. 

The  ships  mentioned  in  articles  2  and  3  shall  be  distinguished  by 
being  painted  white  outside  with  a  horizontal  band  of  red  about  a 
meter  and  a  half  in  breadth. 

The  boats  of  the  ships  above  mentioned,  as  also  small  craft  which 
may  be  used  for  hospital  work,  shall  be  distinguished  by  similar  paint- 
ing. 

All  hospital  ships  shall  make  themselves  known  by  hoisting,  with 
their  national  flag,  the  white  flag  with  a  red  cross  provided  by 'the 
Geneva  Convention,  and  further,  if  they  belong  to  a  neutral  State,  by 
flying  at  the  mainmast  the  national  flag  of  the  belligerent  under  whose 
control  they  are  placed. 

Hospital  ships  which,  in  the  terms  of  article  4,  are  detained  by  the 
enemy  must  haul  down  the  national  flag  of  the  belligerent  to  whom  they 
belong. 

The  ships  and  boats  above  mentioned  which  wish  to  ensure  by  night 
the  freedom  from  interference  to  which  they  are  entitled,  must,  sub- 
ject to  the  assent  of  the  belligerent  they  are  accompanying,  take  the 
necessary  measures  to  render  their  special  painting  sufficiently  plain. 

Art.  6.  The  distinguishing  signs  referred  to  in  article  5  can  only  be 
used,  whether  in  time  of  peace  or  war,  for  protecting  or  indicating  the 
ships  therein  mentioned. 

Art.  7.  In  the  case  of  a  fight  on  board  a  war  ship,  the  sick  wards 
shall  be  respected  and  spared  as  far  as  possible. 

The  said  sick  wards  and  the  materiel  belonging  to  them  remain  sub- 
ject to  the  laws  of  war ;  they  can  not,  however,  be  used  for  any  pur- 
pose other  than  that  for  which  they  were  originally  intended,  so  long 
as  they  are  required  for  the  sick  and  wounded. 

The  commander,  however,  into  whose  power  they  have  fallen  may 
apply  them  to  other  purposes,  if  the  military  situation  requires  it,  after 
seeing  that  the  sick  and  wounded  on  board  are  properly  provided  for. 

Art.  8.  Hospital  ships  and  sick  wards  of  vessels  are  no  longer  enti- 
tled to  protection  if  they  are  employed  for  the  purpose  of  injuring  the 
enemy. 

The  fact  of  the  staflf  of  the  said  ships  and  sick  wards  being  armed 
for  maintaining  order  and  for  defending  the  sick  and  wounded,  and 

Scott  Int.Law 


HAGUE   CONVENTIONS   OF  1907  1155 

the  presence  of  wireless  telegraphy  apparatus  on  board,  is  not  a  suffi- 
cient reason  for  withdrawing  protection. 

Art.  9.  Belligerents  may  appeal  to  the  charity  of  the  commanders 
of  neutral  merchant  ships,  yachts,  or  boats  to  take  on  board  and  tend 
the  sick  and  wounded. 

Vessels  responding  to  this  appeal,  and  also  vessels  which  have  of 
their  own  accord  rescued  sick,  wounded,  or  shipwrecked  men,  shall 
enjoy  special  protection  and  certain  immunities.  In  no  case  can  they 
be  captured  for  having  such  persons  on  board,  but,  apart  from  spe- 
cial undertakings  that  have  been  made  to  them,  they  remain  liable  to 
capture  for  any  violations  of  neutrality  they  may  have  committed. 

Art.  10.  The  religious,  medical,  and  hospital  staff  of  any  captured 
ship  is  inviolable,  and  its  members  can  not  be  made  prisoners  of  war. 
On  leaving  the  ship  they  take  a^ay  with  them  the  objects  and  surgical 
instruments  which  are  their  own  private  property. 

This  staff  shall  continue  to  discharge  its  duties  while  necessary,  and 
can  afterwards  leave,  when  the  commander-in-chief  considers  it  pos- 
sible. 

The  belligerents  must  guarantee  to  the  said  staff,  when  it  has  fallen 
into  their  hands,  the  same  allowances  and  pay  which  are  given  to 
the  staff  of  corresponding  rank  in  their  own  navy. 

Art.  11.  Sailors  and  soldiers  on  board,  when  sick  or  wounded,  as  well 
as  other  persons  officially  attached  to  fleets  or  armies,  whatever  their 
nationality,  shall  be  respected  and  tended  by  the  captors. 

Art.  12,  Any  war  ship  belonging  to  a  belligerent  may  demand  that 
sick,  wounded,  or  shipwrecked  men  on  board  military  hospital  ships, 
hospital  ships  belonging  to  relief  societies  or  to  private  individuals, 
merchant  ships,  yachts,  or  boats,  whatever  the  nationality  of  these 
vessels,  should  be  handed  over. 

Art.  13,  If  sick,  wounded,  or  shipwrecked  persons  are  taken  on  board 
a  neutral  war  ship,  every  possible  precaution  must  be  taken  that  they 
do  not  again  take  part  in  the  operations  of  the  war. 

Art.  14.  The  shipwrecked,  wounded,  or  sick  of  one  of  the  belliger- 
ents who  fall  into  the  power  of  the  other  belligerent  are  prisoners  of 
war.  The  captor  must  decide,  according  to  circumstances,  whether  to 
keep  them,  send  them  to  a  port  of  his  own  country,  to  a  neutral  port, 
or  even  to  an  enemy  port.  In  this  last  case,  prisoners  thus  repatriated 
cannot  serve  again  while  the  war  lasts. 

Art.  15,  The  shipwrecked,  sick,  or  wounded,  who  are  landed  at  a 
neutral  port  with  the  consent  of  the  local  authorities,  must,  unless  an 
arrangement  is  made  to  the  contrary  between  the  neutral  State  and 
the  belligerent  States,  be  guarded  by  the  neutral  State  so  as  to  prevent 
them  again  taking  part  in  the  operations  of  the  war. 

The  expenses  of  tending  them  in  hospital  and  interning  them  shall 
be  borne  by  the  State  to  which  the  shipwrecked,  sick,  or  wounded  per- 
sons belong. 


1156  APPENDIX   II 

Art.  16.  After  every  engagement,  the  two  belligerents,  so  far  as 
military  interests  permit,  shall  take  steps  to  look  for  the  shipwrecked, 
sick,  and  wounded,  and  to  protect  them,  as  well  as  the  dead,  against 
pillage  and  ill-treatment. 

They  shall  see  that  the  burial,  whether  by  land  or  sea,  or  cremation 
of  the  dead  shall  be  preceded  by  a  careful  examination  of  the  corpse. 

Art.  17.  Each  belligerent  shall  send,  as  early  as  possible,  to  the  au- 
thorities of  their  country,  navy,  or  army  the  military  marks  or  docu- 
ments of  identity  found  on  the  dead  and  the  description  of  the  sick  and 
wounded  picked  up  by  him. 

The  belligerents  shall  keep  each  other  informed  as  to  internments 
and  transfers  as  well  as  to  the  admissions  into  hospitals  and  deaths 
which  have  occurred  among  the  sick  and  wounded  in  their  hands. 
They  shall  collect  all  the  objects  of  personal  use,  valuables,  letters,  etc., 
which  are  found  in  the  captured  ships,  or  which  have  been  left  by  the 
sick  or  wounded  who  died  in  hospital,  in  order  to  have  them  for- 
warded to  the  persons  concerned  by  the  authorities  of  their  own 
country. 

Art.  18.  The  provisions  of  the  present  Convention  do  not  apply  ex- 
cept between  contracting  Powers,  and  then  only  if  all  the  belligerents 
are  parties  to  the  Convention. 

Art.  19.  The  commanders-in-chief  of  the  belligerent  fleets  must  see 
that  the  above  articles  are  properly  carried  out ;  they  will  have  also  to 
see  to  cases  not  covered  thereby,  in  accordance  with  the  instructions 
of  their  respective  Governments  and  in  conformity  with  the  general 
principles  of  the  present  Convention. 

Art.  20.  The  signatory  Powers  shall  take  the  necessary  measures  for 
bringing  the  provisions  of  the  present  Convention  to  the  knowledge  of 
their  naval  forces,  and  especially  of  the  members  entitled  thereunder 
to  immunity,  and  for  making  them  known  to  the  public. 

Art.  21.  The  signatory  Powers  likewise  undertake  to  enact  or  to 
propose  to  their  legislatures,  if  their  criminal  laws  are  inadequate,  the 
measures  necessary  for  checking  in  time  of  war  individual  acts  of 
pillage  and  ill-treatment  in  respect  to  the  sick  and  wounded  in  the 
fleet,  as  well  as  for  punishing,  as  an  unjustifiable  adoption  of  naval 
or  military  marks,  the  unauthorized  use  of  the  distinctive  marks  men- 
tioned in  article  5  by  vessels  not  protected  by  the  present  Convention. 

They  will  communicate  to  each  other,  through  the  Netherland  Gov- 
ernment, the  enactments  for  preventing  such  acts  at  the  latest  within 
five  years  of  the  ratification  of  the  present  Convention. 

Art.  22.  In  the  case  of  operations  of  war  between  the  land  and  sea 
forces  of  belligerents,  the  provisions  of  the  present  Convention  do 
not  apply  except  between  the  forces  actually  on  board  ship.     *     *     * 


HAGUE   CONVENTIONS  OP  1907  1157 


CONVENTION  RELATIVE  TO  CERTAIN  RESTRICTIONS 

WITH  REGARD  TO  THE  EXERCISE  OF  THE 

RIGHT  OF  CAPTURE  IN  NAVAL  WAR 

Signed  at  The  Hague,  October  18,  1907 


Chapter  I. — Postal  Corrt^spondencB 

Article  1.  The  postal  correspondence  of  neutrals  or  belligerents, 
whatever  its  official  or  private  character  may  be,  found  on  the  hig'h 
seas  on  board  a  neutral  or  enemy  ship,  is  inviolable.  If  the  ship  is 
detained,  the  correspondence  is  forwarded  by  the  captor  with  the  least 
possible  delay. 

The  provisions  of  the  preceding  paragraph  do  not  apply,  in  case  of 
violation  of  blockade,  to  correspondence  destined  for  or  proceeding 
from  a  blockaded  port. 

Art.  2.  The  inviolability  of  postal  correspondence  does  not  exempt 
a  neutral  mail  ship  from  the  laws  and  customs  of  maritime  war  as 
to  neutral  merchant  ships  in  general.  The  ship,  however,  may  not  be 
searched  except  when  absolutely  necessary,  and  then  only  with  as 
much  consideration  and  expedition  as  possible. 

Chapter  II. — The  Exemption  from  Capture  oe  Certain  Vessels 

Art.  3.  Vessels  used  exclusively  for  fishing  along  the  coast  or  small 
boats  employed  in  local  trade  are  exempt  from  capture,  as  well  as  their 
appliances,  rigging,  tackle,  and  cargo. 

They  cease  to  be  exempt  as  soon  as  they  take  any  part  whatever  in 
hostilities. 

The  contracting  Powers  agree  not  to  take  advantage  of  the  harm- 
less character  of  the  said  vessels  in  order  to  use  them  for  military 
purposes  while  preserving  their  peaceful  appearance. 

Art.  4.  Vessels  charged  with  religious,  scientific,  or  philanthropic 
missions  are  likewise  exempt  from  capture. 

Chapter  TIL — Regulations   Regarding  the   CrEws  oE  Enemy 
Merchant  Ships  Captured  by  a  Belligerent 

Art.  5,  When  an  enemy  merchant  ship  is  captured  by  a  belligerent, 
such  of  its  crew  as  are  nationals  of  a  neutral  State  are  not  made  pris- 
oners of  war. 

The  same  rule  applies  in  the  case  of  the  captain  and  officers  likewise 
nationals  of  a  neutral  State,  if  they  promise  formally  in  writing  not  to 
serve  on  an  enemy  ship  while  the  war  lasts. 

The  captain,  officers,  and  members  of  the  crew,  when  nationals  of 
the  enemy  State,  are  not  made  prisoners  of  war,  on  condition  that  they 


1158  APPENDIX  n 

make  a  formal  promise  in  writing,  not  to  undertake,  while  hostilities 
last,  any  service  connected  with  the  operations  of  the  war. 

Art.  7.  The  names  of  the  persons  retaining  their  liberty  under  the 
conditions  laid  down  in  article  5,  paragraph  2,  and  in  article  6,  are 
notified  by  the  belligerent  captor  to  the  other  belligerent.  The  latter 
is  forbidden  knowingly  to  employ  the  said  persons. 

Art.  8.  The  provisions  of  the  three  preceding  articles  do  not  apply  to 
ships  taking  part  in  the  hostilities. 

Chapter  IV. — Final  Provisions 

Art  9.  The  provisions  of  the  present  Convention  do  not  apply  ex- 
cept between  contracting  Powers,  and  then  only  if  all  the  belligerents 
are  parties  to  the  Convention.     *     *     * 


CONVENTION  CONCERNING  THE  RIGHTS  AND  DUTIES 
OF  NEUTRAL  POWERS  IN  NAVAL  WAR 

Signed  at  The  Hague,  October  18,  1907 


Article  1.  Belligerents  are  bound  to  respect  the  sovereign  rights  of 
neutral  Powers  and  to  abstain,  in  neutral  territory  or  neutral  waters, 
from  any  act  which  would,  if  knowingly  permitted  by  any  Power,  con- 
stitute a  violation  of  neutrality. 

Art.  2.  Any  act  of  hostility,  including  capture  and  the  exercise  of 
the  right  of  search,  committed  by  belligerent  warships  in  the  territorial 
waters  of  a  neutral  Power,  constitutes  a  violation  of  neutrality  and  is 
strictly  forbidden. 

Art.  3.  When  a  ship  has  been  captured  in  the  territorial  waters  of  a 
neutral  Power,  this  Power  must  employ,  if  the  prize  is  still  within  its 
jurisdiction,  the  means  at  its  disposal  to  release  the  prize  with  its 
officers  and  crew,  and  to  intern  the  prize  crew. 

If  the  prize  is  not  in  the  jurisdiction  of  the  neutral  Power,  the 
captor  Government,  on  the  demand  of  that  Power,  must  liberate  the 
prize  with  its  officers  and  crew. 

Art.  4.  A  prize  court  can  not  be  set  up  by  a  belligerent  on  neutral 
territory  or  on  a  vessel  in  neutral  waters. 

Art.  5.  Belligerents  are  forbidden  to  use  neutral  ports  and  waters  as 
a  base  of  naval  operations  against  their  adversaries,  and  in  particular 
to  erect  wireless  telegraphy  stations  or  any  apparatus  for  the  purpose 
of  .communicating  with  the  belligerent  forces  on  land  or  sea. 

Art.  6.  The  supply,  in  any  manner,  directly  or  indirectly,  by  a  neu- 
tral Power  to  a  belligerent  Power,  of  war  ships,  ammunition,  or  war 
material  of  any  kind  whatever,  is  forbidden. 


HAGUE   CONVENTIONS   OF  1907  1159 

Art.  7.  A  neutral  Power  is  not  bound  to  prevent  the  export  or  transit, 
for  the  use  of  either  belHgerent,  of  arms,  ammunition,  or,  in  general, 
of  anything  which  could  be  of  use  to  an  army  or  fleet. 

Art.  8.  A  neutral  Government  is  bound  to  employ  the  means  at  its 
disposal  to  prevent  the  fitting  out  or  arming  of  any  vessel  within  its 
jurisdiction  which  it  has  reason  to  believe  is  intended  to  cruise,  or 
engage  in  hostile  operations,  against  a  Power  with  which  that  Gov- 
ernment is  at  peace.  It  is  also  bound  to  display  the  same  vigilance  to 
prevent  the  departure  from  its  jurisdiction  of  any  vessel  intended  to 
cruise,  or  engage  in  hostile  operations,  which  had  been  adapted  en- 
tirely or  partly  within  the  said  jurisdiction  for  use  in  war. 

Art.  9.  A  neutral  Power  must  apply  impartially  to  the  two  bellig- 
erents the  conditions,  restrictions,  or  prohibitions  made  by  it  in  regard 
to  the  admission  into  its  ports,  roadsteads,  or  territorial  waters,  of  bel- 
ligerent warships  or  of  their  prizes. 

Nevertheless,  a  neutral  Power  may  forbid  a  belligerent  vessel  which 
has  failed  to  conform  to  the  orders  and  regulations  made  by  it,  or 
which  has  violated  neutrality,  to  enter  its  ports  or  roadsteads. 

Art.  10.  The  neutrality  of  a  Power  is  not  affected  by  the  mere  pas- 
sage through  its  territorial  waters  of  war  ships  or  prizes  belonging  to 
belligerents. 

Art.  11.  A  neutral  Power  may  allow  belligerent  war  ships  to  employ 
its  licensed  pilots. 

Art.  12.  In  the  absence  of  special  provisions  to  the  contrary  in  the 
legislation  of  a  neutral  Power,  belligerent  war  ships  are  not  permitted 
to  remain  in  the  ports,  roadsteads,  or  territorial  waters  of  the  said 
Power  for  more  than  twenty- four  hours,  except  in  the  cases  covered  by 
the  present  Convention. 

Art.  13.  If  a  Power  which  has  been  informed  of  the  outbreak  of  hos- 
tilities learns  that  a  belligerent  warship  is  in  one  of  its  ports  or  r6ad- 
steads,  or  in  its  territorial  waters,  it  must  notify  the  said  ship  to  de- 
part within  twenty-four  hours  or  within  the  time  prescribed  by  local 
regulations. 

Art.  14.  A  belligerent  war  ship  may  not  prolong  its  stay  in  a  neutral 
port  beyond  the  permissible  time  except  on  account  of  damage  or 
stress  of  weather.  It  must  depart  as  soon  as  the  cause  of  the  delay  is 
at  an  end. 

The  regulations  as  to  the  question  of  the  length  of  time  which  these 
vessels  may  remain  in  neutral  ports,  roadsteads,  or  waters,  do  not 
apply  -to  war  ships,  devoted  exclusively  to  religious,  scientific,  or  phil- 
anthropic purposes. 

Art.  15.  In  the  absence  of  special  provisions  to  the  contrary  in  the 
legislation  of  a  neutral  Power,  the  maximum  number  of  war  ships  be- 
longing to  a  belligerent  which  may  be  in  one  of  the  ports  or  roadsteads 
of  that  Power  simultaneously  shall  be  three. 


1160  APPENDIX  n 

Art.  16.  When  war  ships  belonging  to  both  belligerents  are  present 
simultaneously  in  a  neutral  port  or  roadstead,  a  period  of  not  less  than 
twenty-four  hours  must  elapse  between  the  departure  of  the  ship  be- 
longing to  one  belligerent  and  the  departure  of  the  ship  belonging  to 
the  other. 

The  order  of  departure  is  determined  by  the  order  of  arrival,  un- 
less the  ship  which  arrived  first  is  so  drcumstanced  that  an  extension 
of  its  stay  is  permissible. 

A  belligerent  war  ship  may  not  leave  a  neutral  port  or  roadstead 
until  twenty- four  hours  after  the  departure  of  a  merchant  ship  flying 
th^  flag  of  its  adversary. 

Art.  17.  In  neutral  ports  and  roadsteads  belligerent  war  ships  may 
only  carry  out  such  repairs  as  are  absolutely  necessary  to  render  them 
seaworthy,  and  may  not  add  in  any  manner  whatsoever  to  their  fight- 
ing force.  The  local  authorities  of  the  neutral  Power  shall  decide 
what  repairs  are  necessary,  and  these  must  be  carried  out  with  the 
least  possible  delay. 

Art.  18.  Belligerent  war  ships  may  not  make  use  of  neutral  ports, 
roadsteads,  or  territorial  waters  for  replenishing  or  increasing  their 
supplies  of  war  material  or  their  armament,  or  for  completing  their 
crews. 

Art.  19.  Belligerent  war  ships  may  only  revictual  in  neutral  ports  or 
roadsteads  to  bring  up  their  supplies  to  the  peace  standard. 

Similarly  these  vessels  may  only  ship  sufficient  fuel  to  enable  them 
to  reach  the  nearest  port  in  their  own  country.  They  may,  on  the 
other  hand,  fill  up  their  bunkers  built  to  carry  fuel,  when  in  neutral 
countries  which  have  adopted  this  method  of  determining  the  amount 
of  fuel  to  be  supplied. 

If,  in  accordance  with  the  law  of  the  neutral  Power,  the  ships  are 
not  supplied  with  coal  within  twenty-four  hours  of  their  arrival,  the 
permissible  duration  of  their  stay  is  extended  by  twenty-four  hours. 

Art.  20.  Belligerent  war  ships  which  have  shipped  fuel  in  a  port  be- 
longing to  a  neutral  Power  may  not  within  the  succeeding  three  months 
replenish  their  supply  in  a  port  of  the  same  Power. 

Art.  21.  A  prize  may  only  be  brought  into  a  neutral  port  on  account 
of  unseaworthiness,  stress  of  weather,  or  want  of  fuel  or  provisions. 

It  must  leave  as  soon  as  the  circumstances  which  justified  its  entry 
are  at  an  end.  If  it  does  not,  the  neutral  Power  must  order  it  to 
leave  at  once;  should  it  fail  to  obey,  the  neutral  Power  must  employ 
the  means  at  its  disposal  to  release  it  with  its  officers  and  crew  and 
to  intern  the  prize  crew. 

Art.  22.  A  neutral  Power,  must,  similarly,  release  a  prize  brought 
into  one  of  its  ports  under  circumstances  other  than  those  referred  to 
in  article  21. 

Art.  23.  A  neutral  Power  may  allow  prizes  to  enter  its  ports  and 
roadsteads,  whether  under  convoy  or  not,  when  they  are  brought  there 


HAGUE    CONVENTIONS  OF  1907  1161 

to  be  sequestrated  pending  the  decision  of  a  Prize  Court.    It  may  have 
the  prize  taken  to  another  of  its  ports. 

If  the  prize  is  convoyed  by  a  w^ar  ship,  the  prize  crew  may  go  on 
board  the  convoying  ship. 

If  the  prize  is  not  under  convoy,  the  prize  crew  are  left  at  hberty. 

Art.  24.  If,  notwithstanding  the  notification  of  the  neutral  Power,  a 
belligerent  ship  of  war  does  not  leave  a  port  where  it  is  not  entitled  to 
remain,  the  neutral  Power  is  entitled  to  take  such  measures  as  it  con- 
siders necessary  to  render  the  ship  incapable  of  taking  the  sea  during 
the  war,  and  the  commanding  officer  of  the  ship  must  facilitate  the 
execution  of  such  measures. 

When  a  belligerent  ship  is  detained  by  a  neutral  Power,  the  officers 
and  crew  are  likewise  detained. 

.  The  officers  and  crew  thus  detained  may  be  left  in  the  ship  or  kept 
either  on  another  vessel  or  on  land,  and  may  be  subjected  to  the  meas- 
ures of  restriction  which  it  may  appear  necessary  to  impose  upon  them. 
A  sufficient  number  of  men  for  looking  after  the  vessel  must,  however, 
be  always  left  on  board. 

The  officers  may  be  left  at  liberty  on  giving  their  word  not  to  quit 
the  neutral  territory  without  permission. 

Art.  25.  A  neutral  Power  is  bound  to  exercise  such  surveillance  as 
the  means  at  its  disposal  allow  to  prevent  any  violation  of  the  provi- 
sions of  the  above  articles  occurring  in  its  ports  or  roadsteads  or  in  its 
waters. 

Art.  26.  The  exercise  by  a  neutral  Power  of  the  rights  laid  down  in 
the  present  Convention  can  under  no  circumstances  be  considered  as 
an  unfriendly  act  by  one  or  other  belligerent  who  has  accepted  the  ar- 
ticles relating  thereto. 

Art.  27.  The  contracting  Powers  shall  communicate  to  each  other  in 
due  course  all  laws,  proclamations,  and  other  enactments  regulating  in 
their  respective  countries  the  status  of  belligerent  war  ships  in  their 
ports  and  waters,  by  means  of  a  communication  addressed  to  the  Gov- 
ernment of  the  Netherlands,  and  forwarded  immediately  by  that  Gov- 
ernment to  the  other  contracting  Powers. 

Art.  28.  The  provisions  of  the  present  Convention  do  not  apply  ex- 
cept between  contracting  Powers,  and  then  only  if  all  the  belligerents 
are  parties  to  the  Convention.     *     *     * 


1162  APPENDIX  n 

DECLARATION  PROHIBITING  THE  DISCHARGE  OP  PRO- 
JECTILES  AND  EXPLOSIVES  FROM  BALLOONS 

Signed  at  the  Hague,  October  18,  1907 


The  contracting  Powers  agree  to  prohibit,  for  a  period  extending  to 
the  close  of  the  Third  Peace  Conference,  the  discharge  of  projectiles 
and  explosives  from  balloons  or  by  other  new  methods  of  a  similar 
nature. 

The  present  Declaration  is  only  binding  on  the  contracting  Powers 
in  case  of  war  between  two  or  more  of  them. 

It  shall  cease  to  be  binding  from  the  time  when,  in  a  war  between 
the  contracting  Powers,  one  of  the  belligerents  is  joined  by  a  noncon- 
tracting  Power.     *     *     * 

In  the  event  of  one  of  the  high  contracting  Parties  denouncing  the 
present  Declaration,  such  denunciation  shall  not  take  effect  until  a 
year  after  the  notification  made  in  writing  to  the  Netherland  Govern- 
ment, and  forthwith  communicated  by  it  to  all  the  other  contracting 
Powers. 

•  This  denunciation  shall  only  have  effect  in  regard  to  the  notifying 
Power.     *     *     * 


DECLARATION  OF  LONDON  ^ 


Chapter  I. — Blockade;  in  Time  of  War 

Article  1.  A  blockade  must  not  extend  beyond  the  ports  and  coasts 
belonging  to  or  occupied  by  the  enemy. 

Art.  2.  In  accordance  with  the  Declaration  of  Paris  of  1856,  a 
blockade,  in  order  to  be  binding,  must  be  effective;    that  is  to  say, 

1  The  Declaration  of  London  of  February  26,  1900,  signed  by  Austria-Hun- 
gary, France,  Germany,  Great  Britain,  Italy,  Japan,  the  Netherlands,  Russia, 
Spain  and  the  United  States,  was  not  ratified  by  any  of  the  Signatory  Powers. 
At  the  commencement  of  the  World  War  it  was  proposed  by  the  United  States, 
on  August  6,  1914,  that  its  provisions  should  be  observed  by  the  various  belli- 
gerents. They  complied,  with  certain  additions  and  modifications,  but  during 
the  war,  the  Allied  Powers  withdrew  their  assent.  The  British  Order  in 
Council  withdrawing  its  assent  to  the  Declaration  of  London  was  dated  July 
7,  1916.  See  Special  Supplement  to  the  American  Journal  of  International 
Law,  vol.  10,  1916,  p.  5.  The  French  decree  was  of  the  same  date.  Id.  p.  11. 
The  withdrawal  in  each  case  was  accompanied  by  a  memorandum  in  which 
the  Powers  stated  the  reasons  which  led  them  to  withdraw  their  assent  to 
the  Declaration  of  London  and  "to  restrict  themselves  solely  to  the  applica- 
tion of  the  rjales  of  international  law  as  formerly  recognized." 

Because  of  frequent  reference  in  adjudged  prize  cases  to  the  Declaration 
of  London,  it  has  been  deemed  advisable  to  include  it  in  the  Appendix  to  this 
volume. 


DECLARATION   OF  LONDON  1163 

it  must  be  maintained  by  a  force  sufficient  really  to  prevent  access  to 
the  enemy  coastline. 

Art.  3.  The  question  whether  a  blockade  is  effective  is  a  question 
of  fact. 

Art.  4.  A  blockade  is  not  regarded  as  raised  if  the  blockading  force 
is  temporarily  withdrawn  on  account  of  stress  of  weather. 

Art.  5.  A  blockade  must  be  applied  impartially  to  the  ships  of  all 
nations. 

Art.  6.  The  Commander  of  a  blockading  force  may  give  permission 
to  a  warship  to  enter,  and  subsequently  to  leave,  a  blockaded  port. 

Art.  7.  In  circumstances  of  distress,  acknowledged  by  an  officer  of 
the  blockading  force,  a  neutral  vessel  may  enter  a  place  under  block- 
ade and  subsequently  leave  it,  provided  that  she  has  neither  discharged 
nor  shipped  any  cargo  there. 

Art.  8.  A  blockade,  in  order  to  be  binding,  must  be  declared  in  ac- 
cordance with  article  9,  and  notified  in  accordance  with  articles  11 
and  16. 

Art.  9.  A  declaration  of  blockade  is  made  either  by  the  blockading 
Power  or  by  the  naval  authorities  acting  in  its  name. 

It  specifies — 

(1)  The  date  when  the  blockade  begins; 

(2)  The  geographical  limits  of  the  coast  line  under  blockade ; 

(3)  The  period  within  which  neutral  vessels  may  come  out. 

Art.  10.  If  the  operations  of  the  blockading  Power,  or  of  the  naval 
authorities  acting  in  its  name,  do  not  tally  with  the  particulars,  which, 
in  accordance  with  article  9  (1)  and  (2),  must  be  inserted  in  the  dec- 
laration of  blockade,  the  declaration  is  void,  and  a  new  declaration  is 
necessary  in  order  to  make  the  blockade  operative. 

Art.  11.  A  declaration  of  blockade  is  notified — 

(1)  To  neutral  Powers,  by  the  blockading  Power  by  means  of  a 
communication  addressed  to  the  Governments  direct,  or  to  their  rep- 
resentatives accredited  to  it; 

(2)  To  the  local  authorities,  by  the  officer  commanding  the  blockad- 
ing force.  The  local  authorities  will,  in  turn,  inform  the  foreign  con- 
sular officers  at  the  port  or  on  the  coastline  under  blockade  as  soon 
as  possible. 

Art.  12.  The  rules  as  to  declaration  and  notification  of  blockade  ap- 
ply to  cases  where  the  limits  of  a  blockade  are  extended,  or  where  a 
blockade  is  re-established  after  having  been  raised. 

Art.  13.  The  voluntary  raising  of  a  blockade,  as  also  any  restric- 
tion in  the  limits  of  a  blockade,  must  be  notified  in  the  manner  pre- 
scribed by  article  11, 

Art.  14.  The  liability  of  a  neutral  vessel  to  capture  for  breach  of 
blockade  is  contingent  on  her  knowledge,  actual  or  presumptive,  of  the 
blockade. 

Art.  15.  Failing  proof  to  the  contrary,  knowledge  of  the  blockade  is 
presumed  if  the  vessel  left  a  neutral  port  subsequently  to  the  notifi- 


1164  APPENDIX   II 

cation  of  the  blockade  to  the  Power  to  which  such  port  belongs,  pro- 
vided that  such  notification  was  made  in  sufificient  time. 

Art.  16.  If  a  vessel  approaching  a  blockaded  port  has  no  knowl- 
edge, actual  or  presumptive,  of  the  blockade,  the  notification  must  be 
made  to  the  vessel  itself  by  an  officer  of  one  of  the  ships  of  the  block- 
ading force.  This  notification  should  be  entered  in  the  vessel's  log- 
book, and  must  state  the  day  and  hour,  and  the  geographical  position 
of  the  vessel  at  the  time. 

If,  through  the  negligence  of  the  officer  commanding  the  blockad- 
ing force,  no  declaration  of  blockade  has  been  notified  to  the  local 
authorities,  or,  if  in  the  declaration,  as  notified,  no  period  has  been 
mentioned  within  which  neutral  vessels  may  come  out,  a  neutral  ves- 
sel coming  out  of  the  blockaded  port  must  be  allowed  to  pass  free. 

Art.  17.  Neutral  vessels  may  not  be  captured  for  breach  of  blockade 
except  within  the  area  of  operations  of  the  warships  detailed  to  render 
the  blockade  effective. 

Art.  18.  The  blockading  forces  must  not  bar  access  to  neutral  ports 
or  coasts. 

Art.  19.  Whatever  may  be  the  ulterior  destination  of  a  vessel  or  of 
her  cargo,  she  cannot  be  captured  for  breach  of  blockade,  if,  at  the 
moment,  she  is  on  her  way  to  a  non-blockaded  port. 

Art.  20.  A  vessel  which  has  broken  blockade  outwards,  or  which 
has  attempted  to  break  blockade  inwards,  is  liable  to  capture  so  long 
as  she  is  pursued  by  a  ship  of  t^lie  blockading  force.  If  the  pursuit 
is  abandoned,  or  if  the  blockade  is  raised,  her  capture  can  no  longer 
be  effected. 

Art.  21.  A  vessel  found  guilty  of  breach  of  blockade  is  liable  to 
condemnation.  The  cargo  is  also  condemned,  unless  it  is  proved  that 
at  the  time  of  the, shipment  of  the  goods  the  shipper  neither  knew 
nor  could  have  known  of  the  intention  to  break  the  blockade. 

Chapter  II. — Contraband  of  War 

Art.  22.  The  following  articles  may,  without  notice,  be  treated  as  con- 
traband of  war,  under  the  name  of  absolute  contraband: 

(1)  Arms  of  all  kinds,  including  arms  for  sporting  purposes,  and  their 
distinctive  component  parts. 

(2)  Projectiles,  charges,  and  cartridges  of  all  kinds,  and  their  dis- 
tinctive component  parts. 

(3)  Powder  and  explosives  specially  prepared  for  use  in  war. 

(4)  Gun-mountings,  limber  boxes,  limbers,  military  wagons,  field 
forges,  and  their  distinctive  component  parts. 

(5)  Clothing  and  equipment  of  a  distinctively  military  character. 

(6)  All  kinds  of  harness  of  a  distinctively  military  character. 

(7)  Saddle,  draught,  and  pack  animals  suitable  for  use  in  war. 

(8)  Articles  of  camp  equipment,  and  their  distinctive  component 
parts. 


DECLARATION   OF   LONDON"  1165 

(9)  Armour  plates. 

(10)  Warships,  including  boats,  and  their  distinctive  component  parts 
of  such  a  nature  that  they  can  only  be  used  on  a  vessel  of  war. 

(11)  Implements  and  apparatus  designed  exclusively  for  the  manu- 
facture of  munitions  of  war,  for  the  manufacture  or  repair  of  arms, 
or  war  material  for  use  on  land  or  sea. 

Art.  23.  Articles  exclusively  used  for  war  may  be  added  to  the  list 
of  absolute  contraband  by  a  declaration,  which  must  be  notified. 

Such  notification  must  be  addressed  to  the  Governments  of  other 
Powers,  or  to  their  representatives  accredited  to  the  Power  making 
the  declaration.  A  notification  made  after  the  outbreak  of  hostilities 
is  addressed  only  to  neutral  Powers. 

Art.  24.  The  following  articles,  susceptible  of  use  in  war  as  well  as 
for  purposes  of  peace,  may,  without  notice,  be  treated  as  contraband 
of  war,  under  the  name  of  conditional  contraband : 

(1)  Foodstuffs. 

(2)  Forage  and  grain,  suitable  for  feeding  animals. 

(3)  Clothing,  fabrics  for  clothing,  and  boots  and  shoes,  suitable  for 
use  in  war. 

(4)  Gold  and  silver  in  coin  or  bullion ;    paper  money. 

■   (5)  Vehicles  of  all  kinds  available  for  use  in  war,  and  their  com- 
ponent parts. 

(6)  Vessels,  craft,  and  boats  of  all  kinds ;  floating  docks,  parts  of 
docks  and  their  component  parts. 

(7)  Railway  material,  both  fixed  and  rolling-stock,  and  material  for 
telegraphs,  wireless  telegraphs,  and  telephones. 

(8)  Balloons  and  flying  machines  and  their  distinctive  component 
parts,  together  with  accessories  and  articles  recognizable  as  intended 
for  use  in  connection  with  balloons  and  flying  machines. 

(9)  Fuel;   lubricants. 

(10)  Powder  and  explosives  not  specially  prepared  for  use  in  war. 

(11)  Barbed  wire  and  implements  for  fixing  and  cutting  the  same. 

(12)  Horseshoes  and  shoeing  materials. 

(13)  Harness  and  saddlery. 

(14)  Field  Glasses,  telescopes,  chronometers,  and  aU  kinds  of  nauti- 
cal instruments. 

Art.  25.  Articles  susceptible  of  use  in  war  as  well  as  for  purposes 
of  peace,  other  than  those  enumerated  in  articles  22  and  24,  may  be 
added  to  the  list  of  conditional  contraband  by  a  declaration,  which 
must  be  notified  in  the  manner  provided  for  in  the  second  paragraph 
of  article  23. 

Art.  26.  If  a  Power  waives,  so  far  as  it  is  concerned,  the  right  to 
treat  as  contraband  of  war  an  article  comprised  in  any  of  the  classes 
enumerated  in  articles  22  and  24,  such  intention  shall  be  announced  by 
a  declaration,  which  must  be  notified  in  the  manner  provided  for  in 
the  second  paragraph  of  article  23. 


1166  APPENDIX  n 

Art.  27.  Articles  which  are  not  susceptible  of  use  in  war  may  not 
be  declared  contraband  of  war. 

Art.  28.  The  following  may  not  be  declared  contraband  of  war : 

(1)  Raw  cotton,  wool,  silk,  jute,  flax,  hemp,  and  other  raw  materi- 
als of  the  textile  industries,  and  yarns  of  the  same. 

(2)  Oil  seeds  and  nuts;    copra. 

(3)  Rubber,  resins,  gums,  and  lacs ;   hops. 

(4)  Raw  hides  and  horns,  bones  and  ivory. 

(5)  Natural  and  artificial  manures,  including  nitrates  and  phosphates 
for  agricultural  purposes. 

(6)  Metallic  ores. 

(7)  Earths,  clays,  lime,  chalk,  stone,  including  marble,  bricks,  slates, 
and  tiles. 

(8)  Chinaware  and  glass. 

(9)  Paper  and  paper-making  materials. 

(10)  Soap,  paint  and  colours,  including  articles  exclusively  used  in 
their  manufacture,  and  varnish. 

(11)  Bleaching  powder,  soda  ash,  caustic  soda,  salt  cake,  ammonia, 
sulphate  of  ammonia,  and  sulphate  of  copper. 

(12)  Agricultural,  mining,  textile,  and  printing  machinery. 

(13)  Precious  and  semi-precious  stones,  pearls,  mother-of-pearl,  and 
coral. 

(14)  Clocks  and  watches  other  than  chronometers. 

(15)  Fashion  and  fancy  goods. 

(16)  Feathers  of  all  kinds,  hairs,  and  bristles. 

(17)  Articles  of  household  furniture  and  decoration;  office  furni- 
ture and  requisites. 

Art.  29.  Likewise  the  following  may  not  be  treated  as  contraband  of 
war: 

(1)  Articles  serving  exclusively  to  aid  the  sick  and  wounded.  They 
can,  however,  in  case  of  urgent  military  necessity  and  subject  to  the 
payment  of  compensation  be  requisitioned  if  their  destination  is  that 
specified  in  article  30. 

(2)  Articles  intended  for  the  use  of  the  vessel  in  which  they  are 
found,  as  well  as  those  intended  for  the  use  of  her  crew  and  passen- 
gers during  the  voyage. 

Art.  30.  Absolute  contraband  is  liable  to  capture  if  it  is  shown  to 
be  destined  to  territory  belonging  to  or  occupied  by  the  enemy,  or  to 
the  armed  forces  of  the  enemy.  It  is  immaterial  whether  the  carriage 
of  the  goods  is  direct  or  entails  transhipment  or  a  subsequent  transport 
by  land. 

A.rt.  31.  Proof  of  the  destination  specified  in  article  30  is  complete 
in  the  following  cases : 

(1)  When  the  goods  are  documented  for  discharge  in  an  enemy  port, 
or  for  delivery  to  the  armed  forces  of  the  enemy. 

(2)  When  the  vessel  is  to  call  at  enemy  ports  only,  or  when  she  is 
to  touch  at  an  enemy  port  or  meet  the  armed  forces  of  the  enemy 


DECLARATION   OF   LOKDON  1167 

before  reaching  the  neutral  port  for  which  the  goods  in  question  are 
documented. 

Art.  32.  Where  a  vessel  is  carrying  absolute  contrabafid,  her  papers 
are  conclusive  proof  as  to  the  voyage  on  which  she  is  engaged,  unless 
she  is  found  clearly  out  of  the  course  indicated  by  her  papers  and  una- 
ble to  give  adequate  reasons  to  justify  such  deviation. 

Art.  33.  Conditional  contraband  is  liable  to  capture  if  it  is  shown  to 
be  destined  for  the  use  of  the  armed  forces  or  of  a  government  depart- 
ment of  the  enemy  State,  unless  in  this  latter  case  the  circumstances 
show  that  the  goods  cannot  in  fact  be  used  for  the  purposes  of  the 
war  in  progress.  This  latter  exception  does  not  apply  to  a  consign- 
ment coming  under  article  24(4). 

Art.  34.  The  destination  referred  to  in  article  33  is  presumed  to 
exist  if  the  goods  are  consigned  to  enemy  authorities,  or  to  a  contrac- 
tor established  in  the  enemy  country  who,  as  a  matter  of  common 
knowledge,  supplies  articles  of  this  kind  to  the  enemy.  A  similar  pre- 
sumption arises  if  the  goods  are  consigned  to  a  fortified  place  belong- 
ing to  the  enemy,  or  other  place  serving  as  a  base  for  the  armed  forces 
of  the  enemy.  No  such  presumption,  however,  arises  in  the  case  of 
a  merchant  vessel  bound  for  one  of  these  places  if  it  is  sought  to 
prove  that  she  herself  is  contraband. 

In  cases  where  the  above  presimiptions  do  not  arise,  the  destination 
is  presumed  to  be  innocent. 

The  presumptions  set  up  by  this  article  may  be  rebutted. 

Art.  35.  Conditional  contraband  is  not  liable  to  capture,  except  when 
found  on  board  a  vessel  bound  for  territory  belonging  to  or  occupied 
by  the  enemy,  or  for  the  armed  forces  of  the  enemy,  and  when  it  is 
not  to  be  discharged  in  an  intervening  neutral  port. 

The  ship's  papers  are  conclusive  proof  both  as  to  the  voyage  on 
which  the  vessel  is  engaged  and  as  to  the  port  of  discharge  of  the 
goods,  unless  she  is  found  clearly  out  of  the  course  indicated  by  her 
papers,  and  unable  to  give  adequate  reasons  to  justify  such  deviation. 

Art.  36.  Notwithstanding  the  provisions  of  article  35,  conditional  con- 
traband, if  shown  to  have  the  destination  referred  to  in  article  33,  is 
liable  to  capture  in  cases  where  the  enemy  country  has  no  seaboard. 

Art.  37.  A  vessel  carrying  goods  liable  to  capture  as  absolute  or 
conditional  contraband  may  be  captured  on  the  high  seas  or  in  the 
territorial  waters  of  the  belligerents  throughout  the  whole  of  her  voy- 
age, even  if  she  is  to  touch  at  a  port  of  call  before  reaching  the  hostile 
destination. 

Art.  38.  A  vessel  may  not  be  captured  on  the  ground  that  she  has 
carried  contraband  on  a  previous  occasion  if  such  carriage  is  in  point 
of  fact  at  an  end. 

Art.  39.  Contraband  goods  are  liable  to  condemnation. 

Art.  40.  A  vessel  carrying  contraband  may  be  condemned  if  the  con- 
traband, reckoned  either  by  value,  weight,  volume,  or  freight,  forms 
more  than  half  the  cargo. 


1168  APPENDIX  n 

Art.  41.  If  a  vessel  carrying  contraband  is  released,  she  may  be 
condemned  to  pay  the  costs  and  expenses  incurred  by  the  captor  in 
respect  of  the  proceedings  in  the  national  prize  court  and  the  custody 
of  the  ship  and  cargo  during  the  proceedings. 

Art.  42.  Goods  which  belong  to  the  owner  of  the  contraband  and 
are  on  board  the  same  vessel  are  liable  to  condemnation. 

Art.  43.  If  a  vessel  is  encountered  at  sea  while  unaware  of  the  out- 
break of  hostilities  or  of  the  declaration  of  contraband  which  applies 
to  her  cargo,  the  contraband  cannot  be  condemned  except  on  payment 
of  compensation;  the  vessel  herself  and  the  remainder  of  the  cargo 
are  not  liable  to  condemnation  or  to  the  costs  and  expenses  referred 
to  in  article  41.  The  same  rule  applies  if  the  master,  after  becoming 
aware  of  the  outbreak  of  hostilities,  or  of  the  declaration  of  contra- 
band, has  had  no  opportunity  of  discharging  the  contraband. 

A  vessel  is  deemed  to  be  aware  of  the  existence  of  a  state  of  war, 
or  of  a  declaration  of  contraband,  if  she  left  a  neutral  port  subse- 
q^uently  to  the  notification  to  the  Power  to  which  such  port  belongs 
of  the  outbreak  of  hostilities  or  of  the  declaration  of  contraband  re- 
spectively, provided  that  such  notification  was  made  in  sufficient  time. 
A  vessel  is  also  deemed  to  be  aware  of  the  existence  of  a  state  of  war 
if  she  left  an  enemy  port  after  tlie  outbreak  of  hostilities. 

Art.  44.  A  vessel  which  has  been  stopped  on  the  ground  that  she 
is  carrying  contraband,  and  which  is  not  liable  to  condemnation  on 
account  of  the  proportion  of  contraband  on  board,  may,  when  the  cir- 
cumstances permit,  be  allowed  to  continue  her  voyage  if  the  master  is 
willing  to  hand  over  the  contraband  to  the  belligerent  warship. 

The  delivery  of  the  contraband  must  be  entered  by  the  captor  on 
the  logbook  of  the  vessel  stopped,  and  the  master  must  give  the  cap- 
tor duly  certified  copies  of  all  relevant  papers. 

The  captor  is  at  liberty  to  destroy  the  contraband  that  has  been 
handed  over  to  him  under  these  conditions. 

Chapter  III. — ^Unneutral  Service 

Art.  45.  A  neutral  vessel  will  be  condemned  and  will,  in  a  general 
way,  receive  the  same  treatment  as  a  neutral  vessel  liable  to  condem- 
nation for  carriage  of  contraband  : 

(1)  If  she  is  on  a  voyage  specially  undertaken  with  a  view  to  the 
transport  of  individual  passengers  who  are  embodied  in  the  armed 
forces  of  the  enemy,  or  with  a  view  to  the  transmission  of  intelligence 
in  the  interest  of  the  enemy. 

(2)  If,  to  the  knowledge  of  either  the  owner,  the  charterer,  or  the 
master,  she  is  transporting  a  military  detachment  of  the  enemy,  or 
one  or  more  persons  who,  in  the  course  of  the  voyage,  directly  assist  the 
operations  of  the  enemy. 

In  the  cases  specified  under  the  above  heads,  goods  belonging  to 
the  owner  of  the  vessel  are  likewise  liable  to  condemnation. 

The  provisions  of  the  present  article  do  not  apply  if  the  vessel  is 


DECLARATION   OF  LONDON  1169 

encountered  at  sea  while  unaware  of  the  outbreak  of  hostilities,  or 
if  the  master,  after  becoming  aware  of  the  outbreak  of  hostilities, 
has  had  no  opportunity  of  disembarking  the  passengers.  The  vessel 
is  deemed  to  be  aware  of  the  existence  of  a  state  of  war  if  she  left  an 
enemy  port  subsequently  to  the  outbreak  of  hostilities,  or  a  neutral 
port  subsequently  to  the  notification  of  the  outbreak  of  hostilities  to 
the  Power  to  which  such  port  belongs,  provided  that  such  notification 
was  made  in  sufficient  time. 

Art.  46.  A  neutral  vessel  will  be  condemned  and,  in  a  general  way, 
receive  the  same  treatment  as  would  be  applicable  to  her  if  she  were 
an  enemy  merchant  vessel : 

(1)  If  she  takes  a  direct  part  in  the  hostilities; 

(2)  If  she  is  under  the  orders  or  control  of  an  agent  placed  on  board 
by  the  enemy  Government ; 

(3)  If  she  is  in  the  exclusive  employment  of  the  enemy  Government; 

(4)  If  she  is  exclusively  engaged  at  the  time  either  in  the  transport 
of  enemy  troops  or  in  the  transmission  of  intelligence  in  the  interest 
of  the  enemy. 

In  the  cases  covered  by  the  present  article,  goods  belonging  to  the 
owner  of  the  vessel  are  likewise  liable  to  condemnation. 

Art.  47.  Any  individual  embodied  in  the  armed  forces  of  the  en- 
emy who  is  found  on  board  a  neutral  merchant  vessel,  may  be  made  a 
prisoner  of  war,  even  though  there  be  no  ground  for  the  capture  ot 
the  vessel. 

Chapter  IV. — Destruction  of  Neutral  Prizes 

Art.  48.  A  neutral  vessel  which  has  been  captured  may  not  be  de- 
stroyed by  the  captor;  she  must  be  taken  into  such  port  as  is  proper 
for  the  determination  there  of  all  questions  concerning  the  validity  of 
the  capture. 

Art.  49.  As  an  exception,  a  neutral  vessel  which  has  been  captured 
by  a  belligerent  warship,  and  which  would  be  liable  to  condemnation, 
may  be  destroyed  if  the  observance  of  article  48  would  involve  danger 
to  the  safety  of  the  warship  or  to  the  success  of  the  operations  in  which 
she  is  engaged  at  the  time. 

Art.  50.  Before  the  vessel  is  destroyed  all  persons  on  board  must 
be  placed  in  safety,  and  all  the  ship's  papers  and  other  documents  which 
the  parties  interested  consider  relevant  for  the  purpose  of  deciding  on 
the  validity  of  the  capture  must  be  taken  on  board  the  warship. 

Art.  51.  A  captor  who  has  destroyed  a  neutral  vessel  must,  prior  tc 
any  decision  respecting  the  validity  of  the  prize,  establish  that  he  only 
acted  in  the  face  of  an  exceptional  necessity  of  the  nature  contemplated 
in  Article  49.  If  he  fails  to  do  this,  he  must  compensate  the  parties 
interested  and  no  examination  shall  be  made  of  the  question  whether 
the  capture  was  valid  or  not. 
Scott  Int.Law— 74 


1170  APPENDIX  n 

Art.  52.  If  the  capture  of  a  neutral  vessel  is  subsequently  held  to  be 
invalid,  though  the  act  of  destruction  has  been  held  to  have  been  jus- 
tifiable, the  captor  must  pay  compensation  to  the  parties  interested, 
in  place  of  the  restitution  to  which  they  would  have  been  entitled. 

Art.  53.  If  neutral  goods  not  liable  to  condemnation  have  been  de- 
stroyed with  the  vessel,  the  owner  of  such  goods  is  entitled  to  com- 
pensation. 

Art.  54.  The  captor  has  the  right  to  demand  the  handing  over,  or 
to  proceed  himself  to  the  destruction  of,  any  goods  liable  to  condemna- 
tion found  on  board  a  vessel  not  herself  liable  to  condemnation,  pro- 
vided that  the  circumstances  are  such  as  would,  under  article  49,  jus- 
tify the  destruction  of  a  vessel  herself  liable  to  condemnation.  The 
captor  must  enter  the  goods  surrendered  or  destroyed  in  the  logbook 
of  the  vessel  stopped,  and  must  obtain  duly  certified  copies  of  all  rel- 
evant papers.  When  the  goods  have  been  handed  over  or  destroyed, 
and  the  formalities  duly  carried  out,  the  master  must  be  allowed  to 
continue  his  voyage. 

The  provisions  of  articles  51  and  52  respecting  the  obligations  of  a 
captor  who  has  destroyed  a  neutral  vessel  are  applicable. 

Chapter  V. — Transfer  to  a  Neutral  Flag 

Art.  55.  The  transfer  of  an  enemy  vessel  to  a  neutral  flag,  effected 
before  the  outbreak  of  hostilities,  is  valid,  unless  it  is  proved  that 
such  transfer  was  made  in  order  to  evade  the  consequences  to  which 
an  enemy  vessel,  as  such,  is  exposed.  There  is,  however,  a  presump- 
tion, if  the  bill  of  sale  is  not  on  board  a  vessel  which  has  lost  her  bel- 
ligerent nationality  less  than  sixty  days  before  the  outbreak  of  hos- 
tilities, that  the  transfer  is  void.    This  presumption  may  be  rebutted. 

Where  the  transfer  was  effected  more  than  thirty  days  before  the 
outbreak  of  hostilities,  there  is  an  absolute  presumption  that  it  is  valid 
if  it  is  unconditional,  complete,  and  in  conformity  with  the  laws  of 
the  countries  concerned,  and  if  its  effect  is  such  that  neither  the  con- 
trol of,  nor  the  profits  arising  from  the  employment  of,  the  vessel  re- 
main in  the  same  hands  as  before  the  transfer.  If,  however,  the  ves- 
sel lost  her  belligerent  nationality  less  than  sixty  days  before  the  out- 
break of  hostilities  and  if  the  bill  of  sale  is  not  on  board,  the  capture 
of  the  vessel  gives  no  right  to  damages. 

Art.  56.  The  transfer  of  an  enemy  vessel  to  a  neutral  flag  effected 
after  the  outbreak  of  hostilities,  is  void  unless  it  is  proved  that  such 
transfer  w^as  not  made  in  order  to  evade  the  consequences  to  which 
an  enemy  vessel,  as  such,  is  exposed. 

There,  however,  is  an  absolute  presumption  that  a  transfer  is  void : 

(1)  If  the  transfer  has  been  made  during  a  voyage  or  in  a  blockaded 
port. 

(2)  If  a  right  to  repurchase  or  recover  the  vessel  is  reserved  to  the 
vendor. 

Scott  Int.Law 


DECLARATION   OP  LONDON  1171 

(3)  If  the  requirements  of  the  municipal  law  governing  the  right 
to  fly  the  flag  under  which  the  vessel  is  sailing,  have  not  been  ful- 
filled. 

Chapter  VI. — Enemy  Character 

Art.  57.  Subject  to  the  provisions  respecting  transfer  to  another  flag, 
the  neutral  or  enemy  character  of  a  vessel  is  determined  by  the  flag 
which  she  is  entitled  to  fly. 

The  case  where  a  neutral  vessel  is  engaged  in  a  trade  which  is  closed 
in  time  of  peace,  remains  outside  the  scope  of,  and  is  in  no  wise  affected 
by,  this  rule. 

Art.  58.  The  neutral  or  enemy  character  of  goods  found  on  board 
an  enemy  vessel  is  determined  by  the  neutral  or  enemy  character  of  the 
owner. 

Art.  59.  In  the  absence  of  proof  of  the  neutral  character  of  goods 
found  on  board  an  enemy  vessel,  they  are  presumed  to  be  enemy  goods. 

Art.  60.  Enemy  goods  on  board  an  enemy  vessel  retain  their  enemy 
character  until  they  reach  their  destination,  notwithstanding  any  trans- 
fer effected  after  the  outbreak  of  hostilities  while  the  goods  are  being 
forwarded. 

If,  however,  prior  to  the  capture,  a  former  neutral  owner  exercises, 
on  the  bankruptcy  of  an  existing  enemy  owner,  a  recognized  legal 
right  to  recover  the  goods,  they  regain  their  neutral  character. 

Chapter  VII. — Convoy 

Art.  61.  Neutral  vessels  under  national  convoy  are  exempt  from 
search.  The  commander  of  a  convoy  gives,  in  writing,  at  the  request 
of  the  commander  of  a  belligerent  warship,  all  information  as  to  the 
character  of  the  vessels  and  their  cargoes,  which  could  be  obtained 
by  search. 

Art.  62.  If  the  commander  of  the  belligerent  warship  has  reason  to 
suspect  that  the  confidence  of  the  commander  of  the  convoy  has  been 
abused,  he  communicates  his  suspicions  to  him.  In  such  a  case  it  is 
for  the  commander  of  the  convoy  alone  to  investigate  the  matter.  He 
must  record  the  result  of  such  investigation  in  a  report,  of  which  a 
copy  is  handed  to  the  officer  of  the  warship.  If,  in  the  opinion  of 
the  commander  of  the  convoy,  the  facts  shown  in  the  report  justify  the 
capture  of  one  or  more  vessels,  the  protection  of  the  convoy  must  be 
withdrawn  from  such  vessels. 

Chapter  VIII. — Resistance  to  Search 

Art.  63.  Forcible  resistance  to  the  legitimate  exercise  of  the  right 
of  stoppage,  search,  and  capture,  involves  in  all  cases  the  condemnation 
of  the  vessel.  The  cargo  is  liable  to  the  same  treatment  as  the  cargo 
of  an  enemy  vessel.  Goods  belonging  to  the  master  or  owner  of  the 
vessel  are  treated  as  enemy  goods. 


1172  APPENDIX  n 


Chapter  IX. — Compensation 

Art.  64.  If  the  capture  of  a  vessel  or  of  goods  is  not  upheld  by  the 
prize  court,  or  if  the  prize  is  released  without  any  judgment  being  giv- 
en, die  parties  interested  have  the  right  to  compensation,  unless  there 
were  good  reasons  for  capturing  the  vessel  or  goods.     *     *     * 


DECLARATION    OF    WASHINGTON    IN    RELATION    TO 

THE  USE  OF  SUBMARINES  AND  NOXIOUS 

GASES  IN  WARFARE 

February  6,  1922  2 

The  United  States  of  America,  the  British  Empire,  France,  Italy 
and  Japan,  hereinafter  referred  to  as  the  Signatory  Powers,  desiring 
to  make  more  effective  the  rules  adopted  by  civilized  nations  for  the 
protection  of  the  lives  of  neutrals  and  non-combatants  at  sea  in  time 
of  war,  and  to  prevent  the  use  in  war  of  noxious  gases  and  chemicals, 
have  determined  to  conclude  a  Treaty  to  this  eft'ect  and  have  appointed 
as  their  Plenipotentiaries ;     *     *     * 

Who,  having  communicated  their  full  powers,  found  in  good  and 
due  form,  have  agreed  as  follows : 

Article  I 

The  Signatory  Powers  declare  that  among  the  rules  adopted  by  civ- 
ilized nations  for  the  protection  of  the  lives  of  neutrals  and  non-com- 
batants at  sea  in  time  of  war,  the  following  are  to  be  deemed  an  estab- 
lished part  of  international  law : 

(1)  A  merchant  vessel  must  be  ordered  to  submit  to  visit  and  search 
to  determine  its  character  before  it  can  be  seized. 

A  merchant  vessel  must  not  be  attacked  unless  it  refuse  to  submit 
to  visit  and  search  after  warning,  or  to  proceed  as  directed  after  sei- 
zure. 

A  merchant  vessel  must  not  be  destroyed  unless  the  crew  and  passen- 
gers have  been  first  placed  in  safety. 

(2)  Belligerent  submarines  are  not  under  any  circumstances  exempt 
from  the  universal  rules  above  stated ;  and  if  a  submarine  cannot  cap- 
ture a  merchant  vessel  in  conformity  with  these  rules  the  existing  law 
of  nations  requires  it  to  desist  from  attack  and  from  seizure  and  to 
permit  the  merchant  vessel  to  proceed  unmolested. 

2  Senate  Document  No.  126,  67th  Congress,  Second  Session,  p.  886. 


SUBMARINES   AND   NOXIOUS   GASES  1173 


Article  II 

The  Signatory  Powers  invite  all  other  civilized  Powers  to  express 
their  assent  to  the  foregoing  statement  of  established  law  so  that  there 
may  be  a  clear  public  understanding  throughout  the  world  of  the 
standards  of  conduct  by  which  the  public  opinion  of  the  world  is  to 
pass  judgment  upon  future  belligerents. 

Article  III 

The  Signatory  Powers,  desiring  to  insure  the  enforcement  of  the 
humane  rules  of  existing  law  declared  by  them  with  respect  to  attacks 
upon  and  the  seizure  and  destruction  of  merchant  ships,  further  de- 
clare that  any  person  in  the  service  of  any  Power  who  shall  violate 
any  of  those  rules,  whether  or  not  such  person  is  under  orders  of  a 
governmental  superior,  shall  be  deemed  to  have  violated  the  laws 
of  war  and  shall  be  liable  to  trial  and  punishment  as  if  for  an  act  of 
piracy  and  may  be  brought  to  trial  before  the  civil  or  military  author- 
ities of  any  Power  within  the  jurisdiction  of  which  he  may  be  found. 

Article  IV 

The  Signatory  Powers  recognize  the  practical  impossibility  of  using 
submarines  as  commerce  destroyers  without  violating,  as  they  were 
violated  in  the  recent  war  of  1914-1918,  the  requirements  universally 
accepted  by  civilized  nations  for  the  protection  of  the  lives  of  neutrals 
and  non-combatants,  and  to  the  end  that  the  proliibition  of  the  use  of 
submarines  as  commerce  destroyers  shall  be  universally  accepted  as  a 
part  of  the  law  of  nations  they  now  accept  that  prohibition  as  hence- 
forth binding  as  between  themselves  and  they  invite  all  other  nations 
to  adhere  thereto. 

Article  V 

The  use  in  war  of  asphyxiating,  poisonous  or  other  gases  and  all 
analogous  liquids,  materials  or  devices,  having  been  justly  condemned 
by  the  general  opinion  of  the  civilized  world  and  a  prohibition  of  such 
use  having  been  declared  in  treaties  to  which  a  majority  of  the  civilized 
Powers  are  parties. 

The  Signatory  Powers,  to  the  end  that  this  prohibition  shall  be  uni- 
versally accepted  as  a  part  of  international  law  binding  alike  the 
conscience  and  practice  of  nations,  declare  their  assent  to  such  prohibi- 
tion, agree  to  be  bound  thereby  as  between  themselves  and  invite  all 
other  civilized  nations  to  adhere  thereto.     *     *     * 


1174  '  APPENDIX  n 


WASHINGTON   RESOLUTION   FOR   A   COMMISSION    OF 
JURISTS  TO  CONSIDER  AMENDMENT 
OF  LAWS  OF  WAR 


February  4,  1922  8 

The  United  States  of  America,  the  British  Empire,  France,  Italy 
and  Japan  have  agreed: 

I.  That  a  Commission  composed  of  not  more  than  two  members  rep- 
resenting each  of  the  above-mentioned  Powers  shall  be  constituted  to 
consider  the  following  questions: 

(a)  Do  existing  rules  of  International  Law  adequately  cover  new 
methods  of  attack  or  defense  resulting  from  the  introduction  or  de- 
velopment, since  the  Hague  Conference  of  1907,  of  new  agencies  of 
warfare? 

(b)  If  not  so,  what  changes  in  the  existing  rules  ought  to  be  adopted 
in  consequence  thereof  as  a  part  of  the  law  of  nations? 

II.  That  notices  of  appointment  of  the  members  of  the  Commission 
shall  be  transmitted  to  the  Government  of  the  United  States  of  Ameri- 
ca within  three  months  after  the  adjournment  of  the  present  Confer- 
ence, which  after  consultation  with  the  Powers  concerned  will  fix  the 
day  and  place  for  the  meeting  of  the  Commission. 

III.  That  the  Commission  shall  be  at  liberty  to  request  assistance 
and  advice  from  experts  in  International  Law  and  in  land,  naval  and 
aerial  warfare. 

IV.  That  the  Commission  shall  report  its  conclusions  to  each  of  the 
Powers  represented  in  its  membership. 

Those  Powers  shall  thereupon  confer  as  to  the  acceptance  of  the 
report  and  the  course  to  be  followed  to  secure  the  consideration  of  its 
recommendations  by  the  other  civilized  Powers. 

Adopted  by  the  Conference  on  the  Limitation  of  Armament  at  the 
Sixth  Plenary  Session,  February  4,  1922.* 

3  Senate  Document  No.  126,  67th  Congress,  Second  Session,  p.  902. 

4  The  Conference  stated  in  another  resolution  that  "it  is  not  the  intention  of 
the  Powers  agreeing  to  the  appointment  of  a  Commission  to  consider  and  re- 
port upon  the  rules  of  International  Law  respecting  new  agencies  of  warfare 
that  the  Commission  shall  review  or  report  upon  the  rules  or  declarations  re- 
lating to  submarines  or  the  use  of  noxious  gases  and  chemicals  already  adopted 
by  the  Powers  in  this  Conference." 


BRITISH  ORDERS   IN   COUNCIL  1175 


APPENDIX  III 


No.  1 

ORDER   IN    COUNCIL    FRAMING   REPRISALS    FOR    RE- 
STRICTING FURTHER  THE  COMMERCE 
OF  GERMANY  ^ 

March  11,  1915.    London  Gazette,  March  15,  1915,  p.  2605. 

At  the  Court  at  Buckingham  Palace,  the  11th  day  of  March,  1915. 

Present:    The  King's  Most  Excellent  Majesty  in  Council. 

Whereas,  the  German  Government  has  issued  certain  Orders  which, 
in  violation  of  the  usages  of  war,  purport  to  declare  the  waters  sur- 
rounding the  United  Kingdom  a  miHtary  area,  in  which  all  British 
and  allied  merchant  vessels  will  be  destroyed  irrespective  of  the  safety 
of  the  lives  of  passengers  and  crew,  and  in  which  neutral  shipping 
will  be  exposed  to  similar  danger  in  view  of  the  uncertainties  of 
naval  warfare; 

And  whereas,  in  a  memorandum  accompanying  the  said  Orders  neu- 
trals are  warned  against  entrusting  crews,  passengers,  or  goods  to 
British  or  allied  ships; 

And  whereas,  such  attempts  on  the  part  of  the  enemy  give  to  His 
Majesty  an  unquestionable  right  of  retaliation; 

And  whereas,  His  Majesty  has  therefore  decided  to  adopt  further 
measures  in  order  to  prevent  commodities  of  any  kind  from  reaching 
or  leaving  Germany,  though  such  measures  will  be  enforced  without 
risk  to  neutral  ships  or  to  neutral  or  noncombatant  life,  and  in  strict 
observance  of  the  dictates  of  humanity ; 

And  whereas,  the  Allies  of  His  Majesty  are  associated  with  him  in 
the  steps  now  to  be  announced  for  restricting  further  the  commerce 
of  Germany : 

His  Majesty  is  therefore  pleased,  by  and  with  the  advice  of  his 
Privy  Council,  to  order  and  it  is  hereby  ordered  as  follows : 

I.  No  merchant  vessel  which  sailed  from  her  port  of  departure  after 
the  1st  March,  1915,  shall  be  allowed  to  proceed  on  her  voyage  to 
any  German  port. 

Unless  the  vessel  receives  a  pass  enabling  her  to  proceed  to  some 
neutral  or  allied  port  to  be  named  in  the  pass,  goods  on  board  any 
such  vessel  must  be  discharged  in  a  British  port  and  placed  in  the 
custody  of  the  Marshal  of  the  Prize  Court.    Goods  so  discharged,  not 

1  For  the  similar  decree  of  France,  dated  March  13,  1915,  see  Journal  Of- 
ficiel,  March  16,  1915,  p.  1388;  English  translation,  Special  Supplement  to 
American  Journal  of  International  Law,  vol.  9,  1915,  p.  113. 


1176  APPENDIX  m 

being  contraband  of  war,  shall,  if  not  requisitioned  for  the  use  of  His 
Majesty,  be  restored  by  order  of  the  Court,  upon  such  terms  as  the 
Court  may  in  the  circumstances  deem  to  be  just,  to  the  person  entitled 
thereto. 

II.  No  merchant  vessel  which  sailed  from  any  German  port  after 
the  1st  March,  1915,  shall  be  allowed  to  proceed  on  her  voyage  with 
any  goods  on  board  laden  at  such  port. 

All  goods  laden  at  such  port  must  be  discharged  in  a  British  or  allied 
port.  Goods  so  discharged  in  a  British  port  shall  be  placed  in  the 
custody  of  the  Marshal  of  the  Prize  Court,  and,  if  not  requisitioned 
for  the  use  of  His  Majesty,  shall  be  detained  or  sold  under  the  direc- 
tion of  the  Prize  Court.  The  proceeds  of  the  goods  so  sold  shall  be 
paid  into  Court  and  dealt  with  in  such  manner  as  the  Court  may  in 
the  circumstances  deem  to  be  just: 

Provided  that  no  proceeds  of  the  sale  of  such  goods  shall  be  paid  out 
of  Court  until  the  conclusion  of  peace,  except  on  the  application  of  the 
proper  officer  of  the  Crown,  unless  it  be  shown  that  the  goods  had  be- 
come neutral  property  before  the  issue  of  this  Order: 

Provided  also  that  nothing  herein  shall  prevent  the  release  of  neutral 
property  laden  at  such  enemy  port  on  the  application  of  the  proper 
officer  of  the  Crown. 

III.  Every  merchant  vessel  which  sailed  from  her  port  of  departure 
after  the  1st  March,  1915,  on  her  way  to  a  port  other  than  a  German 
port,  carrying  goods  with  an  enemy  destination,  or  which  are  enemy 
property,  may  be  required  to  discharge  such  goods  in  a  British  or 
allied  port.  Any  goods  so  discharged  in  a  British  port  shall  be  placed 
in  the  custody  of  the  Marshal  of  the  Prize  Court,  and,  unless  they  are 
contraband  of  war,  shall,  if  not  requisitioned  for  the  use  of  His 
Majesty,  be  restored  by  order  of  the  Court,  upon  such  terms  as  the 
Court  may  in  the  circumstances  deem  to  be  just,  to  the  person  entitled 
thereto : 

Provided  that  this  Article  shall  not  apply  in  any  case  falling  within 
Articles  II  or  IV  of  this  Order. 

IV.  Every  merchant  vessel  which  sailed  from  a  port  other  than  a 
German  port  after  the  1st  March,  1915,  having  on  board  goods  which 
are  of  enemy  origin  or  are  enemy  property  may  be  required  to  dis- 
charge such  goods  in  a  British  or  allied  port.  Goods  so  discharged 
in  a  British  port  shall  be  placed  in  the  custody  of  the  Marshal  of  the 
Prize  Court,  and,  if  not  requisitioned  for  the  use  of  His  Majesty, 
shall  be  detained  or  sold  under  the  direction  of  the  Prize  Court.  The 
proceeds  of  goods  so  sold  shall  be  paid  into  Court  and  dealt  with  in 
such  manner  as  the  Court  may  in  the  circumstances  deem  to  be  just: 

Provided  that  no  proceeds  of  the  sale  of  such  goods  shall  be  paid 
out  of  Court  until  the  conclusion  of  peace  except  on  the  application 
of  the  proper  officer  of  the  Crown,  unless  it  be  shown  that  the  goods 
had  become  neutral  property  before  the  issue  of  this  Order. 


BRITISH   ORDERS   IN   COUNCIL  1177 

Provided  also  that  nothing  herein  shall  prevent  the  release  ot  neutral 
property  of  enemy  origin  on  the  application  of  the  proper  officer  of  the 
Crown. 

V.  (1)  Any  person  claiming  to  be  interested  in,  or  to  have  any  claim 
in  respect  of,  any  goods  (not  being  contraband  of  war)  placed  in  the 
custody  of  the  Marshal  of  the  Prize  Court  under  this  Order,  or  in  the 
proceeds  of  such  goods,  may  forthwith  issue  a  writ  in  the  Prize 
Court  against  the  proper  Officer  of  the  Crown  and  apply  for  an  order 
that  the  goods  should  be  restored  to  him,  or  that  their  proceeds  should 
be  paid  to  him,  or  for  such  other  order  as  the  circumstances  of  the 
case  may  require. 

(2)  The  practice  and  procedure  of  the  Prize  Court  shall,  so  far  as 
applicable,  be  followed  mutatis  mutandis  in  any  proceedings  conse- 
quential upon  this  Order. 

VI.  A  merchant  vessel  which  has  cleared  for  a  neutral  port  from  a 
British  or  allied  port,  or  which  has  been  allowed  to  pass  having  an 
ostensible  destination  to  a  neutral  port,  and  proceeds  to  any  enemy 
port,  shall,  if  captured  on  any  subsequent  voyage,  be  liable  to  con- 
demnation. 

VII.  Nothing  in  this  Order  shall  be  deemed  to  affect  the  liability  of 
any  vessel  or  goods  to  capture  or  condemnation  independently  of  this 
Order. 

VIII.  Nothing  in  this  Order  shall  prevent  the  relaxation  of  the  pro- 
visions of  this  Order  in  respect  of  the  merchant  vessels  of  any  country 
which  declares  that  no  commerce  intended  for  or  originating  in  Ger- 
many or  belonging  to  German  subjects  shall  enjoy  the  protection  of  its 
flag. 

Almeric  FitzRoy. 


No.  2 

ORDER  IN  COUNCIL  DEFINING  THE  EXPRESSIONS  "EN- 
EMY DESTINATION,"  "ENEMY  ORIGIN,"  AND  "EN- 
EMY PROPERTY"  IN  ARTICLES  III  AND  IV  OF  THE 
ORDER  IN  COUNCIL  OF  MARCH  11.  1915 

January  10,  1917.    London  Gazette,  January  12,  1917,  p.  4S9. 

At  the  Court  at  Buckingham  Palace,  the  10th  day  of  January,  1917. 

Present:    The  King's  Most  Excellent  Majesty  in  Council. 

Whereas,  on  the  11th  day  of  March,  1915,  an  Order  was  issued  by 
His  Majesty  in  Council  directing  that  all  ships  which  sailed  from  their 
ports  of  departure  after  the  1st  day  of  March,  1915,  might  be  re- 
qtiired  to  discharge  in  a  British  or  Allied  port  goods  which  were  of 
enemy  origin  or  of  enemy  destination  or  which  were  enemy  property ; 

And  whereas,  such  Order  in  Council  was  consequent  upon  certain 


1178  APPENDIX   m 

Orders  issued  by  the  German  Government  purporting  to  declare,  in 
violation  of  the  usages  of  war,  the  waters  surrounding  the  United 
Kingdom  a  military  area,  in  which  all  British  and  Allied  merchant 
vessels  would  be  destroyed,  irrespective  of  the  lives  of  passengers  and 
crew,  and  in  which  neutral  shipping  would  be  exposed  to  similar  dan- 
ger, in  view  of  the  uncertainties  of  naval  warfare; 

And  whereas,  the  sinking  of  British,  Allied,  and  neutral  merchant 
ships,  irrespective  of  the  lives  of  passengers  and  crews,  and  in  viola- 
tion of  the  usages  of  war,  has  not  been  confined  to  the  waters  sur- 
rounding the  United  Kingdom,  but  has  taken  place  in  a  large  portion 
of  the  area  of  naval  operations ; 

And  whereas,  such  illegal  acts  have  been  committed  not  only  by 
German  warships  but  by  warships  flying  the  flag  of  each  of  the  enemy 
countries ; 

And  whereas,  on  account  of  the  extension  of  the  scope  of  the  illegal 
operations  carried  out  under  the  said  German  Orders,  and  in  retaliation 
therefor,  vessels  have  been  required  under  the  provisions  of  the  Order 
in  Council  aforementioned  to  discharge  in  a  British  or  Allied  port 
goods  which  were  of  enemy  origin  or  of  enemy  destination  or  which 
were  enemy  property,  irrespective  of  the  enemy  country  from  or  to 
which  such  goods  were  going  or  of  the  enen^y  country  in  which  was 
domiciled  the  person  whose  property  they  were; 

And  whereas,  doubts  have  arisen  as  to  whether  the  term  "enemy" 
in  articles  3  and  4  of  the  said  Order  in  Council  includes  enemy  coun- 
tries other  than  Germany : 

Now,  therefore,  His  Majesty  is  pleased,  by  and  with  the  advice  of 
His  Privy  Council,  to  order,  and  it  is  hereby  ordered,  as  follows : 

1.  In  articles  3  and  4  of  the  said  Order  in  Council  of  the  11th 
March,  1915,  aforementioned,  the  terms  "enemy  destination"  and 
"enemy  origin"  shall  be  deemed  to  apply  and  shall  apply  to  goods  des- 
tined for  or  originating  in  any  enemy  country,  and  the  term  "enemy 
property"  shall  be  deemed  to  apply  and' shall  apply  to  goods  belonging 
to  any  person  domiciled  in  any  enemy  country. 

2.  Effect  shall  be  given  to  this  Order  in  the  application  of  the  said 
Order  in  Council  of  the  11th  March,  1915,  to  goods  which '  previous 
to  the  date  of  this  Order  have  been  discharged  at  a  British  or  Allied 
port,  being  goods  of  destination  or  origin  or  property  which  was 
enemy  though  not  German,  and  all  such  goods  shall  be  detained  and 
dealt  with  in  all  respects  as  is  provided  in  the  said  Order  in  Council  of 
the  11th  March,  1915. 

J.  C.  LedliS. 


BRITISH  ORDERS  IN   COUNCIL  1179 

No.  3 

ORDER  IN  COUNCIL  SUPPLEMENTAL  TO  THE  ORDERS 
IN  COUNCIL  OF  MARCH  11,  1915.  AND  JANUARY  10, 
1917,  FOR  PREVENTING  COMMODITIES  OF  ANY 
KIND  FROM  REACHING,  OR  LEAVING,  ENEMY 
COUNTRIES 

February  16,  1917.    London  Gazette,  February  21,  1917,  p.  1845. 

At  the  Court  at  Buckingham  Palace,  the  16th  day  of  February,  1917. 

Present:    The  King's  Most  Excellent  Majesty  in  Council. 

Whereas,  by  an  Order  in  Council  dated  the  11th  day  of  March, 
1915,  His  Majesty  was  pleased  to  direct  certain  measures  to  be  taken 
against  the  commerce  of  the  enemy ; 

And  whereas,  the  German  Government  has  now  issued  a  memo- 
randum declaring  that  from  the  1st  February,  1917,  all  sea  traffic  will 
be  prevented  in  certain  zones  therein  described  adjacent  to  Great  Brit- 
ain and  France  and  Italy,  and  that  neutral  ships  will  navigate  the 
said  zones  at  their  own  risk; 

And  whereas,  similar  directions  have  been  given  by  other  enemy 
powers ; 

And  whereas,  the  orders  embodied  in  the  said  memorandum  are  in 
flagrant  contradiction  with  the  rules  of  international  law,  the  dictates 
of  humanity,  and  the  treaty  obligations  of  the  enemy: 

And  whereas,  such  proceedings  on  the  part  of  the  enemy  render  it 
necessary  for  His  Majesty  to  adopt  further  measures  in  order  to  main- 
tain the  efficiency  of  those  previously  taken  to  prevent  commodities 
of  any  kind  from  reaching  or  leaving  the  enemy  countries,  and  for 
this  purpose  to  subject  to  capture  and  condemnation  vessels  carrying 
goods  with  an  enemy  destination  or  of  enemy  origin  unless  they  afford 
unto  the  forces  of  His  Majesty  and  His  Allies  ample  opportunities  of 
examining  their  cargoes,  and  also  to  subject  such  goods  to  condemna- 
tion : 

His  Majesty  is  therefore  pleased,  by  and  with  the  advice  of  His 
Privy  Council,  to  order,  and  it  is  hereby  ordered,  that  the  following 
directions  shall  be  observed  in  respect  of  all  vessels  which  sail  from 
their  port  of  departure  after  the  date  of  this  Order : 

1.  A  vessel  which  is  encountered  at  sea  on  her  way  to  or  from  a 
port  in  any  neutral  country  affording  means  of  access  to  the  enemy 
territoiy  without  calling  at  a  port  in  British  or  Allied  territory  shall, 
until  the  contrary  is  established,  be  deemed  to  be  carrying  goods  with 
an  enemy  destination,  or  of  enemy  origin,  and  shall  be  brought  in  for 
examination,  and,  if  necessary,  for  adjudication  before  the  Prize  Court. 

2.  Any  vessel  carrying  goods  with  an  enemy  destination,  or  of  enemy 
origin,  shall  be  liable  to  capture  and  condemnation  in  respect  of  the 
carriage  of  such  goods ;   provided  that,  in  the  case  of  any  vessel  which 


1180  APPENDIX  m 

calls  at  an  appointed  British  or  Allied  port  for  the  examination  of  her 
cargo,  no  sentence  of  condemnation  shall  be  pronounced  in  respect  only 
of  the  carriage  of  goods  of  enemy  origin  or  destination,  and  no  such 
presumption  as  is  laid  down  in  Article  1  shall  arise. 

3.  Goods  which  are  found  on  the  examination  of  any  vessel  to  be 
goods  of  enemy  origin  or  of  enemy  destination  shall  be  liable  to  con- 
demnation. 

4.  Nothing  in  this  Order  shall  be  deemed  to  affect  the  liability  of 
any  vessel  or  goods  to  capture  or  condemnation  independently  of  this 
Order. 

5.  This  Order  is  supplemental  to  the  Orders  in  Council  of  the  11th 
day  of  March,  1915,  and  the  10th  day  of  January,  1917,  for  re- 
stricting the  commerce  of  the  enemy. 

Alm^ric  FitzRoy. 


INDEX 


[the  FIGtTEES  BEFEE  TO  FAQES] 


ABUSE  OF  HOSPITALITY,  858-S64. 
ACCRETION,  195-200. 
ACQUISITION  OF  TERRITORY, 

Accretion,  195-200. 

Avulsion,  214-217. 

Conquest  and  cession,  181-195. 

Discovery  and  occupation,  173-180. 

ACTS  OF  STATE,  394-403,  482-485. 
See,  also.  State. 

ADAMS,  J.  Q., 

On  recognition  of  independence,  74  note. 

ADJUDICATION  OF  PRIZE,  1036-1096. 

AGENTS  IN  ENEMY  TERRITORY, .  580-584,  584  note  5. 

AGENTS  OF  STATE, 

See  State. 
ALABAMA  CLAIMS,  842. 

ALIEN  ENEMIES, 

Before  courts  of  justice,  566-579. 

Right  to  sue,  according  to  English  law,  567  note  3,  570-576,  576  note  5. 
In  United  States,  576-579,  579  note  11. 

ALLEGIANCE, 

May  not  be  changed  in  time  of  war,  135  note  1. 
Temporary,  indictment  for  treason,  136. 
Reasons  for,  137  note  3. 

ALLUVIUM, 

See  Accretion. 

ANARCHISTS, 

Crimes  of,  not  regarded  political  offenses,  427, 

ANGARY, 

Definition  of,  733  note  1. 
Examples  of,  733-743,  733  note  1. 
Right  of,  733-743. 

ARBITRATION,  INTERNATIONAL^ 
Nature  and  extent  of,  476,  477. 

ARMED  VESSELS, 

Employment  of,  by  neutral,  1012-1021. 

ARMISTICES, 

Convention  of  November  11,  1918,  capture  after,  1107,  1108. 
Hague  Convention  of  1907,  1144. 

ASPHYXIATING  GASES, 

Hague  Declaration  of  1899,  1133. 
ASSISTANCE  OF  NEUTRALS  TO  BELLIGERENTS,  865-911. 
Scott  Int.Law  (1181) 


1182  INDEX 

[The  figures  refer  to  pages] 

ASYLUM, 

Right  of,  323-336. 

In  embassy  or  legation,  323,  325  note  28. 

On  merchant  vessel,  does  not  exist,  332  et  seq.,  336  note  31. 

On  pubUc  vessel,  326-331,  331  note  30. 

AUGMENTATION, 

Of  force  or  equipment  of  belligerent  cruiser,  826. 

AVULSION,  214-217. 

BACON,  ROBERT,  Acting  Secretary  of  State, 

Settlement  of  claims  of  Roman  Catholic  Church  in  Porto  Rico  upon  ce»- 
sion  to  United  States,  108  note  39. 

BALLOONS, 

Hague  Convention  of  1907,  1162. 

BASE, 

Of  hostile  operations,  823. 

BAYS, 

As  boundaries,  229-242. 

Chesapeake,  within  jurisdiction  of  United  States  as  distinct  from  high 

sea,  232. 
Fundy,  229. 
When  considered  territory,  and  when  "parts  of  high  sea,  237  note  27, 

238-242. 

BEHRING  SEA, 

Part  of  high  seas,  248. 

BELLIGERENCY, 

Recognition  of,  542-544. 

BELLIGERENTS, 

As  distinguished  from  insurgents,  537-538. 

Assistance  to,  by  neutrals,  S65-911. 

Intercourse  between,  622-658. 

Interned  in  neutral  territory,  Hague  Convention  of  1907,  1147,  1148. 

Neutral  trade  with,  912-1035. 

Qualifications  of,  Hague  Convention  of  1907,  1139. 

BELLIGERENT  USE  OF  NEUTRAL  TERRITORY,  823-848, 

BLOCKADE, 

Absence  of  blockading  squadron,  938  et  seq.,  941,  943. 

Contract  with  neutral  to  run,  not  crime,  912-920. 

De  facto,  944  et  seq. 

Doctrine  of  continuous  voyage  applied  to,  988  et  seq. 

Does  not  apply  to  internal  communication,  936,  937. 

Efficiency  of,  954  note  25. 

Entrance  by  permission  of  blockading  squadron,  935. 

Entrance  on  plea  of  necessity,  938. 

Essentials  of,  932-934. 

French  rule  regarding  warning,  937  note  12. 

In  time  of  war.  Declaration  of  London,  1162-1164. 

Liability  of  owner  for  action  of  captain.  951-953. 

May  prevent  ingress,  without  affecting  egress,  696-701,  950. 

Notice  of,  936,  937,  939. 

Pacific,  510-513. 

Penalty  for  breach,  954. 

BOMBARDMENT, 

Hague  Convention  of  1907,  war  on  land,  1142,  1143. 

Of  undefended  ports,  etc.,  Hague  Convention  of  1907,  naval  warfare,  1151- 
1153. 

BOOKS, 

'  Exempt  from  capture,  769. 


INDEX  1183 

[The  figures  refer  to  pages] 

BOUNDARIES, 
Bays,  229-242. 
River,  217. 

River  and  bridge,  206-212. 
Sounds,  straits,  and  lakes,  217-228. 

BULLETS,  expanding,  Hague  Declaration  of  1S99,  1133. 

CANALS, 

Navigation  of,  221. 

CAPITULATIONS, 

Hague  Convention  of  1907,  1144. 

CAPTURE  AT  SEA, 

After  Armistice  Convention  of  November  11,  1918,  1107,  1108. 

Certain  vessels  exempt,  Hague  Convention  of  1907,  1157. 

Deep-sea  fishermen  not  exempt,  762-766. 

Exemption  from  capture,  recapture,  rescue,  745-779. 

Exemption  of  longshore  fishermen,  12-16. 

In  neutral  waters,  illegal  as  against  neutral  country,  848  et  seq. 

Order  of  superior  does  not  free  from  liability  inferior  acting  upon  it, 
752-755,  755  note  7. 

Passing  of  title  to  prize,  1042. 

Without  probable  cause,  liability  for,  744-750. 
CARTEL  CONTRACT  PERMISSIBLE,  649  et  seq.,  653  note  22. 
CESSION  AND  CONQUEST,  181-195. 
CESSION  OF  TERRITORY. 

Effect,  188. 
CITIZENSHIP, 

See  Expatriation ;   Nationality;   Naturalization. 

CIVILIAN  COMMISSIONERS, 
Trent  Case,  887  note  11. 

COMITY  OF  NATIONS  AS  DISTINCT  FROM  INTERNATIONAL  LAW,  17. 

COMMERCIAL  DOMICILE,  662-664,  685  note  20, 

COMMISSIONS  OF  INQUIRY,  475-476. 

COMPENSATION  FOR  ILLEGAL  CAPTURE, 
Declaration  of  London,  1172. 

COMPROMIS  OR  SPECIAL  AGREEMENT, 
Definition  of,  477. 

COMPULSIVE   MEASURES   OF  REDRESS  IN  TIME  OF  PEACE, 

Embargo,  hostile,  497,  498. 

Non-hostile,  493^97. 
Non-intercourse,  486-492. 
Retaliation,  499-503. 

CONDBiMNATION, 

Of  prize  lying  in  neutral  country,  by  prize  court  of  captor,  1098  note  3. 

Of  prize,  necessary,  1036-1044. 

Of  property  captured  by  land  forces  not  necessary,  1037  note. 

Or  some  act  of  forfeiture  required  to  divest  title,  1099. 

CONFEDERATE  STATES, 
See  State,  succession  of. 

CONFISCATION  DUE  TO  FALSE  TESTIMONY  OR  FALSE  PAPERS,  976 
et  seq.,  979  note  39. 

CONQUEST  AND  CESSION,  181-195,  694. 

CONSULAR  JURISDICTION,  379-385,  385  note  58. 

CONSULS,  311-^22. 

As  commercial  agents  not  exempt  from  local  jurisdiction,  311-313,  314- 

317.  322  note  26. 
May  be  exempt  by  special  convention,  318-322. 


1184  INDEX 

[The  figures  refer  to  pages] 

CONTINUOUS  VOYAGE,  982-997. 

Applied  to  blockade  as  well  as  contraband,  9S8  et  seq. 

As  affecting  contraband,  955  note  26. 

Root,  Secretary  of  State,  regarding,  955  note  26. 

CONTRABAND,  955-981. 

Agi-eement  of  neutral  to  transport,  not  crime,  920-925,  925  note  2.    > 

Application  of  continuous  voyage,  955  note  26,  988  et  seq. 

Classification  of,  980. 

Declaration  of  London,  concerning,  1162-1164. 

Doctrine  of  infection,  979  note  39. 

Does  not  include  persons,  877  et  seq. 

Effect  of  extension  of  lists  of,  955  note  26. 

Knowledge  of,  on  part  of  owner,  971-973,  973  note  31. 

Penalty  attaching  to  end  of  return  voyage,  975  et  seq. 

Penalty  for  carrying,  970,  971,  975  note  37. 

Provisions  as,  955,  958,  962-972. 

CONTRACTS  AND  PRIVATE  RIGHTS, 
Effect  of  war  on,  585-621. 

CONVENTIONS,  DECLARATIONS,  AND  RESOLUTIONS, 

Geneva,  convention  of  1906  for  amelioration  of  condition  of  wounded  in 

armies  in  the  field,  1133-1137. 
The  Hague,  of  1899, 

Convention  for  the  pacific  settlement  of  international  disputes,  474- 

477. 
Declaration  concerning  asphyxiating  gases,  1133. 
Declaration   concerning  expanding  bullets,  1133. 
The  Hague,  of  1907, 

Convention  concerning  bombardment  by  naval  forces  in  time  of  war, 

1151-1153. 
Convention  concerning  the  rights  and  duties  of  neutral  powers  in 

naval  war,  1158-1161. 
Convention  for  the  adaptation  to  maritime  warfare  of  the  principles 

of  the  Geneva  Convention,  1153-1156. 
Convention  relating  to  the  conversion  of  merchant  ships  into  war 

ships,  1150. 
Convention  relating  to  the  status  of  enemy  merchant  ships  at  the 

outbreak  of  hostilities,  1149,  1150. 
Convention  relative  to  certain  restrictions  with  regard  to  the  exer- 
cise of  the  right  of  capture  in  naval  war,  1157,  1158. 
Convention   relative  to  the  laying  of  automatic  submarine  contact 

mines,  1150,  1151. 
Convention  relative  to  the  opening  of  hostilities,  1138. 
Convention  respecting  the  laws  and  customs  of  war  on  land,  1138- 

1146. 
Convention  respecting  the  rights  and  duties  of  neutral  powers  and 

persons  in  case  of  war  on  land,  1146-1149. 
Declaration  prohibiting  the  discharge  of  projectiles  and  explosives 
from  balloons,  1162. 
London,  declaration  of,  1162-1172. 
Paris,  declaration  of,  1132. 
St.  Petersburg,  declaration  of,  1132. 
Washington,  declaration  of  concerning  use  of  submarines  and  noxious 

gases  in  warfare,  1172,  1173. 
Washington,  resolution  for  commission  of  jurists  to  consider  amendment 
of  laws  of  war,  1174. 

CONVOY, 

Declaration  of  T^ondon,  1171. 

Of  evacuation,  Geneva  Convention  of  1906,  1136. 

Vessels  sailing  under  armed,  1003. 


INDEX  1185 

[Tbe  figures  refer  to  pages] 

CORRESPONDENCE. 

Diplomatic,  carnage  of,  871. 

Dispatches  of  enemy,  888  et  seq. 

Exempt  from  capture,  but  not  mail  boat  carrying  it,  756-759. 

Postal,  Hague  Convention  of  1907,  1157. 

COURT  OF  INTERNATIONAL  JUSTICE,  1120-1131. 

COVENANT  OF  LEAGUE  OF  NATIONS,  1109-1119. 

CREWS    OF    ENEMY    jNIERCHANT    SHIPS    CAPTURED    BY    BELLIGER- 
ENT, 
Hague  Convention  of  1907,  1157. 

CRIMES  COMMITTED  ABROAD,  377.  387. 

DEBTS, 

Effect  of  war  on,  4.53,  556. 

DECLARATION  OF  PARIS,  964,  1089. 

DECLARATIONS, 

See  Conventions,  Declarations,  and  Resolutions. 
DE  FACTO   GOVERNMENT, 

Recognition  of,  and  consequence,  67  note  24,  70  et  seq. 

DESTINATION,  974,  981-1003. 

DESTRUCTION  OF  PRIZE,  780-803. 
Declaration  of  London,  1169,  1170. 

Of  enemy  prize  permissible,  if  vessel  cannot  be  carried  into  port,  pro- 
vided passengers  and  crew  put  in  place  of  safety,  780-783. 
Of  neutral  prize  not  permissible,  783  note  4. 

DIPLOMATIC  AGENTS, 

Exempt  from  jurisdiction,  for  reasonable  time  after  expiration  of  mis- 
sion. 291. 
Ill  third  countries,  293,  294. 
Exempt  from  local  iurisdiction,  286-295. 
Protection  to,  295-299,  302. 

DIPLOMATIC  CORRESPONDENCE, 

Carriage  of,  871. 

DISCOVERY  AND   OCCUPATION,  173-180. 

DISPATCHES, 

Belligerents  carried  by  neutral  vessel,  867,  974. 
Enemy,  888  et  seq. 

DISPLAY  OF  FORCE,  504-509. 

DOMICILE,  659-693. 

Elements  entering  into.  659-661. 

In  extraterritorial  jurisdiction,  664  note  11. 

Of  American  citizens  residing  in  England  upon  outbreak  of  war,  672-680. 

DOMICILE  AND  NATIONALITY  THEORIES  CONTRASTED,  666-669. 

DUTY  TO   RETURN    HOME    UPON    OUTBREAK   OF    WAR,    689-692,    692 
note  29. 

EGYPT, 

Status  in  1922,  33  note  6. 

EMBARGO,  49.3-498. 

EMBI^M  OF  SANITARY   SERVICE  OF   ARMIES, 
Geneva  Convention,  1136,  1137. 

ENEJUY, 

Means  of  injuring,  Hague  Convention  of  1907,  1112,  1143. 
Trading  with,  597-602,  602  note  10. 
Scott  Int.Law— 75 


1186  INDE3X 

[The  figures  refer  to  pages] 

ENEMT  CHARACTER,     . 

Declaration  of  Loudon,  1171. 
ENEMY  DESTINATION, 
Definition  of,  1177,  1178. 

ENEMY    MERCHANT    VESSEL    MAY    NOT,    ACCORDING    TO    LAW    OF 
GERMANY,   DEFEND    ITSELF, 
The  Captain  Fryatt,  779  note  28. 

ENEMY  ORIGIN, 

Definition  of,  1177,  1178. 

ENEMY  PROPERTY, 

Capture  after  declaration  of  peace,  1102-1107. 

Confiscated  by  United  States  in  Revolutionary  War,  560  note  6. 

Confiscated  upon  outbreak  of  war,  555-560. 

Definition  of,  683-685,  1177,  1178. 

Insurance  upon,  allowable,  5S9-.593,  593  note  7. 
Forbidden,  585-589,  569  note  5. 

In  territory  of  other  belligerent,  549-565. 
May  be  withheld  during  war,  549  note  1. 

Requisitioned  without  decision  of  prize  court,  733  et  seq. 

Sequestration  of,  550-554. 

Vessels  in  port  at  outbreak  of  war,  561-565,  565  note  8. 
ENEMY  VESSEL, 

Carrying  fugitives  from  besieged  port  not  exempt  from  capture,  707. 

Used  as  trading  ship  not  exempt  from  capture,  769  note  15. 

EQUALITY  OF  NATIONS,  10. 

EVACUATION,   CONVOYS   OF, 
Geneva  Convention,  1136. 

EXPANDING  BULLETS, 

Hague  Declaration  of  1899,  1133. 

EXPATRIATION, 

Act  of  Congress  of  March  2,  1907,  relating  to  expatriation  of  citizens  and 

their  protection  abroad,  156  note. 
Act  of  Congress  of  1868,  relating  to  Virginia  statute  of  1786,  155. 
British  Statute  of  May  12,  1870,  157. 
Virginia  statute  of  1786,  154. 

EXTRADITION,   404-428. 

Between  states  of  the  American  Union,  413. 

Not. for  political  offenses,  420-426,  426  note  91. 

Only  by  treaty  or  convention,  and  only  for  offense  specified  therein, 
405  et  seq. 

Statement  of  Elihu  Root,  Secretary  of  State,  that  action  of  State  De- 
partment in  extradition  is  judicial,  419  note  88. 

EXTRATERRITORIAL  JURISDICTION,  379  et  seq.,  385  note  58. 

FISHING  VESSELS, 

Engaged  in  inshore  fishing  exempt  from  capture,  12-16,  762-766. 

In  deep-sea  fi.shing  subject  to  capture,  762-766. 
Hague  Convention  of  1907  regarding,  1157. 

FLAG, 

Of  truce,  Hague  Convention  of  1907,  1143. 

Transfer  to  a  neutral.  Declaration  of  London,  1170,  1171. 
FORCE, 

Display  of,  504-509. 

FREIGHT, 

Allowed  to  captor,  1084.  1085. 

Neutral  caiTier,  1083. 
Forfeiture  in  case  of  carriage  of  contraband,  973-975. 

Scott  Int.Law 


I 


INDEX  1187 

[The  figures  refer  to  pages] 

FREIGHT— Continued, 

In  relation  to  captor's  expenses,  1083. 
To  be  charged  upon  whole  cargo,  1086. 

GASES, 

Asphyxiating,  Hague  Declaration  of  1899,  1133. 
Noxious,  Declaration  of  Washington,  1172,  1173. 

GENEVA  CONVENTION  OF  1906, 

For  amelioration  of  the  condition  of  the  wounded  in  armies  In  the  field. 

1133-1137. 
Hague  Convention  of  1907  for  the  adaptation  to  maritime  warfare  of  the 
principles  of,  1153-1156. 

GERMAN  PRACTICE  IN  THE  WORLD  WAR,  1914-1918, 
Contra  (The  Lusitania),  784-790,  798-803. 

GOOD  OFFICES  AND  MEDIATION,  474,  475. 
GOVERNMENT, 

Recognition  of,  by  foreign  state,  61  et  seq. 

HAGUE  CONVENTIONS  AND  DECLARATIONS, 

See  Conventions,  Declarations,  and  Resolutions. 
HIGH  SEAS,  1010. 
HOLY  SEE, 

Attitude  of  United  States  toward,  56  note  19. 

Is  it  a  state,  in  sense  of  international  law,  49-56. 

HOSPITALITY, 

Abuse  of,  858-864. 

HOSPITAL  SHIP, 

Exempt  from  capture,  If  strictly  used  as  such,  770. 

HUGHES,  MR.  JUSTICE  CHARLES  EVANS, 

Opinion  in  final  adjustment  of  Virginia  debt  to  be  assumed  by  West  Vir- 
ginia, 85  note  31. 

IMMUNITY  FROM  JURISDICTION,  278-336. 

Diplomatic  agents,  for  reasonable  time  after  expiration  of  mission,  291 
From  local  jurisdiction,  286-295. 
In  third  coimtries,  293-294. 
States  and  chief  of  states,  278-285. 

INDIAN  WARS,  538-541. 

INFECTION, 

Doctrine  of,  979  note  39. 

INQUIRY,  COMMISSIONS  OF,  475-476. 

INSURANCE, 

Placed  upon  permissible  intercourse  by  license,  639-642. 

Upon  enemy  property,  reasons  for  rule  against,  62G-639. 
INSURGENCY, 

Definition  and  nature  of,  548. 

Recognition  of,  544-548. 

INSURGENTS, 

As  distinguished  from  belligerents,  537,  538. 
Furnishing  merchant  vessel  with  arms  for,  901  et  seq. 
Relations  with,  892-911. 

INTERCOURSE   BETWEEN   BELLIGERENTS,   622-658. 
Case  of  Caleb  Cashing,  657  note  25. 
Case  of  Sir  Edgar  Speyer,  657  note  25. 
Generally  prohibited,  622-034,  622  note  1, 

INTEREST, 

During  war,  602,  603. 


1188  INDEX 

[The  figures  refer  to  pages] 

INTERNATIONAL  ARBITRATION,  476. 

INTERNATIONAL  JUSTICE,  PERMANENT  COURT  OF,  1113,  1120  1131. 

INTERNATIONAL  LAW, 

Cannot  be  made  by  any  one  state,  11. 

Definition  of,  8,  967.  968. 

Evidence  of,  7,  12,  13. 

Nature  and  extent  of,  1-18. 

Part  of  Austrian  law,  IS  note. 

Part  of  common  law,  12  note  8,  288,  289. 

Part  of  German  law,  18  note. 

Part  of  law  of  England,  3. 

Part  of  municipal  law,  and  does  not  need  to  be  proven  as  fact,  16. 

Sources  of,  3,  12,  13,  13  note  9. 

INTERNED  BELLIGERENTS  IN  NEUTRAL  TERRITORY,  ' 

Hague  Convention  of  1907,  1147,  1148. 

INTERNMENT,  864  note  14,  1161. 

JUDGMENT, 

De  facto,  48  note  16. 

JURISDICTION  OF  STATES,  265-428. 

Diplomatic  agents,  exempt  for  reasonable  time  after  expiration  of  mis- 
sion, 291. 

Exempt  from  .iurisdiction  in  third  countries,  293,  294. 
Local  jurisdiction,  286-295- 
Extraterritorial,  .337-371. 

Merchant  vessels,  349-359. 

Municipal  seizure  Ijeyond  three-mile  limit,  361-371. 

Offenses  committed  abroad,  371-393. 

Piracy,  337-349. 
Immunity  from,  278-336. 
Of  offenses  committed  abroad,  371-393. 

American  practice,  377,  378. 

British  practice,  .371,  372  note  50. 

Conflicting  theories,  392  uole  76. 
Public  vessels  and  military  forces  exempt,  .300-310. 
States  and  chiefs  of  states  immune,  278-285. 

Three-mile  limit,  distinction  between  seizure  under  municipal  and  inter- 
national law,  371  note  48. 

Municipal  seizure  beyond,  361-371. 

LAKES  AS  BOUNDARY,  222  et  seq. 

LAWS  OF  WAR, 

See  Hague  Conventions,  etc. 
Washington  resolution  for  commission  of  jurists  to  consider  amendment 
of,  1174. 
LEAGUE  OF  NATIONS, 
Covenant  of,  1109-1119. 
Members  of,  1119,  1119  note. 

LETTERS  OF  MARQUE  AND   REPRISAL,  516  note  1. 

LIBEL, 

Jurisdiction  of  offense  committed  abroad,  375,  376,  387,  392. 

LICENSE  TO  TRADE  WITH  ENEMY,  635-642,  642   note   14. 

LIENS, 

Antecedent  to  capture  not  allowed  in  prize  court,  10o7-1096. 

LIFE  INSURANCE, 

Effect  of  war  upon,  617-620,  620  note  24. 

LOANS  BY  NEUTRAL  CITIZENS  TO  INSURGENTS,  892-900,  900  note  14. 

LONDON,   DECLARATION   OF,   1162-1172. 


INDEX  1189 

tThe  figures  refer  to  pages] 

MAIL  STEAMER!, 

Subject  to  capture,  756. 

MARGINAL  SEAS,  243-251. 

Fisheries  within,  subject  to  laws  of  adjoining  states.  248  et  seq. 

MARITIME    LAW, 

Nature  and  extent,  16  note  10 

MARTIAL  LAW, 

Nature  and  definition  of,  according  to  British  practice,  729-732. 
According  to  practice  of  United  States,  724-728,  728  note  21. 
MEANS  OF  INJURING  THE  ENEMY, 

Sieges  and  bombardments,  Hague  Convention  of  1907,  1142,  -1143. 

MEDIATION,  475. 

MERCHANT  VESSELS, 

Condemned  by  prize  court  of  enemy,  subject  to  capture,  777-779. 
Conversion  into  war  ships,  Hague  Convention  of  1907,  1150. 
Crimes  committed  on,  punishable  in  home  country  or  local  port,  349-354. 
Regulations  regarding  crews  of  enemy  captured  by  a  belligerent,  Hague 

Convention  of  1907,  1157. 
Right  of,  to  carry  arms  for  defense,  799. 
Status  of  enemy,  at  outbreak  of  hostilities,  Hague  Convention  of  1907, 

1149,  1150. 
Subject  on  high  seas  to  laws  of  home  country,  355,  355  note  40. 

MILITARY  AUTHORITY  OVER  TERRITORY  OF  HOSTILE   STATE, 
Hague  Convention  of  1907,  1144-1146. 

MILITARY  FORCES  EXEMPT  FROM  LOCAL  JURISDICTION,  304. 

MINES, 

Hague  Convention  of  1907,  1150,  1151. 

MOB  VIOLENCE, 

Responsibility,  116. 

MUNICIPAL  SEIZURE, 

Beyond  three-mile  limit,  361-371. 

NATIONALITY,   134-172. 

As  distinct  from  domicile,  686-689. 

Case  of  Martin  Koszta,  who  had  declared  intention  to  become  American 

citizen,  172  note. 
Doctrine  of  dual  allegiance,  158. 

German  Imperial  and  State  Citizenship  Law  of  July  23,  1913,  157  note  11. 
Of  corporation,  when  all  incorporators  are  enemies,  669  et  seq. 
Of  property  in  and  during  transit,  811-822. 
Stateless  person,  167. 

NATURALIZATION,  138-154. 
By  marriage,  161  et  seq. 

By  treaty  (so-called  Bancroft  treaties),  155  note  10. 
Citizenship  of  person  born  in  United  States  of  parents  who  could  not 

be  naturalized,   146-148. 
Effect  upon  antecedent  military  service,  170. 
Effect  upon  civil  rights  of  attempt  of  British  subject  to  be  naturalized  in 

enemy  country  during  war,  478. 
In  Great   Britain  and   under   Constitution   and  laws   of   United   States, 

138-146. 
Intention   to  reside  required   in   naturalization   laws   of   United    States, 

148  et  seq. 
Of  British  subject  marrying  enemy  (German)  after  Armistice,  but  before 

conclusion  of  peace,  480. 

NATURE  AND  EXTENT  OF  INTERNATIONAL  ARBITRATION,  476,  477. 

NEUTRAL  FLAG, 

Transfer  to,  Declaration  of  London,  1170,  1171. 


1190  INDEX 

[The  figures  refer  to  pages] 

NEUTRAL  POWERS  AND  PERSONS  IN  LANT>  WARiFARB^ 
Hague  Convention  of  1907,  1146-1149. 

NEUTRAL  POWERS  IN  NAVAL  WAR, 
Hague  Convention  of  1907,  115S-1161. 

NEUTRAL  PRIZES, 

Destruction  of,  Declaration  of  London,  1169,  1170. 

NEUTRAL  TERRITORY, 

Belligerent  use  of,  823-848. 

NEUTRAL  TRADE, 

Between  home  port  and  port  of  colony  of  enemy,  928-931,  931  note  7. 
Between  Two  enemy  ports  in  time  of  war,  926-928. 
With  belligerents,  912-1035. 

NEUTRAL  TRANSPORT  IN  SERVICE  OF  BELLIGERENT,  880  et  seq. 

NEUTRAL  WATERS, 

Capture  in,  848-857. 

NEUTRALITY, 

Furnishing  arms  to  merchant  ship  of  insurgent,  for  transportation,  901 
et  seq. 

NEUTRALS, 

Assistance  to  belligerents,   865-911. 
Employment  of  armed  vessels  by,  1012-1021. 

NONINTERCOURSB,  486-492. 

OBJECTS  OF  ART, 

Exempt  from  capture,  760-762. 

OdCUPATION, 

As  affecting  status  of  occupied  country,  694-701. 

Conquest,  martial  law,  694-732.  , 

Of  Philippines   and   rights   of   United    States   in    occupied   territory    as 

against  territory  in  possession   of  insurgents,  717-724. 
Should  not  authorize   occupant  to  dispose   of  rights  beyond  period  of 

occupation,  709-717,  717  note  18. 
Subjects  inhabitants  of  occupied  territory  to  law  of  occupant,  707,  708. 

OFFENSES  COMMITTED  ABROAD, 
Jurisdiction  of,  371-393. 

American  practice,  377,  378. 
British  practice,  371,  372  note  50. 
Conflicting  theories,  392  note  76. 
Libel,  375,  376,  387,  392. 

ORDERS  IN  COUNCIL, 

Defining  expressions  "enemy  destination,"  "enemy  origin,"  and  "enemy 
property"  in  articles  3  and  4  of  Order  in  Council  of  March  11,  1915 
(January  10,   1917),  1177,   1178. 

Framing  reprisals  for  restricting  further  the  commerce  of  Germany 
(March  11,  1915),  1175-1177. 

Supplemental  to  orders  of  March  11,  1915,  and  January  10,  1917,  for  pre- 
venting commodities  from  reaching  or  leaving  enemy  countries  (Feb- 
ruary 16,  1917),  1179,  1180. 

OVERSEA  TRUST, 

Control  of  ultimate  destination,  1001,  1003  note  4A. 

PACIFIC  BLOCKADE,  510-513. 

PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES,  474-476. 

PARCEL  POST, 

Not  exempt  from  capture,  751. 

PARIS,   DECLARATION   OF,  1132. 


INDEX  1191 

[The  figures  refer  to  pages] 

PARTNERSHIP, 

Dissolved  by  war,  rights  of  euemy  partner  preserved,  and  profits  arising 

out  of  use  of  property  recoverable  after  peace,  594-596. 
EfCeet  of  war  upon,  604-613. 

PEACE, 

Capture  of  enemy  property  after  declaration  of,  1102-1107. 
Compulsory  measures  of  redress  in  time  of,  486-521. 
Declaration  of,  without  act  of  forfeiture  restores  title,  1099. 
Intervention  of,  bars  title  of  former  owner,  1098. 
Preliminaries  of,  nature  and  effect,  109S  note  2,  1100. 
Rights  and  duties  of  nations  in  time  of,  20-485. 

PEACE  TREATY, 

Between  Spain  and  United  States,  when  effective,  445-446. 

Versailles,  when  effective,  440,  441. 

When  effective,  438-446. 
PERMANENT  COURT  OF  ARBITRATION  AT  THE  HAGUE,  474-477. 

Award  by  majority,  477. 
Ends  controversy,  477. 
Only  binds  states  concluding  compromis,  477. 

Method  of  appointing  judges,  476. 

Right  to  revise  may  be  reserved  in  compromis,  477. 

PERMANENT  COURT  OF  INTERNATIONAL  JUSTICE  AT  THE  HAGUE. 

1120-1131. 
PERMISSIBLE  INTERCOURSE, 

Between  belligerents,  635-657. 

By  license,  635-638. 
PERSONS  NOT  CONTRABAND,  877  et  seq. 

PIRACY,  544-548,  1009.  ,  ,  .  t,  v,     w 

By  municipal   statute   or   International   convention   only   punishaDle  DT 

parties  thereto,  338  et  seq. 
Definition   of,   in   international  law,  337. 

POLITICAL  OFFENSES, 

Definition  of,  420  et  seq. 
POSTAL  CORRESPONDENCE, 

Hague  Convention  of  1907,  1157. 
See,  also,  Correspondence. 

POSTLIMINIUM, 

Doctrine  of,  705-707. 

PRESCRIPTION, 

Applicable  in  international  law,  252-/0&. 

PRISONERS  OF  WAR,  . 

Contract  for  support  of,  permissible,  647,  648. 

Hague  Convention  of  1907,  1139-1142. 
PRIVATE  PROPERTY  DESTROYED  IN  MILITARY  OPERATIONS, 

Principle  and  liability  for,  509  note  1. 
PRIVATE  RIGHTS  AND  CONTRACTS,  585-621. 

PRIVATEER, 

Definition  of,  531  note  6. 
PRIVILEGES  OF  AMBASSADORS  AND  OTHER  PUBLIC  MINISTERS, 
•    Act  of  1708,  1. 

Interpretation  of  this  act,  288. 

PRIZE, 

Adjudication  of,  1036-1096. 

Condomnation  necessary,  1036-1044. 

Destruction  of,  780-803. 

Neutral,  destruction  of,  Declaration  of  London,  1169,  1170. 


1192  INDEX 

[The  figures  refer  to  pages] 

PRIZE— Continued, 

Not  allowed  to  remain  in  United  States,  858  et  seq. 
Towage  of,  by  neutral,  873. 

PRIZE  COURTS,  1044-1069. 
Authority  of,  1044-1069. 
Bound  by  act  of  Parliament,  1052  et  seq. 
Cannot  be  established  by  President,  1068. 
Decisions  and  effect  of.  1069-1082. 
In  allied  country,  1075,  1076. 

In  country  of  captor  while  prize  lies  in  neutral  port,  1098  note  3. 
In  how  far  conclusive,  1076-1082,  10S2  note  21^ 
In  neutral  country,  1070  et  seq. 
Judgment  of,  divests  title  of  owner  and  vests  title  in  captor,  777-779, 

1083. 
Jurisdiction    of,   1044-1069. 
Law  administered  in,  1052  et  seq. 
Not  bound  by  illegal  instructions,  5. 

Not  bound  by  order  in  council  contrary  to  law  of  nations,  unless  in  ac- 
cordance with  act  of  Parliament.  1052  et  seq. 
Not  ordinarily  competent  to  condemn  property  captured  on  laud,   1063 
et  seq. 

PROBABLE  CAUSE  FOR  CAPTURE,  744-750,  750  note  3. 
PRODUCTS  OF  ENEMY  SOIL  ENEMY  PROPERTY,  680-683. 
PROPERTY, 

Nationality  of,  during  transit.  811-822. 
See,  also.  Enemy  Property. 

PROTECTION, 

To  American  citizens  in  foreign  country,  171  note. 
To  diplomatic  agents,   295-299. 

PUBLIC  VESSELS  AND  MILITARY  FORCES, 
Exempt  from  local  jurisdiction,  300-310. 

RAILWAY  MATERIAL, 

Hague  Convention  of  1907,  1148. 

RANSOM  CONTRACTS  PERMISSIBLE,  644-646. 

RECAPTURE,  772-773,  777. 

RECOGNITION  OF  BELLIGERENCY  AND  INSURGENCY,  542-548. 

RED  CROSS, 

Distinctive    emblem    of    sanitary    formations,    etc.,    Geneva    Convention, 
1136,  1137. 

REPRISALS,  514-521. 

Limited  war  of  1798  between  United  States  and  France  compared  witti 

reprisals,  517-520,  520  note  3. 
Order  in  council  (March  11,  1915),  1175-1177. 

REQUISITION  OF  ENEMY  PROPERTY  BEFORE  DECISION   OF  PRIZE 
COURT,  733  et  seq. 

RESERVISTS, 

Transportation  of,  886. 

RESISTANCE  TO  SEARCH,  1019,  1171. 

RETALIATION,  499-503. 

Affecting  neutral  rights  and  property  permissible  according  to  British 
prac-tice,  804-810. 

Against  enemy  for  violation  of  international  law  permissible,  804-810. 

Contrary  to  practice  of  United  States,  810  note  4. 

RETORSION, 

Nature  of,  516  note  1. 


INDEX  1193 

[The  figures  refer  to  pages] 

RIGHTS  AND  DUTIES   OF  NEUTRAL  POWERS   IN   WAR   ON   LAND, 

Hague  Convention  of  1907,  1146,  1147. 

RIVERS, 

As  boundary,   200-20G. 

Effect  of  sudden  change  of  channel  upon  boundary,  214-217. 

Navigation  of,  200  note  18. 

ROOT,  ELIHU,  Secretary  of  State, 

Effect  on  neutral  rights  by  acceptance  of  risks  of  contraband  and  ap- 
plication of  continuous  voyage,  9.55  note  26. 
Riole  in  creation  of  permanent  court  of  international  justice,  1120  note. 
Statement  that  action  of  Department  of  State  in  extradition  is  judicial 
(the  Pouran  Case),  419  note  88. 
RULE  OF  1756,  926-931. 

RUSSIA, 

Practice  of,  in  war  with  Japan  (1904-1905),  79.3-798. 
Recognition  of  Soviet  government  by  Great  Britain,  61. 

ST.  PETERSBURG,  DECLARATION  OF,  1132. 

SALVAGE, 

For  recapture  based  upon  reciprocity,  772,  773. 

SANITARY  FORMATIONS  AND  ESTABLISHMENTS, 

Geneva  Convention,   1134-1137. 

SEAKCH  AND  VISIT,  1003-1011. 
Declaration  of  Washington,  1172. 
Resistance  to.  Declaration  of  London,  1171. 

SERVITUDES,  255-264. 

Recognized  by  Germany  in  favor  of  the  Netherlands,  264  note  35. 
Recognized  by  United  States,  255-200. 

Rejected  by  arbitrary  award  of  1910  between  United  States  and  Great 
Britain,  260-264. 

SICK  AND  WOUNDED, 

Belligerent,  tended  in  neutral  territory,  Hague  Couveutiou  of  1907,  1148. 
Geneva  Convention,  1133-1134. 
Hague  Convention  of  1907,  1142 

SIEGES, 

Hague  Convention  of  1907,  1142,  1143. 

SLAVE  TRADE,  394. 

SOUNDS  AND  STRAITS, 
As  boundaries,  217. 
Controversies  concerning,  228  note  25. 

SOVEREIGN, 

Deposition  of,  does  not  abate  suit,  68. 
Detention  within  foreign  territory,  302. 
Immunity  of,  278-285. 
Suability,  278-285. 

SPIES, 

Hague  Convention  of  1907,  1143. 

STATE, 

Acts  of,  394-403,  482-485. 

According  to  American  practice,  agent  liable,  752-755. 
According  to  British  practice,  agent  not  liable  for  illegal  acts  com- 
mitted under  instructions,   although  state  is,  394,  402. 
Bind  state,  not  individual,  394-397,  397   note  78. 
Not  applicable  within  British  jurisdiction,  482. 
Confederate  States,  nature  of  union,  37,  41  et  seq. 

Status  of,  48  note  16. 
Continuation    thereof,   although   form   of   government    changes,    48   note 
16,  68. 


1194  INDEX 

[The  figures  refer  to  pages] 

STATE— Continued, 
De  facto,  41  et  seq. 
Definition  of,  19,  34,  35,  39  note  15. 
Distinction  between  government  and  state,  35,  36. 
Ionian  Islands  a  protected  state,  21-28. 
Jurisdiction  of,  26.5-428. 

Exclusive  within  own  territory,  even  regarding  foreign  rights,  265- 

268. 
In  case  of  foreign  rights,  such  as  patent  laws,  266-268,  268  note  2. 
In  case  of  vessel  or  property  brought  involuntarily  into  its  territory, 

273—215. 
In  general,  265-277. 
Moral  person  or  corporation,  20. 
Of  the  American  Union,  .35,  36. 
•  Personal  union  of,  28  note  4. 
Protected  state,  21-28,  28  note  4. 
Recognition  of,  how  made,  57-61. 

By  government,  not  by  courts,  73  note  27. 
View's  of  Secretary  of  State  Adams  on,  74  note. 
Responsibility  of  agent  of,  in  armed  forces,  for  damages,  130. 
Responsibility  of  state  for  breach  of  contract  or  concession  to  subjects 
or  citizens  of  foreign  states,  123. 
In  case  of  denial  of  justice,  128,  129. 

In  case  of  outbreaks  affecting  resident  foreigners,  116,  122  note  45. 
Semi-sovereign,  29-33. 
Stateless  person,  167. 
Succession  of. 

Adjustment  of  Virginia  debt  to  be  assumed  by  West  Virginia,  85 

note  31. 
Effect  of  American  Revolution  on  antecedent  corporation,  for  religious 

purposes,  93-98. 
Effect  of  cession  of  Porto  Rico  upon  rights  of  the  Catholic  Church, 

101-108. 
Effect  of  conquest  of  Canada  upon  private  rights,  99-101. 
Effect  on  law,  109-115. 
Effect  on  private  rights,  109  note. 
Effect  on  public  rights,  74-80. 

Effect  on  public  rights  of  states  of  the  American  Union,  81-85. 
English  law  not  applicable  to  natives  of  India  or  dependencies  of 

similar  nature,  115  note  42. 
Law  of  a  political  nature,  inconsistent  with  law  of  successor,  abro- 
gated, 111. 
Law  of  discoverer  prevails  in  uninhabited  country,  110  et  seq. 
Laws  not  affected,  unless  expressly  modified,  110,  111, 
Municipality  not  affected  by  change  of  sovereignty,  86-89. 
Private  property  rights  unaffected,  90-99. 

Settlement  by  Acting  Secretary  of  State  Bacon  of  claims  of  Catho- 
lic Church  in  Porto  Rico  after  cession  to  the  United  States,  108 
note  39. 
Settlement  of  claims  of  the  Roman  Catholic  Church  in  Porto  Rico 

upon  cession  to  United  States,  85  note  31. 
Succession  to  property  of  Confederate  States,  90-92. 
Territory  of,  173-264. 
Accretion,  195-200. 
Acquisition,  modes  of,  173-200. 
Avulsion,  214-217. 
Conquest  and  cession,  181-195. 
Discovery  and  occupation,  173-180. 
Discovery  followed  by  occupation  gives  title,  175. 

STATUTE  OF  LIMITATIONS, 
Effect  of  war  upon,  613-617. 

STRAITS  AS  BOUNDARY,  217. 


INDEX  1195 

-    [The  figures  refer  to  pages] 

SUBMARINES, 

Destruction  of  Lusitania,  784-790. 

Subject  to  laws  of  visit  and  search.  1172. 

Use  of,  in  warfare.  Declaration  of  Washington,  1172,  1173. 

SUCCESSION  OF  STATES, 
See  State,  Succession  of. 

TERRITORY  OF  STATES, 
See  State,  Territory  of. 

THREE-jSHLE  limit,  243-251. 

Distinction  between  seizures  under  municipal  and  international  law,  371 

note  48. 
Municipal  seizure  beyond,  361-371. 

TRADE, 

Neutrals  with  belligerents,  912-1035. 

With  enemy,  general  statement  of  and  reason  for  prohibition.  631-634. 
Within  enemy  jurisdiction  as  distinguished  from  trading  across  enemy 
lines,  654-657. 

TRANSFER, 

Of  vessels  during  or  in  anticipation  of  war.  1022-1035. 
To  neutral  flag.  Declaration  of  London,  1170,  1171. 

TRANSIT, 

Nationality  of  property  during,  811-822. 

TRANSPORT, 

Neutral,  in  service  of  belligerent,  880  et  seq. 

TREATIES,  429-^73. 

Bancroft,  155. 

Constitutional   limits   upon  treaty-making   power,   473   note  3. 

Date  from  signature  in  case  of  public  rights,  from  ratification  in  case 
of  private  rights,  443-445. 

Definition  of,  429-432. 

Effect  of  arbitral  award  upon  parties  thereto,  468  note  19. 

Effect  of,  on  laws  of  states  of  American  Union  during  Revolution,  453- 
457,  457  note  15. 

Effect  of  war  upon,  469-473. 

Extinction  of,  468-473.  ' 

Interpretation  of,  446-452,  451  note  12. 

Modification  of,  469. 

Nature  and  extent  of,  429-4,52. 

Not  binding  in  United  States  unless  approved  by  Senate  through  ex- 
change of  ratifications,  445,  446. 

Of  1783  between  Great  Britain  and  United  States  when  acknowledged 
did  not  create  independence,  which  dates  from  July  4,  1776,  442. 

Of  Versailles  effective  not  from  date  of  signature,  but  from  deposit  of  rat- 
ifications, and  for  powers  depositing  ratifications,  440,  441. 

Relation  of  judiciary  to  contracting  states,  463-468. 

Relation  to  Constitution  and  state  statute,  433^37. 

Supersede  act  of  Congress,  state  Constitution,  or  law  of  state  of  Ameri- 
can Union,  when  inconsistent  with  its  terms,  458-462. 

Superseded  by  act  of  Congress  inconsistent  with  terms,  so  far  as  United 
States  is  concerned,  but  international  obligation  remains  to  be  prose- 
cuted through  diplomatic  channels,  45S-462,  462  note  J16. 

Time  of  going  into  effect,  438-446. 

TRUCE, 

Flags  of,  Hague  Convention  of  1907,  1143. 

ULTIMATE  DESTINATION,  998-1003,  1000  note  48. 

Control  of  by  Oversea  Trust,  etc.,  1001,  1003  note  49. 


1196  INDEX 

[The  figures  refer  to  pages] 

UNNEUTRAL    SERVICE,    865-891. 

By  trading  between  two  ports  of  enemy,  926-931. 

Carriage  of  dispatclies  of  belligerent,  867. 

Carriage  of  persons  in  military  service  of  belligerents,  865. 

Declaration  of  London,  1168,  1169. 

Distinction  between,  and  fleet  auxiliaries,  885  note  10. 

Information  given  to  belligerent,  890,  891  note  12. 

Neutral  transport,  880  et  seq. 

Towage  ®f  prize  by  neutral,  873. 

Transportation  of  reservists,  886. 

VESSELS, 

Transfer  of,  during  or  in  anticipation  of  war,  1022-1035,  1028  note  56, 
1035  note  59. 
See,  also.  Merchant  Vessels. 

VISIT  AND  SEARCH,  1003-1011. 
Only  in  time  of  war,  1009. 
Submarines  subject  to  laws  of.  Declaration  of  Washington,  1172. 

WAR, 

Capture  after  end  of,  1097,  1098  note  2. 

Civil,   as   distinguished   from   international,   not    declared,   531-536,   536 

note  7. 
Commencement  of,  522-524. 

Commencement  of,  without  proclamation,  524  note  4. 
Definition,  nature  and  purpose  of,  522-536. 
Effect  upon  treaties,  see  Treaties. 
On  land,  Hague  Convention  of  1907,  1138-1146. 
Parties  to,  537-541. 

Rights  and  duties  of  nations,  522  et  seq. 
Termination  of,  1097-1108. 

In  each  of  the  Confederate  States,  1100-1102. 
With  Indians,  538-541. 

WARNING, 

French  rule  regarding,  937  note  12. 
WASHINGTON, 

Three  rules  of  (1871),  843. 

WASHINGTON,  DECLARATION   OF, 

See  Conventions,  Declarations,  and  Rtesolutiong. 

WASHINGTON  RESOLUTION  FOR  COMMISSION  OF  JURISTS  TO  CON- 
SIDER AMENTDMENT  OF  LAWS  OF  WAR,  1174. 

WOUNDED, 

See  Sick  and  Wounded. 

WRITERS, 

On  international  law,  12. 

YACHT, 

Not  a  navire  de  commerce,  565  note. 


WEST  PUBLISHING  CO.,  PBINTERS,  ST.  PAUL,  MHW. 


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